4i;  ■ 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OE  CALIEORNIA 

RIVERSIDE 


THE    CONTINENTAL 
LEGAL    HISTORY   SERIES 

Volume  Three 


HISTORY 

OF 

FRENCH    PRIVATE    LAW 


The  Continental  Legal  History  Series 

Publ'isJied  under' the  auspices  of  the 

Association  of  American  Law  Schools 


I.  A  GENERAL  SURVEY  OF  EVENTS,  SOURCES,  PERSONS, 
AND  MOVEMENTS  IN  CONTINENTAL  LEGAL  HISTORY. 
By  Various  Authors.  Translated  by  Rapelje  Howell,  F.  S. 
Philbrick,  John  Walgren,  and  John  H.  Wigmore.    $6.00  net. 

II.  GREAT  JURISTS  OF  THE  WORLD,  FROM  PAPINIAN  TO 
VON  IHERING.  By  Various  Authors.  Illustrated.  (Extra  vol- 
ume.    By  arrangement  with  John  Murray,  London.)     $5.00  net. 

III.  HISTORY  OF  FRENCH  PRIVATE  LAW.  By  J.  Brissaud,  late 
of  the  University  of  Toulouse.  Translated  by  Rapelje  Howell,  of 
the  New  York  Bar.     $5.00  net. 

IV.  HISTORY  OF  GERMANIC  PRIVATE  LAW.  By  Rudolph 
HuEBNER,  of  the  University  of  Rostock.  Translated  by  Dr.  Francis 
S.  Philbrick,  of  New  York,  N.  Y.     $4.50  net. 

V.  HISTORY  OF  CONTINENTAL  CRIMINAL  PROCEDURE.    By 

A.  EsMEiN,  Professor  in  the  University  of  Paris,  with  chapters  by 
Francois  Garraud,  of  the  University  of  Lyon,  and  C  J.  A.  Mitter- 
MAiER,  late  of  the  University  of  Heidelberg.  Translated  by  John 
Simpson,  of  the  New  York  Bar.     $4.50  net. 

VI.  HISTORY  OF  CONTINENTAL  CRIMINAL  LAW.  By  Ludwig 
von  Bar,  of  the  University  of  Gottingen.  Translated  by  Thomas  S. 
Bell,  of  the  Tacoma  Bar.    $4.00  net. 

VII.  HISTORY    OF    CONTINENTAL    CIVIL    PROCEDURE.      By 

Arthur  Engelmann,  Chief  Justice  of  the  Court  of  Appeals  at  Breslau, 
with  a  chapter  by  E.  Glasson,  late  of  the  University  of  Paris.  Trans- 
lated by  Robert  W.  Millar,  of  Northwestern  University.     $4.00  net. 

VIII.  HISTORY  OF  ITALIAN  LAW.  By  Carlo  Calisse,  of  the  Italian 
Council  of  State.  Translated  by  John  Lisle,  of  the  Philadelphia 
Bar.     $5.00  net. 

IX.  HISTORY  OF  FRENCH  PUBLIC  LAW.  By  J.  Brissaud,  late  of 
the  University  of  Toulouse.  Translated  by  James  W.  Garner,  of 
the  University  of  Illinois.     $4.50  net. 

X.  HISTORY  OF  CONTINENTAL  COMMERCIAL  LAW.  By  Paul 
HuvELiN,  of  the  University  of  Lyon.  Translated  by  Ernest  G. 
Lorenzen,  of  the  University  of  Wisconsin.     $5.50  net. 

XL  THE  EVOLUTION  OF  LAW  IN  EUROPE.  By  Gabriel  Tarde, 
Raoul  de  la  Grasserie,  and  others.     $5.00  net. 


THE   CONTINENTAL    LEGAL    HLSTORY    SERIES 

Published  under  the  auspices  of  the 
ASSOCIATION   OF   AMERICAN   LAW   SCHOOLS 


A  HISTORY 

OF 

FRENCH   PRIVATE   LAW 


JEAN'BRISSAUD 

LATE    PROFESSOR    OF    LEGAL    HISTORY    IN    THE    UNIVERSITY 
OF    TOULOUSE 


TRANSLATED  FROM  THE  SECOND  FRENCH  EDITION 

BY 

RAPELJE    HOWELL 

OF   THE    NEW   YOKlv   BAB 


WITH     INTRODUCTIONS     BY 

W.   S.   HOLDSWORTH 

READER  IN  ENGLISH  LAW,  ST.  JOHn's  COLLEGE,  OXFORD 
AND 

JOHN   II.  WIGMORE 

PROFESSOR    OF    LAW,    NORTHWESTERN    UNIVERSITY 


BOSTON 

LITTLE,  BROWN,  AND   COMPANY 

1912 


KJJ 


Copyright,  1912, 
Bt  Little,  Brown,  and  Company. 


All  rights  reserved 


The  University  Press,  CAMnRiPOE,  U.S.A. 


EDITORIAL  COMMITTEE 

OF  THE 

ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 

Ernst  Freund,  Professor  of  Law  in  the  University  of  Chicago. 

CiiARLES  H.  HuBERiCH,  ProfessoF  of  liaw  in  Stanford  University. 

Ernest  G.  Lorenzen,  Professor  of  Law  in  the  University  of 
Wisconsin. 

Wm.  E.  Mikell,  Professor  of  Law  in  the  University  of  Penn- 
sylvania. 

John  H.  Wigmore,  Chairman,  Professor  of  Law  in  Northwestern 
University. 


LIST  OF  TRANSLATORS 

Thomas  S.  Bell,  of  the  Tacoma  Bar. 

James    W.   Garner,    Professor  in   the  State   University   of 

lUinois. 
Rapeue  Howell,  of  the  New  York  Bar. 
John  Lisle,  of  the  Philadelphia  Bar. 
Ernest  G.  Lorenzen,  of  the  Editorial  Committee. 
Robert  W,  Millar,  Lecturer  in  Northwestern  University. 
Francis  S.  Philbrick,  of  Washington,  D.  C. 
John  Simpson,  of  the  New  York  Bar. 
John  Walgren,  of  the  Chicago  Bar. 
John  H.  Wigmore,  of  the  Editorial  Committee. 


I  might  instance  in  other  professions  the  obligation  men  lie  under  of 
applying  themselves  to  certain  parts  of  History;  and  I  can  hardly  for- 
bear doing  it  in  that  of  the  Law,  —  in  its  nature  the  noblest  and  most 
beneficial  to  mankind,  in  its  abuse  and  debasement  the  most  sordid  and 
the  most  pernicious.  A  lawyer  now  is  nothing  more  (I  speak  of  ninety- 
nine  in  a  hundred  at  least),  to  use  some  of  Tully's  words,  "nisi  leguleius 
quidem  cautus,  et  acutus  praeco  actionum,  cantor  formularum,  auceps 
syllabarum."  But  there  have  been  la\vyers  that  were  orators,  philoso- 
phers, historians:  there  have  been  Bacons  and  Clarendons.  There  will 
be  none  such  any  more,  till  in  some  better  age  true  ambition,  or  the  love 
of  fame,  prevails  over  avarice;  and  till  men  find  leisure  and  encourage- 
ment to  prepare  themselves  for  the  exercise  of  this  profession,  by  climb- 
ing up  to  the  vantage  ground  (so  my  Lord  Bacon  calls  it)  of  Science, 
instead  of  grovelling  all  their  lives  below,  in  a  mean  but  gainful  applica- 
tion of  all  the  little  arts  of  chicane.  Till  this  happen,  the  profession  of  the 
law  will  scarce  deserve  to  be  ranked  among  the  learned  professions.  And 
whenever  it  happens,  one  of  the  vantage  grounds  to  which  men  must 
cUmb,  is  Metaphysical,  and  the  other.  Historical  Knowledge.  Henry 
St.  John,  Viscount  Bolingbroke,  Letters  on  the  Study  of  History  (1739). 

Whoever  brings  a  fruitful  idea  to  any  branch  of  knowledge,  or  rends 
the  veil  that  seems  to  sever  one  portion  from  another,  his  name  is  written 
in  the  Book  among  the  builders  of  the  Temple.  For  an  English  lawyer 
it  is  hardly  too  much  to  say  that  the  methods  which  Oxford  invited  Sir 
Henry  Maine  to  demonstrate,  in  this  chair  of  Historical  and  Comparative 
Jurisprudence,  have  revolutionised  our  legal  history  and  largely  trans- 
formed our  current  text-books. — Sir  Frederick  Pollock,  Bart.,  The 
History  of  Comparative  Jurisprudence  (Farewell  Lecture  at  the  Univer- 
sity of  Oxford,  1903). 

No  piece  of  History  is  true  when  set  apart  to  itself,  divorced  and  iso- 
lated. It  is  part  of  an  intricately  pieced  whole,  and  must  needs  be  put 
in  its  place  in  the  netted  scheme  of  events,  to  receive  its  true  color  and 
estimation.  We  are  all  partners  in  a  common  undertaking,  —  the  illumi- 
nation of  the  thoughts  and  actions  of  men  as  associated  in  society,  the 
life  of  the  human  spirit  in  this  famihar  theatre  of  cooperative  effort  in 
which  we  play,  so  changed  from  age  to  age,  and  yet  so  much  the  same 
throughout  the  hurrying  centuries.  The  day  for  synthesis  has  come.  No 
one  of  us  can  safely  go  forward  without  it.  —  Woodrow  Wilson,  The 
Variety  and  Unity  of  History  (Address  at  the  World's  Congress  of  Arts 
and  Science,  St.  Louis,  1904). 


CONTINENTAL  LEGAL  HISTORY  SERIES 
GENERAL   INTRODUCTION   TO   THE    SERIES 

"All  history,"  said  the  lamented  master  Maitland,  in  a  memo- 
rable epigram,  "  is  but  a  seamless  web ;  and  he  who  endeavors  to 
tell  but  a  piece  of  it  must  feel  that  his  first  sentence  tears  the 
fabric." 

This  seamless  web  of  our  own  legal  history  unites  us  inseparably 
to  the  history  of  Western  and  Southern  Europe.  Our  main  interest 
must  naturally  center  on  deciphering  the  pattern  which  lies 
directly  before  us,  —  that  of  the  Anglo-American  law.  But  in 
tracing  the  warp  and  woof  of  its  structure  we  are  brought  inevi- 
tably into  a  larger  field  of  vision.  The  story  of  Western  Continental 
Law  is  made  up,  in  the  last  analysis,  of  two  great  movements, 
racial  and  intellectual.  One  is  the  Germanic  migrations,  planting 
a  solid  growth  of  Germanic  custom  everywhere,  from  Danzig 
to  Sicily,  from  London  to  Vienna.  The  other  is  the  posthumous 
power  of  Roman  law,  forever  resisting,  struggling,  and  coalescing 
with  the  other.  A  thousand  detailed  combinations,  of  varied 
types,  are  developed,  and  a  dozen  distinct  systems  now  survive 
in  independence.  But  the  result  is  that  no  one  of  them  can  be 
fully  understood  without  surveying  and  tracing  the  whole. 

Even  insular  England  cannot  escape  from  the  web.  For,  in 
the  first  place,  all  its  racial  threads  —  Saxons,  Danes,  Normans  — 
were  but  extensions  of  the  same  Germanic  warp  and  woof  that 
was  making  the  law  in  France,  Germany,  Scandinavia,  Nether- 
lands, Austria,  Switzerland,  Northern  Italy,  and  Spain.  And, 
in  the  next  place,  its  legal  culture  was  never  without  some  of  the 
same  intellectual  influence  of  Roman  law  which  was  so  thoroughly 
overspreading  the  Continental  peoples.  There  is  thus,  on  the 
one  hand,  scarcely  a  doctrine  or  rule  in  our  own  system  which  can- 
not be  definitely  and  profitably  traced  back,  in  comparison,  till 
we  come  to  the  point  of  divergence,  where  we  once  shared  it  in 
common  with  them.  And,  on  the  other  hand,  there  is,  during  all 
the  intervening  centuries,  a  more  or  less  constant  juristic  socia- 
bility (if  it  may  be  so  called)  between  Anglo-American  and  Con- 

ix 


CONTINENTAL   LEGAL   HISTORY   SERIES 

tinental  Law;  and  its  reciprocal  influences  make  the  story  one 
and  inseparable.  In  short,  there  is  a  tangled  common  ancestry, 
racial  or  intellectual,  for  the  law  of  all  Western  Europe  and  ourselves. 

For  the  sake  of  legal  science,  this  story  should  now  become  a 
familiar  one  to  all  who  are  studious  to  know  the  history  of  our 
own  law.  The  time  is  ripe.  During  the  last  thirty  years  Euro- 
pean scholars  have  placed  the  history  of  their  law  on  the  footing 
of  modern  critical  and  philosophical  research.  And  to-day,  among 
ourselves,  we  find  a  marked  widening  of  view  and  a  vigorous 
interest  in  the  comparison  of  other  peoples'  legal  institutions. 
To  the  satisfying  of  that  interest  in  the  present  field,  the  only 
obstacle  is  the  lack  of  adequate  materials  in  the  English  language. 

That  the  spirit  of  the  times  encourages  and  demands  the  study 
of  Continental  Legal  History  and  all  useful  aids  to  it  was  pointed 
out  in  a  memorial  presented  at  the  annual  meeting  of  the  Asso- 
ciation of  American  Law  Schools  in  August,  1909: 

"The  recent  spread  of  interest  in  Comparative  Law  in  general  is 
notable.  The  Comparative  Law  Bureau  of  the  American  Bar  Associa- 
tion; the  Pan-American  Scientific  Congress;  the  American  Institute 
of  Criminal  Law  and  Criminology;  the  Civic  Federation  Conference 
on  Uniform  Legislation;  the  International  Congress  of  History;  the 
libraries'  accessions  in  foreign  law,  —  the  work  of  these  and  other 
movements  touches  at  various  points  the  bodies  of  Continental  law. 
Such  activities  serve  to  remind  us  constantly  that  we  have  in  English 
no  histories  of  Continental  law.  To  pay  any  attention  at  all  to  Con- 
tinental law  means  that  its  history  must  be  more  or  less  considered. 
Each  of  these  countries  has  its  own  legal  system  and  its  own  legal 
history.  Yet  the  law  of  the  Continent  was  never  so  foreign  to  Eng- 
lish as  the  English  law  was  foreign  to  Continental  jurisprudence. 
It  is  merely  maintaining  the  best  traditions  of  our  own  legal  litera- 
ture if  we  plead  for  a  continued  study  of  Continental  legal  history. 

"  We  believe  that  a  better  acquaintance  with  the  results  of  modern 
scholarship  in  that  field  will  bring  out  new  points  of  contact  and 
throw  new  light  upon  the  development  of  our  own  law.  Moreover, 
the  present-day  movements  for  codification,  and  for  the  reconstruc- 
tion of  many  departments  of  the  law,  make  it  highly  desirable  that 
our  profession  should  be  well  informed  as  to  the  history  of  the  nine- 
teenth century  on  the  Continent  in  its  great  measures  of  law  reform 
and  codification. 

"  For  these  reasons  we  believe  that  the  thoughtful  American  lawyers 
and  students  should  have  at  their  disposal  translations  of  some  of 
the  best  works  in  Continental  legal  history." 

And  the  following  resolution  was  then  adopted  unanimously  by 
the  Association: 


CONTINENTAL   LEGAL   HISTORY    SERIES 

"  That  a  committee  of  five  be  appointed,  on  Translations  of  Conti- 
nental Legal  History,  with  authority  to  arrange  for  the  translation 
and  publication  of  suitable  works." 

The  Editorial  Committee,  then  appointed,  spent  two  years  in 
studying  the  field,  making  selections,  and  arranging  for  trans- 
lations. It  resolved  to  treat  the  undertaking  as  a  whole;  and  to 
co-ordinate  the  series  as  to  (1)  periods,  (2)  countries,  and  (3) 
topics,  so  as  to  give  the  most  adequate  survey  wuthin  the  space- 
limits  available. 

(1)  As  to  j)eriods,  the  Committee  resolved  to  include  modern 
times,  as  w'ell  as  early  and  mediseval  periods;  for  in  usefulness 
and  importance  they  were  not  less  imperative  in  their  claim  upon 
our  attention.  Each  volume,  then,  was  not  to  be  merely  a  valu- 
able torso,  lacking  important  epochs  of  development;  but  was 
to  exhibit  the  history  from  early  to  modern  times. 

(2)  As  to  countries,  the  Committee  fixed  upon  France,  Ger- 
many, and  Italy  as  the  central  fields,  leaving  the  history  in  other 
countries  to  be  touched  so  far  as  might  be  incidentally  possible. 
Spain  would  have  been  included  as  a  fourth;  but  no  suitable  book 
was  in  existence;  the  unanimous  opinion  of  competent  scholars 
is  that  a  suitable  history  of  Spanish  law  has  not  yet  been  written. 

(3)  As  to  iopics,  the  Committee  accepted  the  usual  Continental 
divisions  of  Civil  (or  Private),  Commercial,  Criminal,  Procedural, 
and  Public  Law,  and  endeavored  to  include  all  five.  But  to  repre- 
sent these  five  fields  under  each  principal  country  would  not  only 
exceed  the  inevitable  space-limits,  but  would  also  duplicate  much 
common  ground.  Hence,  the  grouping  of  the  individual  volumes 
was  arranged  partly  by  topics  and  partly  by  countries,  as  follows: 

Commercial  Law,  Criminal  Law,  Civil  Procedure,  and  Criminal 
Procedure,  were  allotted  each  a  volume;  in  this  volume  the  basis 
was  to  be  the  general  European  history  of  early  and  mediaeval 
times,  with  special  reference  to  one  chief  country  (France  or 
(jermany)  for  the  later  periods,  and  with  an  excursus  on  another 
chief  country.  Then  the  Civil  (or  Private)  Law  of  France  and 
of  Germany  was  given  a  volume  each.  To  Italy  was  then  given 
a  volume  covering  all  five  parts  of  the  field.  For  Public  Law  (the 
subject  least  related  in  history  to  our  own),  a  volume  was  given 
to  France,  where  the  common  starting  point  with  England,  and 
the  later  divergences,  have  unusual  importance  for  the  history 
of  our  courts  and  legal  methods.  Finally,  two  volumes  were 
allotted  to  general  surveys  indispensable  for  viewing  the  connec- 

xi 


CONTINENTAL   LEGAL   HISTORY    SERIES 

tion  of  parts.  Of  these,  an  introductory  volume  deals  with  Sources, 
Literature,  and  General  Movements,  —  in  short,  the  external 
history  of  the  law,  as  the  Continentals  call  it  (corresponding  to 
the  aspects  covered  by  Book  I  of  Sir  F.  Pollock  and  Professor 
F.  W.  Maitland's  "History  of  the  English  Law  before  Edward  I") ; 
and  a  final  volume  analyzes  the  specific  features,  in  the  evolution 
of  doctrine,  common  to  all  the  modern  systems. 

Needless  to  say,  a  Series  thus  co-ordinated,  and  precisely  suited 
for  our  own  needs,  was  not  easy  to  construct  out  of  materials 
written  by  Continental  scholars  for  Continental  needs.  The 
Committee  hopes  that  due  allowance  will  be  made  for  the  diflS- 
culties  here  encountered.  But  it  is  convinced  that  the  ideal  of 
a  co-ordinated  Series,  which  should  collate  and  fairly  cover 
the  various  fields  as  a  connected  whole,  is  a  correct  one;  and  the 
endeavor  to  achieve  it  will  sufficiently  explain  the  choice  of  the 
particular  materials  that  have  been  used. 

It  remains  to  acknowledge  the  Committee's  indebtedness  to 
all  those  who  have  made  this  Series  possible. 

To  numerous  scholarly  advisers  in  many  European  universities 
the  Committee  is  indebted  for  valuable  suggestions  towards 
choice  of  the  works  to  be  translated.  Fortified  by  this  advice, 
the  Committee  is  confident  that  the  authors  of  these  volumes 
represent  the  highest  scholarship,  the  latest  research,  and  the 
widest  repute,  among  European  legal  historians.  And  here  the 
Committee  desires  also  to  express  its  indebtedness  to  Elbert  H. 
Gary,  Esq.,  of  New  York  City,  for  his  ample  provision  of 
materials  for  legal  science  in  the  Gary  Library  of  Continental 
Law  (in  Northwestern  University).  In  the  researches  of  prep- 
aration for  this  Series,  those  materials  were  found  indispensable. 

To  the  authors  the  Committee  is  grateful  for  their  willing 
co-operation  in  allowing  this  use  of  their  works.  Without  ex- 
ception, their  consent  has  been  cheerfully  accorded  in  the 
interest  of  legal  science. 

To  the  publishers  the  Committee  expresses  its  appreciation 
for  the  cordial  interest  shown  in  a  class  of  literature  so  impor- 
tant to  the  higher  interests  of  the  profession. 

To  the  translators,  the  Committee  acknowledges  a  particular 
gratitude.  The  accomplishments,  legal  and  linguistic,  needed  for 
a  task  of  this  sort  are  indeed  exacting;  and  suitable  translators 
are  here  no  less  needful  and  no  more  numerous  than  suitable 
authors.    The  Committee,  on  behalf  of  our  profession,  acknowl- 

xii 


CONTINENTAL    LEGAL   HISTORY    SERIES 

edges  to  them  a  special  debt  for  their  cordial  services  on  behalf 
of  legal  science,  and  commends  them  to  the  readers  of  these  vol- 
umes with  the  reminder  that  without  their  labors  this  Series 
would  have  been  a  fruitless  dream. 

So  the  Committee,  satisfied  with  the  privilege  of  having  intro- 
duced these  authors  and  their  translators  to  the  public,  retires 
from  the  scene,  bespeaking  for  the  Series  the  interest  of  lawyers 
and  historians  alike. 

The  Editorial  Committee. 


xni 


HISTORY   OF  FRENCH   PRIVATE  LAW 


CONTENTS 

PAGB 

Editorial  Committee  and  List  of  Translators v 

General  Introduction  to  the  Continental  Legal  History 

Series ix 

Editorial  Prefatory  Note  by  John  H.  Wigmore xxvii 

Introduction  by  William  Searle  Holdsworth xxxiii 

Translator's  Remarks xliii 

General  Reference  List  of  Treatises  Cited xlv 

Table  of  Abbreviations  most  frequently  used xlvii 

INTRODUCTION  TO  PRIVATE  LAW 

ORIGIN  OF  THE  FAMILY,  OF  OWNERSHIP,  AND  OF 
THE  STATE 

Topic  1.    Origin  of  the  Family,  §§  1-32 1-29 

§  1.  In  General.  §  2.  Theories  of  the  Evolutionists.  §  3.  First 
Stage.  Promiscuity  or  States  bordering  upon  it.  §  4.  The  Conse- 
quences of  Promiscuity.  §  5.  Second  Stage.  Matriarchate.  — 
Evolution  towards  the  Maternal  Family.  §  6.  The  Prohibition  of 
Incest.  §  7.  Marriage  by  Groups.  §  8.  Polyandry.  §  9.  Among 
the  Reddies.  §  10.  Exogamy.  §  11.  Organization  of  the  Maternal 
Family.  Relationship  through  the  Same  Mother.  §  12.  Third 
Stage.  Patriarchate.  §  13.  Formation  of  Marriage.  —  (I)  Abduction. 
§  14.  The  Same.  —  (II)  Purchase.  §  15.  Marriage  by  Servitude. 
§  le.  Effects  of  Marriage.  Status  of  the  Wife.  §  17.  The  Position 
of  Children.  §  18.  Levirate.  §  19.  The  Recognition  of  Paternity. 
§  20.  Adultery.  §  21.  Agnatic  Relationship.  §  22.  Systems  of 
Succession.  §  23.  Ancestor  Worship.  §  24.  Family  Communities. 
§  25.  Dissolution  of  Family  Communities.  Evolution  towards  the 
Simple  Family.  §  26.  Polygamy.  §  27.  Evolution  towards  Mono- 
gamy. §  28.  Forms  of  Transition.  §  29.  Monogamy.  §  30.  Evolu- 
tion towards  the  Independence  of  Children.  §§  31,  32.  Evolution 
towards  the  Emancipation  of  the  Woman. 

Topic  2.    Origin  of  Ownership,  §§  33-61 30-54 

§  33.  Ownership  of  Movables  and  Ownership  of  Land. 

A.  collective  ownership 

§  34.  Collective  Ownership  of  the  Clan  or  the  Tribe.  §  35.  The 
Ownership  of  Land  among  the  Alemanni.  §  36.  Frankish  Period. 
§§  37,  38.  The  Germanic  March.  §  39.  The  Marches  Disappear. 
§  40.  Anglo-American  Townships.  §41.  The  "Mir."  §42.  The  Vil- 
lage Community  in  India.  §  43.  The  "Dessa"  or  Commune  of  Java. 
§  44.  The  Abandonment  of  Collective  Ownership. 

xvii 


CONTENTS 

B.  KEMAINS   OF   COLLECTIVE   OWNERSHIP 

PAGB 

§  45.  (I)  The  Manorial  System.  §§  46,  47.  (II)  The  Rights  of  Pre- 
emption and  Repurchase.  §48.  (Ill)  The  "Flurzwang."  §49.  (IV) 
The  Rights  of  Commons.  §  50.  "Allmends."  §  51.  Feudahsm  and 
Rights  of  Commons.  §  52.  Theory  of  the  Feudists.  §  53.  Theory 
of  the  Romanists.  §  54.  The  Revolutionary  Law;  §  55.  Partition  of 
Rights  of  Commons. 

C.   FAMILY  JOINT   OWNERSHIP 

§  56.  Family  Joint  Ownership. 

D.    REMAINS   OF   FAMILY   JOINT   OWNERSHIP 

§  57.  (I)  Rules  of  Successions.  §  58.  (II)  The  Classification  of 
Immovable  Property  into  Personal  Belongings  and  Acquests.  §  59. 
Family  Institutions  in  Our  Period.  §  60.  (Ill)  Rules  of  Feudal 
Ownership.  §  61.  (IV)  The  Process  of  Evolution  towards  Indi- 
vidual Ownership. 

Topic  3.    Origin  of  the  State,  §§  62-91 55-79 

I.   general  remarks 

§  62.  The  Society  and  the  State.  §  63.  Organic  Theory  of  the 
State.  §  64.  Localization  of  Functions.  §  65.  Changes  in  Structure. 
§  66.  Interdependence  of  the  Parts.  §  67.  Organs  and  Apparatus. 
§  68.  Political  Forms.  §  69.  Personal  Government.  §  70.  Social  Dis- 
tinctions. Classes  and  Castes.  §  71.  How  are  Societies  Formed, 
Developed,  and  Reproduced,  and  how  do  they  Die?  §  72.  The 
Factors  of  Social  Evolution.     §  73.  Social  Laws. 

II.   elementary  and  composite  societies 

§  74.  Primitive  Societies.  §  75.  The  Clan  or  the  "Gens."  §  76.  The 
Maternal  "Gens"  among  the  Iroquois.  §  77.  The  Celtic  Clan.  §78. 
The  Roman  "Gens."  §79.  The  "Clientele."  §80.  The  Germanic 
"Sippe."  §  81 .  The  Germanic  Following.  §  82.  The  Tribe.  §  83.  The 
Gallic  Towns  and  the  Germanic  Towns.  Political  Divisions.  §  84. 
Classes  of  Population.  §  85.  The  Political  Function.  §  86.  The 
Political  Organs.  §  87.  The  Popular  Assembly.  §  88.  Senate.  §  89. 
Kings  or  Chiefs.  §  90.  Composite  Societies.  §  91.  The  Ancient  Town 
and  its  Revolutions. 


HISTORY  OF  PRIVATE   LAW 
§  92.  General  Evolution      80 

CHAPTER  ONE 

THE   FAMILY 

§  93.  General    Ideas.     §  94.  Relationship.     §  95.  The  House,   or 
"mesnie" 82-86 

Topic  1.    Marriage.    Legislation   and  Jurisdiction,  §§   96-100    87-92 
§  96.  Marriage  after  the  Invasions.     §  97.  The  Church  and  the 
Religious    Marriage.     §  98.  Civil    Marriage.     §  99.  Legislation    and 
Jurisprudence  of  the  Monarchic  Period.     §  100.  The  Revolutionary 
Law. 

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CONTENTS 

PAGE 

Topic  2.    Betrothals,  §§  101-105 93-100 

§  101.  Barbarian  Period.  §  102.  The  Same.  Betrothal  Essential. 
§  103.  Consent  replaces  Betrothal.  The  Canon  Law.  §§  104,  105. 
Betrothal  Restored. 

Topic  3.     Celebration  of  Marriage,  §§  106-110 101-110 

§  106.  Canon  Law  Previous  to  the  Council  of  Trent.  §  107.  Coun- 
cil of  Trent.  §  108.  Civil  Legislation.  §  109.  Marriage  of  Protes- 
tants.    §  110.  Revolutionary  Law. 

Topic  4.  Concerning  Impediments  to  Marriage,  §§  111-122  .  111-135 
§  111.  The  Basic  Conditions.  §  112.  Classification  of  Impedi- 
ments. §  113.  Invalidating  Impediments.  —  (I)  Lack  or  Defects  of 
Consent.  §  114.  The  Same.  — (II)  The  Consent  of  the  Relatives 
to  the  Marriage.  §  115.  The  Same.  — (Ill)  Incapacity.  §  116.  The 
Same — (IV)  Impediments  resulting  from  Relationship.  §  117.  The 
Same. —  (V)  Incompatibility  of  Marriage  with  Certain  other  Condi- 
tions. §  118.  The  Same. —  (VI)  Prohibitive  Impediments.  §119. 
Preventing  a  Marriage.  §  120.  Dispensations.  §  121.  Nullity  of 
Marriage.    §  122.  Rehabilitation  and  Repudiated  Marriage. 

Topic  5.    Effects  of  Marriage,  §§  123-126 136-140 

§  123.  The  Legal  Consequences.  §  124.  Adultery.  §§  125,  126.  The 
Same:  Penalties. 

Topic  6.    Dissolution  of  Marriage,  §§  127-135 141-151 

§  127.  The  Death  of  one  of  the  Spouses.  §  128.  Divorce.  The 
Lower  Empire.  §  129.  The  Germanic  Law.  §  130.  Canon  Law. 
§  131.  Judicial  Separation.  §  132.  The  Jurisprudence  of  the  Parlia- 
ments. §  133.  Reaction  against  Indissolubility.  The  Reformation. 
§  134.  The  Philosophers  of  the  Eighteenth  Century.  §  135.  Rev- 
olutionary Laws. 

Topic  7.    Second  Marriages,  §§  136-140 152-157 

§  1.36.  Barbarian  Law.  §137.  The  "Reipus."  §  138.  The  "Acha- 
sius."  §  139.  Canon  Law.  §  140.  Protection  of  the  Children  of  the 
First  Marriage. 

Topic  8.    Union  Other  than  Marriage,  §§  141-143 158-162 

§  141.  In  General.  §  142.  Concubinage.  §  143.  Morganatic  Mar- 
riages. 

Topic  9.    Power  of  the  Husband,  §§  144-153 163-177 

§§  144,  145.  Foundations  of  the  Power  of  the  Husband.  §  146. 
Right  of  Correction.  §  147.  The  Husband's  Authority.  §  148. 
The  Incapacity  of  the  Wife  is  General.  §  149.  How  is  the  Authori- 
zation Given  ?  §  150.  Supplementary  Authorization  Given  by  Law. 
§  151.  Effects  of  Authorization.  §  152.  Lack  of  Authorization. — 
Beaumanoir's  System.     §  153.  Rights  of  Third  Parties. 

Topic  10.    The  Paternal  Power,  §§  154-168 178-201 

§  154.  Sources  of  the  Paternal  Power.  §  155.  Origin.  §  156. 
''Mundium"  and  "Patria  Potestas."  §  157.  The  Same.  — (I)  The 
limited  duration  of  the  "  mundium  "  in  contrast  to  the  perpetuity 
of  the  "patria  potestas."  §  158.  The  Same.  —  (II)  The  conception 
of  family  joint  ownership.     §  159.  Transformation  of  the  "Mun- 

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CONTENTS 

PAGE 

dium."  §  160.  Customary  "Mainbournie."  §  161.  Rights  over  the 
Person.  Correction.  §  162.  The  Duties  of  Parents.  §  163.  Rights 
over  Possessions.  §  164.  Capacity  of  the  Child  under  Authority. 
§  165.  Right  of  the  Mother.  §  166.  Emancipation.  §  167.  Eman- 
cipating Majority.     §  168.  Revolutionary  Law. 

Topic  11.     Concerning  Illegitimate  Children,  §§  169-176     .    .  202-216 
§  169.  Germanic  Law.     §  170.  Christian  Ideas.     §  171.  The  Law 
of  the  Monarchic  Period.     §  172.  The  Condition  of  Bastards.     §  173. 
Proof  of  Natural  Filiation.     §  174.  Revolutionary  Law.     §  175.  Le- 
gitimation.    §  176.  Legitimation  by  Rescript  from  the  Prince. 

Topic  12.    Adoption,  §§  177-181 217-220 

§§  177-179.  Adoption.     §  180.  Fraternization.     §  181.  Affihation 
or  Foster-Brotherhood. 

Topic  13.     Condition  of  Women,  §§  182-188 221-231 

§  182.  In  the  Old  Germanic  Law.  §  183.  In  Public  Law.  §  184. 
Changes  in  the  Station  of  Women.  §  185.  German  and  Italian  Law. 
§  186.  In  France.     §§  187,   188.  Velleianum  Decree  of  the  Senate. 

Topic  14.    Guardianship  and  Custody,  §§  189-214 232-266 

§  189.  Guardianship  of  Minors  during  the  Barbarian  Period. 
§  190.  Suspension  of  Actions  by  or  against  the  Minor.  §  191.  In- 
tervention of  the  State.  §  192.  Feudal  Law.  §  193.  Seigniorial 
Protection.  §  194.  The  Lease  of  Fiefs.  §  195.  Rights  of  the  Guard- 
ian. §  196.  Obligations.  §  197.  Nobleman's  Custody.  §  198.  Plebeian 
Custody.  §  199.  Citizen's  Custody.  §  200.  Modern  Guardianship. 
§  201.  In  France  every  Guardianship  is  Appointive.  §  202.  Powers 
of  the  Guardian.  §  203.  Guarantees  in  the  Interest  of  the  Minor. 
§  204.  The  Revolutionary  Law.  §  205.  The  Question  of  the  Capacity 
of  the  Minor.  §  206.  The  Barbarian  Majority.  §§  207,  208.  Under 
the  Feudal  System.  §§  209,  210.  Emancipation  of  Minors  under 
Guardianship.  §§  211-214.  Persons  who  have  attained  Majority 
and  are  under  a  Disability. 


CHAPTER  TWO 
OWNERSHIP  AND   REAL  RIGHTS 

Topic  1.    Divisions  of  Property,  §§  215-236      267-287 

§  215.  General  Remarks.  §  216.  (I)  Movables  and  Immovables. 
§  217.  Basis  of  this  Division  and  its  Extension.  §  218.  Movables  and 
Chattels.  §  219.  Inheritances  or  Immovables.  §  220.  (II)  Per- 
sonal Belongings  and  Acquests.  §§  221,  222.  Alienation  "inter 
vivos."  §  223.  Inheritance  of  Personal  Belongings.  §§  224,  225. 
Jointly  held  Personal  Belongings.  §  226.  Proofs.  §  227.  (Ill) 
Things  which  do  not  Come  Within  Trade.  Royal  Prerogatives. 
§  228.  Prerogative  over  the  Ground.  —  Possessions  without  an 
owner.  §  229.  Expropriation.  §  230.  Confiscation.  §  231.  Prop- 
erty of  the  Enemy.  §  232.  Prerogative  of  Mines.  §  233.  Treasure. 
§  234.  Estrays,  Waifs.  §  235.  The  Prerogative  of  Forests.  §236. 
Prerogative  over  Waters. 

Topic  2.     System  of  Ownership  of  Movables,  §§  237-247  .    .    .  288-304 

§  237.  "Mobiha  Non  Habent  Sequelam."  §  238.  The  Barbarian 
Period.     §  239.  (I)  Voluntary  Dispossession.     §§  240-242.  (II)  Loss 

XX 


CONTENTS 

PAGE 

or  Theft.  §  243.  Feudal  Period.  —  (I)  Voluntary  Relinquishment  of 
possession.  §  244.  The  Same.  —  (II)  Loss  or  Theft.  §  245.  Market 
Overt.  §  246.  Reform  in  the  Roman  Direction  during  the  Fourteenth 
and  Fifteenth  Centuries.  §  247.  Judicial  Law  of  the  Eighteenth 
Century. 

Topic  3.    Ownership  of  Land,  §§  248-258 305-314 

§  248.  Real  and  Personal  Rights.  §  249.  Real  and  Personal  Actions. 
§  250.  "Jus  ad  Rem."  §  25L  Ownership  of  Land.  §  252.  Restric- 
tions on  the  Right  of  Ownership.  §§  253,  254.  Freedom  to  Enclose. 
§  255.  Limited  Ownership.  §  256.  Joint  Ownership  with  Joint  Pos- 
session.    §  257.  The  Community.     §  258.  Incorporeal  Property. 

Topic  4.    Possession,  §§  259-279 315-349 

§  259.  General  Remarks.  §  260.  Canon  Law.  §§  261,  262.  Origin 
of  the  "Remedium  Spolii."  §  263.  Prankish  Period.  §  264.  Feudal 
Period.  §  265.  The  Seisin.  §  266.  The  Seisin  is  Acquired.  §  267. 
Seisin  under  Law.  §  268.  Yearly  Possession.  §  269.  Possessory 
Actions.  Anglo-Norman  Law.  §  270.  Assize  of  "Mort  D' Ancestor" 
and  Writs  of  Entry.  §  271.  The  raising  of  the  Hue  and  Cry  ("Haro"). 
§  272.  Possessory  Actions  in  the  French  Customary  Law.  §  273. 
Beaumanoir.  §  274.  Fourteenth  and  Fifteenth  Centuries.  §  275. 
The  Complaint  in  Cases  of  Seisin  and  Trespass.  §§  276,  277.  The 
Procedure  of  the  Complaint.  §  278.  Action  of  Simple  Seisin.  §  279. 
The  Declaration  of  Recent  Work. 

Topic  5.    Acquisition  of  the  Ownership  of  Immovables.   Occupa- 
tion AND  Prescription,  §§  280-290 350-366 

§  280.  The  Principal  Methods  of  Acquisition  "Inter  Vivos." 
§  281.  Occupation.  §  282.  Prescription.  —  Short  and  Long  Pre- 
scriptions. §  283.  The  Year  and  a  Day.  §  284.  "Rechte  Gewere." 
§  285.  The  Tenure  of  a  Year  and  a  Day.  §  286.  The  Tenement  of 
Five  Years.  §  287.  Good  Faith.  §  288.  Immemorial  Possession. 
§  289.  The  Roman  Prescriptions.  Prescriptions  of  Ten  to  Twenty 
Years  and  Prescriptions  of  Thirty  Years.  §  290.  In  the  Sixteenth 
Century. 

Topic  6.    Acquisition   of   the   Ownership   of    Immovables  —  De- 
livery, §§  291-323 367-410 

§  291.  The  Transfer  of  Ownership  by  Agreement.  §  292.  Prank- 
ish Period.  §  293.  Real  Investiture.  §§  294,  295.  Symbolical  De- 
livery. §  296.  Putting  in  Possession  in  Fact.  §  297.  Juridical 
Effects  of  these  Acts.  §  298.  Delivery  "Per  Cartam."  §299. 
Feudal  Period.  §§  300,  301.  Fiefs  and  Copyholds.  §  302.  Freehold 
Tenure.  §  303.  Monarchic  Period.  §  304.  (I)  Customs  of  Public 
Nams.  §§  305,  306.  The  "Acts  of  Law."  §  307.  The  Effects  of 
Public  Nams.  §  308.  The  Pubhc  Nams  Customs.  §  309.  (II)  Pub- 
lic Investiture  by  Means  of  Proclamation.  §  310.  (Ill)  Investiture 
and  Giving  of  Public  Notice  at  Metz.  §  311.  (IV)  German  Law. 
§  312.  (V)  The  Common  Law  of  the  French  Customs.  System  of 
Pretended  Delivery.  §  313.  The  Same. — Origin.  §  314.  Formation 
of  the  French  Practice.  §  315.  Conditions  and  Effects  of  Pretended 
Delivery.  §  316.  Estimate  of  the  System  of  Pretended  Delivery. 
§  317.  (VI)  English  Law.  §  318.  (I)  Freehold.  —  (A)  Feoffment  with 
Livery  of  Seizin.  §  319.  The  Same.  —  (B)  Lease  and  Release.  §  320. 
The  Same.  —  (C)  Fine.  §  321.  The  Same.  —  (D)  The  Common  Re- 
covery. §  322.  (II)  Copyholds.     §  323.  (Ill)  Formation  of  Uses. 

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CONTENTS 

PAGE 

Topic  7.    Rights  in  Land  and  Encumbrances  upon  Landed  Prop- 
erty, §§  324-333 411-425 

§  324.  Multiplicity  of  Rights  in  Land;  Their  Relations  to  Feudal- 
ism and  Serfdom.  §  325.  Leases  for  a  Long  and  a  Short  Term.  §  326. 
Free  Urban  Tenure.  §  327.  Rents  and  Charges,  or  Burdens  on  Real 
Property.  §  328.  Rights  of  Profits.  §  329.  Usufruct.  §  330.  Right 
of  the  Beneficiary  over  an  Ecclesiastical  Benefice.  §  331.  Real  Servi- 
tudes. §  332.  The  Same  —  (I)  Natural  Servitudes,  §  333.  The  Same 
■^  (II)  Servitudes  established  by  the  Act  of  Man. 

Topic  8.     Restrictions  upon  the   Freedom    of   Alienating   Inter 

Vivos.  —  Repurchasing,  §§  334-348 426-449 

§  334.  The  Freedom  of  Grant  "Inter  Vivos."  §  335.  Repurchase. 
§  336.  Disadvantages  of  Repurchases  and  Their  Suppression.  §  337. 
The  Repurchases  of  the  Civil  Code  and  Actions  of  Subrogation.  §  338. 
The  Repurchasing  by  a  Person  of  the  Same  Lineage.  §  339.  The 
Consent  of  the  Relatives.  §  340.  Offer  to  the  Next  of  Kin.  §  341. 
Repurchase.  §  342.  Conditions  of  the  Repurchase.  —  (I)  Property 
Subject  to  the  Repurchase.  §  343.  The  Same.  —  (II)  Acts  which 
give  rise  to  the  Repurchase.  §  344.  The  Same.  —  (III)  Who  has  the 
right  to  the  Repurchase?  §  345.  The  Same.  (IV)  Against  whom 
was  the  Repurchase  allowed?  §  346.  The  Same.  — (V)  The  Re- 
purchase of  "half  funds."  §  347.  Procedure.  §  348.  Effects  of  the 
Repurchase. 


CHAPTER  THREE 
OBLIGATIONS 

Topic  1.    General  Ideas,  §§  349-351      450-453 

§  349.  Number  and  Importance  of  Contractual  Obligations  in 
Modern  Law.  §  350.  Characteristics  of  the  Obligation  in  the  Old 
Law.     §  351.  The  Obligation  in  Modern  Law. 

Topic  2.    Offenses,  §§  352-361 454-470 

§  352.  Public  and  Private  Offenses.  §  353.  Offenses  committed 
by  One  Family  against  Another.  §  354.  Characteristics  of  the 
Offense.  §  355.  Criminal  Intent.  §  356.  Responsibility  for  the  Act 
of  Another.  Damage  caused  by  Animals  or  Inanimate  Things. 
§  357.  Pecuniary  Composition.  §  358.  Family  Solidarity.  §  359. 
Damages.  §  360.  Putting  Outside  of  the  Law,  and  its  Varieties. 
§  361.  Concerning  Special  Kinds  of  Offenses. 

Topic  3.    Contracts.    Frankish  Period,  §§  362-370 471-490 

§  362.  Mere  Consent  does  not  bind.  §  363.  Real  Contracts. 
§  364.  Formal  Contract.  "Fides  Facta,"  "Arramitio,"  "Wadiatio." 
§  365.  Forms  and  Cases  in  which  the  "Fides  Facta"  was  applied. 
§366.  The  "Festuca."  §  367.  The  "Wadium."  §  368.  Security. 
§  369.  Consequences  of  Formalism.  §  370.  Formation  of  Contracts 
by  Means  of  Writings. 

Topic  4.    Contracts.    Feudal  Period,  §§  371-378 491-512 

§  371.  Persistence  of  the  Law  of  the  Frankish  Period.  §  372. 
Contracts  in  Re.  §  373.  Earnest  Money.  §  374.  Faith-Pledging. 
Blow  with  the  Palm  of  the  Hand.     §  375.  The  Promissory  Oath. 

xxii 


CONTENTS 

PAGE 

§376.  The  Rule  "Solus  Consensus  Obligat."  §  377.  Contracts,  in 
English  Law.  §  378.  Obligations  by  Means  of  Writing  and  Written 
Proof. 

Topic  5.    Nullity  of  Contracts,  §§  379-384 513-518 

§  379.  The  Nullity  of  a  Contract.  §  380.  Origin  of  the  Theory  of 
Nullity.  §  381.  Nullity  and  Rescission.  §  382.  Absolut-e  Nullity. 
§  383.  Relative  Nullity.     §  384.  Rescission. 

Topic  6.    Some  Particular  Kinds  of  Contracts,  §§  385-406     .  519-557 

§  385.  Loan  with  Interest.  —  (A)  Why  was  it  forbidden?  §  386. 
The  Same.  —  (B)  Sanction  of  this  Prohibition.  §  387.  The  Same.  — 
(C)  Reaction.  §  388.  Establishment  of  Rents.  —  (A)  Origin.  §  389. 
The  Same.  —  (B)  Rent-charge.  §  390.  The  Same.  —  (C)  Constituted 
rents.  §  391.  The  Same.  —  (D)  Life  rents.  §  392.  Assignment  of 
Claims.  —  (A)  Early  inahenability.  §  393.  The  Same.  —  (B)  Indirect 
means.  §  394.  The  Same.  —  (C)  Assignment.  Transfer.  §  395.  The 
Same.  —  (D)  Payment  with  subrogation.  §  396.  The  Same.  —  (E) 
Bills  to  bearer  and  to  order.  §  397.  The  Same.  —  (F)  Bills  of 
Exchange.  §  398.  Agency  and  Representation.  —  (A)  General  Re- 
marks.    §399.  The   Same.  — (B)  "Salmannen."      §  400.  The  Same. 

—  (C)  Attorneys.     §  401.  Sale.  — (A)  Formation.    §  402.  The  Same. 

—  (B)  Effects.  §  403.  The  Same.  — (C)  Warranty  because  of 
Eviction.  §  404.  The  Same.  —  (D)  Rescission  of  the  Sale.  §  405. 
Civil  and  Commercial  Partnerships.  —  (A)  Companies.  §  406.  The 
Same.  —  (B)  Commercial  Partnerships. 

Topic  7.    Means  of   Enforcement  on  the   Person  and  Personal 

Surety,  §§  407-416 558-581 

§  407.  Voluntary  Satisfaction.  §  408.  Compulsory  Satisfaction. 
§  409.  The  Same:  Execution  upon  the  Person  —  (A)  Self-help.  §  410. 
The  Same.  —  (B)  Intervention  of  the  Law.  §  411.  Imprisonment. 
§  412.  The  Surrender  of  Possessions.  §  413.  Suretyship.  §  414. 
Hostage.  §  415.  The  "Fidejussio"  or  "Plcgerie."  §  416.  Modern 
Suretyship. 

Topic  8.     Execution     upon    Possessions    and    Real    Securities, 

§§  417-444  582-620 

§  417.  Movables  are  the  Seat  of  Debts.  §  418.  Pledging  of  Mov- 
ables based  upon  an  Agreement.  —  (A)  Early  Conception.  §  419. 
The  Same.  —  (B)  The  Pledge  passes  to  the  Condition  of  an  Acces- 
sory Security.  §  420.  Private  Distraint  ("Pigneratio")  upon  Mova- 
bles. §  421.  Pledge  by  Legal  Process.  —  (A)  Barbarian  Laws.  §  422. 
The  Same.  —  (B)  Customany  Law.  §  42.3.  Execution  upon  Immova- 
bles. Origin  of  Distraint  upon  Immovables.  §  424.  Land  Distraint 
and  its  Procedure.  §  425.  The  Same.  —  (A)  Documentary  Right. 
§  426.  The  Same.  —  (B)  The   Distraint  Proper.     §  427.  The  Same. 

—  (C)  Public  Announcements  and  Award.  §  428.  The  Same.  —  (D) 
Preferences.  §  429.  The  Same:  Later  Law.  §  430.  Forms  of  Realty- 
Mortgage.  §  431.  The  Same:  (I)  Sale  with  Redemption.  §  432. 
TheSame:  (II)  Land-Gage.  §433.  The  Same:  (III)  "Bond."  §434. 
The  Same.  — (A)  The  General  Bond.  §  435.  The  Same.  — (B)  The 
Special  Bond.  §  436.  The  Same.  —  (C)  Comparison  of  the  General 
Bond  and  the  Special  Bond.  §  437.  The  Same:  Hypothec-Mort- 
gage. (1)  Countries  of  Public  Nam.  §  438.  The  Same:  (2)  The  so- 
called  "Customary  Common  Law."  Mortgage  is  Creatable  only  by 
Notarial  Deed.  §  439.  The  Same:  Every  Notarial  Deed  Implies  a 
General   Mortgage.     §  440.  The   Same:    Judgment   Lien    (Judicial 

xxiii 


CONTENTS 

Hypothec).  Every  Judgment  Implies  a  General  Mortgage-Lien. 
§  441.  Implied  Liens  (Hypothecs).  §  442.  Consequences  of  the 
Mortgage.     §  443.  "Clearance."     §  444.  Revolutionary  Law. 


CHAPTER  FOUR 
INTESTATE   SUCCESSION   AND    GRATUITOUS   CONVEYANCES 

Topic  L     General  Ideas,  §§  445-450 621-625 

§  445.  Prefei'ence  for  Intestate  Succession.  §  446.  Various  Kinds 
of  Succession.  §  447.  Plurality  of  Successions.  §  448.  Countries  of 
Written  Law.  §  449.  Reservation  and  Legal  Share.  §  450.  Gratui- 
tous Conveyances. 

Topic  2.     Intestate  Succession.     Various  Kinds  of  Heirs,  §§  451- 

467 626-657 

§  451.  The  House  and  the  Lineage.  §  452.  (I)  The  House.  §  453. 
(A)  Privilege  of  the  Male  Line.  §  454.  (B)  The  Right  of  Primogeni- 
ture. §  455.  Lack  of  Representation.  §  456.  (II)  Lineage  (Ascend- 
ants and  Collaterals).  §  457.  Succession  to  Personal  Belongings. 
§  458.  Ascendants.  §  459.  Collaterals.  §  460.  The  Same.  —  (A) 
Nearest  in  Degree.  §  461.  The  Same.  —  (B)  Privilege  of  the  Double 
Tie.      §  462.  The   Same.  —  (C)    Representation.      §  463.  The  Same. 

—  (D)  Devolution.  §  464.  The  Surviving  Spouse.  —  (A)  Countries  of 
Written  Law.  §  465.  The  Same.  —  (B)  Countries  of  Customs.  §  466. 
Irregular  Successions.     §  467.  The  Revolutionary  Law. 

Topic     3.      Acquisition    of     Heirship     and     its     Consequences, 

§§468^85 658-683 

§  468.  The  Vesting  of  the  Succe.ssion.  §  469.  Incapacity  to  Suc- 
ceed. §  470.  Disinheritance.  §  471.  Disqualification.  §  472.  The 
Role  of  the  Heir.  §  473.  Acquirement  of  a  Title  by  Inheritance. 
§  474.  Hereditary  Seisin.  §  475.  Acceptance  and  Rejection.  §  476. 
The  Same.  —  (A)  Acceptance  pure  and  simple.  §  477.  The  Same.  — 
(B)  The  renunciation.  §  478.  The  Same.  —  (C)  Time  to  make  an 
inventory  and  deliberate.  §  479.  The  Same.  —  (D)  The  privilege  of 
the  inventory.  §  480.  Partition  between  Co-heirs.  §  481.  Forms  of 
Partition.  §  482.  Effects  of  Partition.  §  483.  Refunding.  §  484. 
Payment  of  Debts.     §  485.  Separation  of  Assets. 

Topic  4.     Testamentary  Provisions,  §§  486-498 684-702 

§  486.  Neither  Will  nor  Gifts  "causa  mortis."  §  487.  "Thinx"  and 
Ceremony  of  Appointing  an  Heir.  —  (A)  Adoption.    §  488.  The  Same. 

—  (B)  Affatomie.  §  489.  Covenants  Pertaining  to  Succession.  §  490. 
Gifts  "Pro  Amma"and  Share  of  the  Dead.  §  491.  Testamentary 
Executors.  §  492.  The  Will.  §  493.  The  Same.  —  (I)  Jurisdiction. 
§  494.  The  Same.  —  (II)  Capacity  to  make  a  will  or  to  receive  by 
will.  §  495.  The  Same.  —  (III)  The  appointment  of  an  heir.  §  496. 
The  Same.  —  (IV)  Different  forms  of  wills.  (A)  the  Canon  will. 
§497.  The   Same.  —  (B)  Modern  state  of  law.     §  498.  The  Same. 

—  (V)  Revocation  of  wills. 

Topic  5.    Gifts  "inter  vivos"  and  "causa  mortis,"  §§  499-507  .     703-715 
§  499.  The  Formula  of  Loysel,  662.     §  500.  Gifts  during  the  Bar- 
barian Period.     §  501.  To  give  and  to  withhold  is  not  Valid.     §  502. 
Formalities.     §  503.  Incapacity  to  give  and  to  receive.     §  504.  Gifts 

xxiv 


CONTENTS 

PAGE 

between  Spouses.    §  505.  Mutual  Gifts.    §  506.  Revocation  of  Gifts. 
§  507.  The  Gift  "causa  mortis." 

Topic  6.     Covenants  Relating  to  Inheritance,  §§  508-513     .     716-733 
§  508.  Covenants  upon  Future  Succession.     §  509.  Renunciations 
of  a  Future  Inheritance.     §  510.  Appointment  by  Contract.     §  511. 
The  Abdication   of   Possessions.      §  512.  Partition  by  Ascendants. 
§  513.  Substitutions  in  Trust  (Entails). 

Topic  7.     Reservation  and  Legal  Share,  §§  514-518     ....     734-748 
§  514.  Barbarian  Legislation.    §  515.  Feudal  and  Customary  Law. 
§  516.  The  Legal  Share  ("  legitime  ").    §  517.  By  what  Right  did  one 
collect  the  Legal  Share?    §  518.  The  Revolution  and  the  Civil  Code. 


CHAPTER  FIVE 

SYSTEM  OF  PROPERTY   BETWEEN  SPOUSES 

Topic  1.     Frankish  Period,  §§  519-528 749-764 

§  519.  System  of  the  Husband's  "  Mundium."  §  520.  "Pretium 
Nuptiale"  or  Germanic  Marriage  Portion.  §  521.  The  Gift  of  the 
Morning  or  "Morgengabe."  §  522.  Roman  Marriage  Portion, 
"Faderfium,"  "Maritagium."  §  523.  Rights  of  the  Husband  during 
the  Marriage.     §  524.  Dissolution  of  Marriage.     §  525.  The  Same.  — 

(A)  The  "Morgengabe."  §  526.  The  Same.  — (B)  The  "Pretium." 
§  527.  The  Same.  —  (C)  The  disposal  of  the  share  brought  by  the 
wife.     §  528.  Rights  of  the  Wife  over  Property  acquired  jointly. 

Topic  2.    Dower  and  Other  Rights  by  Survivorship,  §§  529-541  .    765-782 
§  529.  Dower.     General   Ideas.      §  530.  Conditions  Requisite  for 
the  Existence  of  Dower. —  (A)  Kinds  of  dower.     §  531.  The  Same. — 

(B)  The  amount  of  legal  dower.  §  532.  The  Same.  —  (C)  The  seat  of 
the  Customary  dower.  §  533.  The  Same.  —  (D)  The  wife  obtains  her 
dower,  upon  going  to  bed.  §  534.  The  Same.  —  (E)  The  forfeiture  of 
dower.  §  535.  Rights  of  the  Wife  over  the  Dower.  —  (A)  During  the 
marriage.  §  536.  The  Same.  —  (B)  At  the  death  of  the  husband. 
§  537.  The  Dower  of  Children.  §  538.  The  Increase  of  the  Marriage 
Portion.  §  539.  Rings  and  Jewels.  §  540.  Counter-Increase.  §  541. 
Mourning  and  Residence. 

Topic  3.     Systems  without  Community,  §§  542-551      783-811 

§  542.  In  General.  §  543.  English  System.  —  (A)  The  Common 
Law.  §  544.  The  Same.  —  (B)  Courts  of  Equity.  §  545.  The  Same. 
—  (C)  Act  of  the  10th  of  August,  1882.  §  546.  Norman  System.— 
(A)  Incapacity  of  the  Married  Woman.  §  547.  The  Same.  —  (B) 
The  Administration  of  the  Immovables.  §  548.  The  Same.  —  (C)  In- 
alienability of  the  Marriage  Portion.  §  549.  German  System  of 
Unity  of  Possessions.  §  550.  The  Roman  System  of  Marriage  Por- 
tion.   §  551.  The  Partnership  of  Acquests. 

Topic  4.     Systems  of  Community,  §§  552-572 812-861 

§  552.  Origin  of  the  Community  of  Possessions  between  Spouses. 
Distinctive  Characteristics  of  this  System.  §  553.  Date  of  the 
Community.  §  554.  Causes  which  produced  the  Community  and 
directed  its  Evolution.     §  555.  Various  Forms  of  the  Community.  — 

XXV 


CONTENTS 

PAGE 

(A)  General  Community.  §  556.  The  Same.  —  (B)  Partial  Com- 
munities. §  557.  Freedom  of  Matrimonial  Agreements.  §  558.  What 
the    Community   Consists  of.  —  (A)    Assets.     §  559.    The    Same.  — 

(B)  The  Liabilities.  §  560.  Administration  of  the  Community. 
§  561.  Part  Played  by  the  Wife.  §  562.  The  Wife's  Personal  Be- 
longings. §  563.  The  Dissolution  of  the  Community.  §  564.  Con- 
tinuation after  Death.  §  565.  The  Separate  Estate  (Judicial).  §  566. 
Right  of  the  Wife  to  Choose  between  Acceptance  and  Renunciation, 
§  567.  Transactions  Previous  to  Partition;  Reinvestment  and  Rec- 
ompenses. §  568.  The  Same.  —  (A)  Recompense  due  from  the  Com- 
munity. §  569.  The  Same.  —  (B)  Recompenses  due  from  the  spouses 
to  the  Community.  §570.  Partition.  —  (A)  Assets.  §  571.  The 
Same.  —  (B)  Liabihties.     §  572.  The  Married  Woman's  Mortgage. 


CHAPTER  SIX 

STATUS  AND   CAPACITY  OF  PERSONS 

Topic  1.     Certificates  of  Civil  Status,  §§  573  -  576 862-866 

§  573.  Early  Methods  of  Proofs.  §  574.  Certificates  of  Religious 
Status.  §  575.  Certificates  of  Civil  Status.  §  576.  Secularization 
of  Certificates  of  Civil  Status. 

Topic  2.     Persons  under  a  Disability,  §§  577-587      867-888 

§  577.  Status  and  Capacity  of  Persons.  §  578.  Foreigners  or 
Ahens.  §  579.  The  Same.  —  (A)  The  Feudal  Law.  §  580.  The  Same. 
—  (B)  Transformation  of  the  seigniorial  right  into  a  domanial  right. 
§  581.  The  Same.  —  (C)  Nationality.  §  582.  The  Same.  —  (D)  Disa- 
bility of  aliens  or  right  of  succession  to  the  estate  of  deceased  aliens. 
§  583.  The  Same.  —  (E)  How  did  the  Crown's  succession  to  the  es- 
tate of  a  deceased  ahen  disappear?  §  584.  Those  Civilly  Dead. 
§  585.  Entering  Religious  Orders.  §  586.  The  Penal  Civil  ^Death. 
§  587.  Lepers  and  Outcasts. 

Topic  3.     Legal  Persons,  §§  588-590 889-905 

§  588.  Political  Bodies.  §  589.  Corporations  (Bodies  and  Com- 
munities, Persons  in  Mortmain).    §  590.  Foundations,  "Piae  Causae." 

INDEX 907 


XXVI 


EDITORIAL  PREFATORY  NOTE 

By  JOHN  H.   VVIGMOREi 

A  NARROW  ridge  of  upland  in  southern  Switzerland  forces 
apart  two  streamlets,  which  afterwards  wander  away  for  a  thou- 
sand miles  and  emerge  as  the  Rhine  and  the  Danube  amidst 
different  races  on  opposite  sides  of  Europe.  But  no  story  of  an 
intellectual  separation,  entrained  by  physical  facts,  is  so  interest- 
ing as  that  which  was  effected  by  the  forty-mile  Channel  between 
France  and  England.  Eight  centuries  ago  it  was  possible  to 
expect  that  there  might  be  a  political  union  and  a  common  growth ; 
the  Franks,  the  Normans,  and  the  Saxons  shared  a  common 
stock  of  Germanic  law;  France  did  not  exist;  Paris  was  not  yet 
a  real  capital;  the  Loire  was  still  a  symbolic  boundary  between 
two  tj-pes  of  civilization  more  different  than  Saxons  and  Franks; 
and  northern  France  was  capable  of  a  congenial  union  with  the 
Norman  kingdom.  Five  centuries  ago  this  had  ceased  forever  to 
be  possible;  the  persistent  barrier  of  the  Channel  had  done  its 
work.  Northern  France  had  knit  rather  with  Southern  France; 
and  French  law  was  never  to  be  the  same  as  English  law. 

Yet  at  the  outset  of  the  intervening  period  the  family  traits 
possessed  in  common  were  striking.  They  attract  us  with  the 
interest  which  we  should  have  for  brothers  of  the  same  family 
who  are  forced  apart  by  circumstances  and  grow  into  totally 
different  careers.  Norman  barons  and  clerks  filled  the  judicial 
benches  in  England.  French  was  the  language  of  the  forum. 
Numerous  surviving  legal  terms — "mortgage,"  "nuisance," 
"attorney,"  "tort,"  "plea,"  "demur,"  and  the  rest  —  show  us 
how  thoroughly  French  lawyers  influenced  English  law.^  In 
England,  the  Norman  conquerors,  few  in  number,  did  not  and 
could  not  wholly  displace  the  content  of  the  institutions  which 
they  found;  but  at  least  they  supplied  form  and  method,  and 
much  more.     On  the  French  side,  the  Normans  never  acquired 

'  Professor  of  Law  in   Northwestern  University,  and  chairman  of  the 

Editorial  Committee  for  this  Series. 

2  "It  would  hardly  be  too  much  to  say  that  at  the  present  day  almost  all 
our  words  that  have  a  definite  legal  import  are  in  a  certain  sense  French 
words."    Pollock  and  Maitland's  "History,"  I,  58. 

xxvii 


EDITORIAL   PREFATORY  NOTE 

legislative  domination;  but  the  legal  ideas  which  they  knew  and 
brought  over  were  shared  in  the  main  features  with  northern 
France.  The  early  records  of  legal  custom  —  such  as  the  "  Eta- 
blissements"  attributed  to  Louis  IX,  Beaumanoir's  "Coutumes  de 
Beauvoisis,"  and  Bouteiller's  "Somme  Rurale"  —  are  still  good 
sources  for  throwing  light  on  English  law.  Houard  made  a  col- 
lection entitled  "Anciennes  lois  des  Francois,  conservees  dans 
les  coutumes  Angloises,"  which  contains  the  text  of  Littleton, 
composed  in  the  1400s. 

Political  union  of  North  and  South  France  led  after  several 
centuries  to  formal  legal  unity,  under  the  Code  of  Napoleon. 
Yet  even  here,  in  spite  of  the  overspreading  influence  of  Roman 
law  and  its  jurists,  the  ancient  influence  of  the  North  persisted; 
and  Napoleon's  Code  has  been  called  a  Germanic  rather  than  a 
Roman  document.  Law  changes  slowly,  and  only  by  organic 
growth,  not  by  instant  decrees  of  a  legislator,  like  erasures  from 
an  inscribed  slate.  Modern  French  law  never  had  a  break  in  its 
growth.  Everything  stimulates  us  to  follow  back  and  compare 
its  history  with  our  own  —  both  originating  from  our  common 
ancestors,  both  administered  once  in  a  common  language,  and 
both  developing  slowly  apart  in  the  hundreds  of  principles  which 
govern  mankind's  common  stock  of  transactions.  It  matters  not 
what  part  of  the  law  we  take,  —  wills,  estates,  torts,  pleading, 
courts,  jury,  criminal  practice,  mortgages,  or  the  rest,  —  our 
profession  can  never  fail  to  be  fascinated  with  watching  the 
fate  of  our  own  familiar  terms  and  ideas,  amidst  unfamiliar  sur- 
roundings, in  their  steady  growth  further  and  further  away 
from  the  common  primal  stages  down  into  their  ahen  modern 
forms. 

For  this  purpose  no  volume  could  be  better  suited  than  that 
of  Professor  Brissaud.  French  scholarship,  to  be  sure,  is  ample  in 
its  array  of  works  marked  by  the  highest  standards  of  modern 
research.  It  is  indeed  to  be  regretted  that  in  this,  as  in  other 
fields,  the  repute  of  German  studies  in  the  past  generation  has 
caused  many  of  us  to  forget  the  at  least  equal  merits  of  French 
scholarship;  not  less  thorough  in  standards  nor  less  broad  in 
scope,  it  is  generally  more  compact  in  method  and  more  clear  in 
style.  In  the  field  of  legal  history  the  names  of  Beaune,  Esmein, 
Caillemer,  Flach,  Fournier,  Fustel,  Glasson,  Huvelin,  Tardif, 
Viollet,  and  others,  are  eminent  in  the  present  generation.  But 
the  work  of  Brissaud  is  peculiarly  suited  for  our  own  profit.    For, 

xxviii 


EDITORIAL    PREFATORY   NOTE 

while  writing  always  a  history  of  French  law,  the  author's  eye  is 
kept  upon  the  English  sources  at  the  common  starting-points. 
Copious  citations  of  them  serve  constantly  to  remind  us  of  the 
earlier  propinquities,  and  to  assist  us  in  our  own  comparisons  of 
the  later  divergences. 

Looking  at  random,  we  find  (for  example)  in  Chapter  II,  in  his 
account  of  the  distinction  between  immovables  and  movables, 
Note  3  expounding  the  English  distinction  between  real  and 
personal  property;  Note  4  telling  us  that  "Pollock  and  Maitland 
rightly  point  out  that  the  formula  'vis  mobilium  possessio' 
has  been  mistakenly  exaggerated";  Note  10  citing  Blackstone; 
Note  11  comparing  "chattels"  and  the  French  "cheptel,"  and 
citing  Glanville  to  elucidate  our  phrase  "goods  and  chattels"; 
Note  18,  citing  Blackstone,  to  show  that  English  "incorporeal 
hereditaments"  are  French  "incorporeal  immovables";  Note  21, 
citing  Littleton,  for  the  analogy  of  "chattels  real."  This  feature 
is  continued  at  every  fruitful  occasion.  And  it  is  unique  among 
treatises  on  general  legal  history,  —  not  alone  French,  but  also 
of  other  authorship.  Its  value  for  the  student  of  Anglo-American 
law  cannot  be  overstated. 

In  breadth  of  learning,  Brissaud  is  typical  of  modern  French 
scholarship,  in  the  catholic  and  cosmopolitan  use  of  every  source 
of  authority  wherever  found.  There  was  a  day  when  a  French 
scholar  would  not  deign  to  cite  a  German  one,  as  there  were  (and 
occasionally  are  still)  German  scholars  who  ignore  French  learn- 
ing. But  that  day  has  passed.  In  Brissaud's  field  especially  is 
this  fortunate.  Early  Northern  French  law  is  a  Germanic  stock; 
and  its  study  requires  a  broad  comparative  survey.  Brissaud 
forages  freely  among  the  Dutch,  German,  Swiss,  Italian,  and 
Spanish  records  to  complete  his  reconstruction  of  the  primitive 
institutions;  and  his  citations  of  foreign  savants  include  Brun- 
ner,  Heusler,  Kohler,  Grimm,  Fertile,  Salvioli,  and  a  varied  list 
of  others.  The  large  canvas  thus  used  by  Brissaud  enables  him 
to  depict  constantly  the  broad  background  of  European  legal 
life,  in  which  France  and  England  are  seen  to  be  the  important 
foreground  but  never  the  whole  of  the  picture.  In  this  respect, 
we  are  reminded  of  IMaitland's  largeness  of  view.  It  may  be 
said  that  no  master-work  of  modern  times,  except  INIaitland's, 
contains  so  emphatically  as  Brissaud's  this  spirit  of  cosmo- 
politanism in  its  treatment  of  the  history  of  a  single  country's 
law. 

xxix 


EDITORIAL   PREFATORY   NOTE 

Another  consequence  of  this  wonderful  breadth  of  research  is 
that  it  enables  him  to  see  and  to  show  us  the  inter-relations  of 
the  indi\'idual  principles.  Everything  is  explained  as  a  growth. 
Nothing  appears  as  a  merely  arbitrary  fact  of  law.  It  is  the 
very  antipodes  of  the  formal  lifeless  treatment  of  the  legal  his- 
torians of  fifty  years  ago.  In  the  philosophic  study  of  causes 
and  conditions,  Brissaud  exhibits  the  best  type  of  the  modern 
legal  historian.  The  origin  and  operation,  for  example,  of  the 
great  distinction  between  hereditary  and  acquired  immovables  is 
explained  by  considering  its  relation  to  the  family  life  of  the 
times;  the  curious  changes  in  the  law  for  a  purchaser's  title  to 
goods  sold  by  a  thief  are  examined  in  the  light  of  feudal  custom, 
Roman  theory,  and  mercantile  progress;  and  so  on  through  all 
the  details  of  principle.  Law  is  expounded,  not  mechanically, 
but  (in  Mr.  Justice  Holmes'  phrase)  as  "a  felt  necessity  of  the 
times." 

In  the  arrangement  of  his  materials,  the  author  has  vindicated, 
we  believe,  the  essential  correctness  of  the  topical  plan  for  this 
purpose.  The  historian  of  a  European  country's  law  must 
choose  between  two  plans:  either  to  divide  it  into  three  or  four 
periods,  and  then  within  each  period  to  treat  the  several  topics 
contemporarily,  resuming  them  all  again  within  each  successive 
period;  or,  to  divide  it  into  topics,  and  to  trace  each  topic 
connectedly  throughout  the  several  periods  from  early  to  modern 
times.  The  great  Brunner  chose  the  former  plan,  for  his  history 
of  Germanic  Law;  Brissaud  chose  the  latter  plan.  Each  plan 
inevitably  sacrifices  something  which  the  other  gains.  But  it  is 
possible  to  weigh  the  net  balance  of  advantages;  and  we  do  not 
hesitate  to  assert  that,  for  the  clear  understanding  of  legal  in- 
stitutions, Brissaud  has  demonstrated  the  superiority  —  at  least, 
in  the  hands  of  a  master  —  of  the  method  of  exposition  selected 
by  him. 

Finally,  the  author's  extraordinary  historical  sense  is  seen  in 
his  preliminary  excursus  upon  primitive  institutions.  No  history 
begins;  it  is  always  a  continuation.  And  he  felt  that  to  plunge 
abruptly  into  the  detailed  story  at  no  matter  what  historical  period 
was  to  lose  a  full  understanding  of  the  growth  of  the  law  from 
earlier  beginnings;  hence  his  brief  but  masterly  account  of  pre- 
historic primitive  institutions,  —  an  account  which  enables  the 
reader  at  once  to  perceive  tendencies  and  directions,  and  to 
enter  into  the  true  historical  spirit. 

XXX 


EDITORIAL   PREFATORY   NOTE 

An  eminent  German  legal  historian,  Professor  Rudolf  Hiibner, 
has  thus  recorded  his  judgment  on  Brissaud's  great  treatise:^ 

"  It  is  a  work  which  amazes  us  with  its  richness  of  material.  It  testi- 
fies to  an  iron-hearted  industry  and  an  enviable  breadth  of  historical 
knowledge.  ...  Its  scope  is  by  no  means  confined  to  strictly  French 
law;  the  mediaeval  Roman  law,  the  Germanic  law,  the  English  law, 
receive  also  consideration;  thus  throwing  sidelights  on  the  develop- 
ment of  the  French  legal  ideas,  from  Italy,  England  and  Germany 
Brissaud  possessed  a  \'irtually  inexhaustible  familiarity  with  this  enor 
mous  mass  of  literature,  —  an  accomplishment  far  surpassing  in  this 
respect  anything  found  in  German  works, on  legal  history." 

And  may  we  not  venture  to  believe  that  the  lamented  Mait- 
land,  had  he  been  spared  to  us,  would  now  have  welcomed  Bris- 
saud's masterpiece,  put  into  English,  as  a  useful  contribution  to 
the  spread  of  that  knowledge  so  earnestly  commended  by  him? 
For  he  says:  ^ 

"One  of  our  hopes  has  been  that  we  might  take  some  part  in  the 
work  of  bringing  the  English  law  of  the  thirteenth  century  into  line 
with  the  French  and  German  law  of  that  age.  .  .  .  We  have  often 
had  before  our  minds  the  question  why  it  is  that  systems  which  in 
the  thirteenth  century  were  so  near  of  kin  had  such  different  fates 
before  them.  .  .  .  Englishmen  should  abandon  their  traditional  be- 
lief that  from  all  time  the  Continental  nations  have  been  ruled  by 
the  'civil  law.'  They  should  learn  .  .  .  how  exceedingly  like  our 
common  law  once  was  to  a  French  coutume.  This  will  give  them  an 
intenser  interest  in  their  own  history.  What  is  more,  in  the  works 
of  French  and  German  medifevalists  they  will  nowadays  find  many  an 
invaluable  hint  for  the  solution  of  specifically  English  problems."  ^ 

Henri  Brissaud  died  on  August  13,  1904,  at  the  age  of  fifty 
years,  just  as  the  second  edition  of  the  first  volume  of  his  great 
W'Ork  was  coming  from  the  press.  The  first  edition  had  appeared 
in  parts  between  1898  and  1900;  volume  I  covered  Public  Law  (and 
will  appear  later  in  this  Series) ;  volume  II  covered  Private  Law. 
The  second  edition  was  published  in  1904-08.  Brissaud  had  been 
professor  of  law  at  Bern  and  at  Montpellier,  and  at  the  time  of 
his  death  occupied  the  chair  of  general  history  of  law  at  Toulouse. 

1  "Zeitschrift  der  Savigny-Stif  tung  fiirRechtsgeschichte, "  1906,  XXVII,  337 
(Germ.  Abth.).  Professor  Hiibner  is  the  author  of  the  "History  of  Germanic 
Private  Law"  in  the  present  Series. 

2  Introduction  to  Sir  F.  Pollock  and  F.  W.  Maitland's  "History  of  English 
Law  before  the  Time  of  Edward  I,"  I,  p.  xxxvi.  It  is  interesting  to  compare 
the  same  lino  of  thought  in  Brissaud's  own  review  of  the  Pollock  and  Mait- 
land  "  History  "  '(Nouv.  Revue  hist,  dc  dr.  fr.  et  4tr.,  XXI,  828). 

xxxi 


EDITORIAL   PREFATORY   NOTE 

His  scientific  work  included  (besides  numerous  articles  and  essays) 
the  translation  of  portions  of  the  monumental  work  of  Mommsen, 
Marquardt,  and  Kriiger,  "Manual  of  Roman  Antiquities,"  and 
a  memoir  on  "Claude  Joly,  a  Liberal  of  the  Seventeenth  century." 
But  his  main  task,  fortunately  achieved  before  his  labors  were  cut 
off,  was  the  present  magnum  opus. 

Needless  to  say,  the  task  of  translating  such  a  work  is  an  exact- 
ing one,  and  calls  for  an  unusual  equipment  of  skill.  The  trans- 
lator, INIr.  Rapelje  Howell,  has  had  an  ideal  preparation  for  this 
work.  A  native  of  New  York  City,  he  continued  his  education 
in  France,  at  the  Lycee  Carnot,  in  Paris,  and  afterwards  sojourned 
frequently  in  that  country.  Entering  Trinity  College,  Cambridge, 
England,  he  received  there  the  B.A.  degree  in  1902.  On  his 
return  to  New  York,  he  spent  some  years  in  business  and  in  jour- 
naUsm,  and  then  entered  the  Law  School  of  Columbia  University, 
from  which  he  received  the  degree  of  LL.B.  in  1909.  Wliile 
there,  he  became  interested  in  the  history  of  Norman  law,  and 
undertook  the  translation  of  the  "Tres  Ancien  Coutume."  The 
Committee's  call  interrupted  that  task;  and  for  more  than  a  year 
past  he  has  devoted  his  time  almost  exclusively  to  the  present 
work.  The  Committee  considers  itself  fortunate  in  having  secured 
one  of  Mr.  Howell's  zeal  and  accomplishments  for  the  execution 
of  an  undertaking  so  laborious,  so  difficult,  and  so  useful  to  legal 
science. 


xxxu 


INTRODUCTION 

By  WILLIAM  SEARLE  HOLDSWORTHi 

This  work  on  the  history  of  French  Private  law  is,  in  the  original, 
a  part  of  a  larger  whole.  The  complete  work  consists  of  three 
parts.  The  first  part  deals  with  the  sources  of  French  law;  the 
second  with  the  history  of  public  law;  and  the  third  with  the  his- 
tory of  private  law.  The  first  two  parts  treat  the  subject  chrono- 
logically. Thus  those  who  have  read  the  whole  book  have,  by  the 
time  that  they  have  reached  the  part  dealing  with  private  law, 
gained  a  clear  idea  of  the  history  both  of  the  literature  and  of  the 
development  of  French  institutions  and  French  law.  The  third 
part  abandons  the  chronological  arrangement,  and  treats  of  the 
development  of  the  leading  doctrines  of  private  law  under  a  few 
comprehensive  headings.  In  our  opinion  this  is  the  only  method 
by  which  a  clear  account  of  the  evolution  of  the  doctrines  of  pri- 
vate law  can  be  given;  and  we  think  that  this  opinion  will  be 
shared  by  all  who  read  this  translation. 

Those  who  study  both  this  Volume,  and  Volumes  I  and  IX  of 
this  Series,  which  contains  the  translation  of  the  part  of  M.  Bris- 
saud's  book  dealing  with  sources  and  public  law,  will  possess  an 
entirely  adequate  account  of  the  development  of  French  law.  The 
Editors  have  however  realized  that  there  may  be  some  students 
who  will  wish  to  begin  their  study  of  the  history  of  French  law  in 
this  volume,  and  that  they  will  need  something  in  the  way  of  a 
general  introduction  to  the  subject.  There  is  therefore  prefixed 
to  this  volume  the  introductory  chapter  on  Primitive  Law,  which, 
in  the  original,  is  prefixed  to  the  part  which  deals  with  public  law. 
It  seems  to  us  that  the  position  of  this  introduction  comes  more 
naturally  in  the  place  thus  allotted  to  it  in  the  translation  than  in 
the  place  allotted  to  it  in  the  original. 

"History,"  as  Maitland  said,  "involves  comparison." — The 
writer  who  would  tell  the  tale  of  the  legal  development  of  any  of 
the  States  of  Western  Europe  must  be  able  to  compare  and  to 

1  D.  C.  L.;  Fellow  and  Lecturer  in  Law,  St.  John's  College,  Oxford;  All 
Souls  Reader  in  English  Law  in  the  University  of  Oxfordj  Professor  of  Con- 
stitutional Law  at  University  College,  London,  1903;  of  Lincoln's  Inn,  Barris- 
ter-at-law;   author  of  "A  History  of  English  Law"  (1903-1909). 

xxxiii 


INTRODUCTION   TO   THIS   VOLUME 

contrast.  But  this  faculty  is  especially  necessary  to  the  historian 
of  French  law.  ]\Iany  elements  and  many  influences  have  gone 
to  the  making  of  the  French  nation  and  of  French  law;  and  there 
is  a  great  equality  in  their  relative  importance.  In  order  to  give 
a  true  account  and  a  correct  estimate  of  these  various  elements 
and  influences  —  Celtic,  Roman,  and  Germanic  —  the  historian 
of  French  law  must  often  look  abroad  and  observe  legal  systems 
in  which  the  element  or  influence  he  is  describing  can  be  observed 
in  greater  isolation.  It  is  because  INI.  Brissaud  can  illustrate 
and  explain  many  of  the  various  rules  which  prevailed  in  different 
parts  of  France  by  apt  comparisons  and  contrasts  drawn  from 
English,  German,  Italian,  and  Spanish  law,  that  his  history  gives 
us  an  account  of  the  development  of  French  law  at  once  concise 
and  exhaustive,  detailed  and  illuminating. 

We  could  have  no  better  illustration  of  the  breadth  of  M. 
Brissaud's  learning  than  the  Introduction  to  which  we  have 
already  referred.  It  deals  with  the  origins  of  the  Family,  of  Prop- 
erty, and  of  the  State,  and  it  would  serve  admirably  as  a  general 
introduction  to  a  history  of  the  law  of  the  States  of  Western  Europe. 
The  origins  of  many  of  the  institutions,  the  beliefs,  and  the  laws 
of  these  States  are  illustrated  by  parallels  drawn  from  the  insti- 
tutions, the  beliefs,  and  the  laws  of  the  Hebrews,  the  Greeks,  the 
Romans,  and  many  savage  tribes.  All  who  have  any  acquaint- 
ance with  the  acute  controversies  which  have  been  waged,  and 
wild  conjectures  which  have  been  made,  upon  many  of  the  topics 
dealt  with  in  that  Introduction  will  admire  both  the  extent  of 
M.  Brissaud's  learning,  and  the  sanity  of  his  judgment.  And  the 
promise  of  the  Introduction  is  maintained  throughout  the  book. 
]\Iore  especially  the  English  lawyer  will  admire  the  manner  in 
which  M.  Brissaud  has  used  doctrines  of  English  law  to  illustrate 
the  development  of  the  law  of  his  own  country.  He  can,  for 
instance,  describe  some  of  the  technical  doctrines  of  the  law  of 
real  property  —  the  most  technical  part  of  English  law  —  with 
substantial  accuracy;  and  he  can  thereby  give  to  English  lawyers 
an  idea  of  the  place  which  the  sources  of  some  of  their  peculiar 
rules  of  private  law  hold  in  relation  to  the  sources  of  the  rules  of 
private  law  on  similar  subjects  in  other  parts  of  Europe. 

The  English  lawyer  who  reads  these  pages  will  naturally  find 
himself  comparing  the  practical  results  which  have  followed  at 
different  periods  from  the  very  different  courses  which  the  develop- 
ment of  private  law  has  pursued  in  France  and  in  England;   and 

xxxiv 


INTRODUCTION   TO   THIS   VOLUME 

it  is  possible  that  he  will  sometimes  be  led  to  conclusions  which 
will  surprise  him.  We  are  accustomed  to  regard  France  as  a 
country  in  which,  in  the  Middle  Ages,  the  independence  of  the 
great  feudatories  led  to  the  formation  of  what  were  almost  separate 
States,  while  we  know  that  in  England  the  days  of  true  feudal 
independence  were  over  by  the  reign  of  Edward  I.  Then,  from 
the  sixteenth  century  to  the  Revolution  we  think  of  France  as 
the  country  in  which  absolute  monarchy  attained  its  zenith; 
and  we  contrast,  with  patriotic  pride,  the  continued  existence  in 
England  of  representative  institutions,  which  succeeded  in  sub- 
jecting the  power  of  the  king  to  the  law,  won  for  themselves  the 
most  authoritative  place  in  the  government  of  the  country,  and 
preserved  for  Europe  a  model  of  constitutional  rule.  Again, 
when  we  think  of  French  law,  we  are  apt  to  think  of  it  as  that 
of  a  country  in  which  Roman  law  held  a  large  sway;  to  infer  that 
this  influence  of  Roman  law  had  something  to  do  with  the  estab- 
lishment of  absolute  monarchy  in  the  sixteenth  and  seventeenth 
centuries;  and  to  conclude  that  the  cessation  of  the  direct  influence 
of  the  Roman  law  on  the  common  law  at  the  end  of  the  thirteenth 
century  was  a  wholly  unmixed  blessing. 

But  these  familiar  comparisons  are  all  made  from  the  point  of 
view  of  public  law.  When  we  turn  to  private  law  we  see  the 
picture  from  quite  another  point  of  view.  If  we  look  at  feudalism, 
not  from  the  point  of  view  of  public  law  as  a  system  of  govern- 
ment, but  from  the  point  of  view  of  private  law  as  a  system  of 
land  tenure,  we  see  that  the  influence  of  feudalism  was  more  far- 
reaching  and  more  permanent  in  England  than  in  France.  French 
law  knew  of  land  that  was  owned;  but  from  the  time  of  the  Con- 
queror English  law  only  knows  of  land  that  is  held.  In  the  French 
law  of  to-day  the  principle  of  tenure  has  been  eliminated.  In  Eng- 
land it  is  still  the  basis  of  our  land  law.  The  period  of  the  ab- 
solute monarchy  in  France  was  a  period  of  active  legislation  upon 
many  subjects  of  private  law.  English  law  in  the  seventeenth 
and  eighteenth  centuries  can  show  nothing  to  match  some  of 
those  comprehensive  Ordonnances  which,  by  reducing  to  order 
and  system  many  branches  of  French  law,  have  made  the  French 
nation  pioneers  in  the  work  of  codification.  The  events  of  the 
seventeenth  century,  which  made  our  public  law  an  example  to 
Europe,  cramped  the  development  of  our  private  law.  Similarly 
the  results  of  the  cessation  of  the  influence  of  Roman  law,  though 
it  may  have  had  beneficial  effects  on  the  development  of  our  public 

XXXV 


INTRODUCTION   TO   THIS   VOLUME 

law,  has  had  by  no  means  equally  beneficial  effects  on  the  develop- 
ment of  our  private  law.  The  common  law  became  a  hard,  rigid, 
and  technical  system  at  too  early  a  date.  It  could  give  no  legal 
expression  to  the  new  ideas  and  the  new  activities  produced  by  a 
changing  civilization.  These  new  ideas  and  activities  were  obliged 
to  find  a  space  outside  its  sphere;  and,  in  consequence,  English 
private  law  long  suffered  from  the  inconvenience  of  consisting 
of  rival  and  of  sometimes  contradictory  bodies  of  rules.  Even 
these  rivals  of  the  common  law  did  not  completely  fill  the  gap. 
Our  family  law,  for  instance,  is  meagre  compared  with  that  of 
France.  Upon  such  topics  as  guardianship,  adoption,  the  treat- 
ment of  prodigals,  we  have  something  to  learn  from  the  manner 
in  wdiich  foreign  nations  have  adapted  the  Corpus  Juris  Civilis 
to  the  needs  of  the  modern  state. 

It  is  good  that  a  complacent,  and,  may  we  add,  an  uninformed 
belief,  in  the  excellencies  of  our  own  private  law  should  be  shaken ; 
for  that  is  the  first  step  to  the  acquisition  of  better  information 
and,  sometimes  it  may  be,  to  the  making  of  practical  reforms. 
At  the  same  time  we  do  not  wish  to  contend  that  there  are  not 
some  respects  in  which  our  English  private  law  may  emerge  tri- 
umphantly from  such  a  comparison.  We  have  often  arrived  at 
the  same  goal  by  different  roads;  and  sometimes  our  road  has 
been  the  shorter  and  the  results  better.  Sometimes,  it  may  be, 
there  is  little  to  choose  between  the  methods  and  the  results 
achieved.    Let  us  take  one  or  two  examples. 

In  the  first  place  we  have  our  Trusts.  But  of  their  peculiar 
service  to  English  law  we  need  say  little  since  the  publication  of 
Maitland's  "Collected  Papers"  (1911).  The  readers  of  some  of 
these  papers  will  learn  what  these  Trusts  have  done  for  our  public 
law.  As  to  their  influence  on  our  private  law  we  can  only  say 
that  they  are  all-pervading.  They  have  given  to  owners  of  all 
kinds  of  property  unique  powers  and  modes  of  disposing  of  that 
property.  They  permeate  our  law  as  to  the  administration  of  the 
assets.  They  go  a  long  way  to  fill  up  those  large  gaps  in  our  family 
law  which  were  caused  by  the  summary  rejection  of  Roman  rules. 

Then,  we  have  evolved  for  ourselves  a  unique  law  of  contract 
founded  upon  the  doctrine  of  consideration.  The  road  which  our 
private  law  has  travelled  to  attain  this  result  is  very  different 
from  the  Roman  road;  but  the  results,  M.  Brissaud  thinks  (§  377), 
are  not  dissimilar.  At  any  rate  we  may  claim  for  our  own  doctrine 
that  it  is  at  least  as  intelligible  and  quite  as  convenient  as  its  rival. 

xxxvi 


mTRODUCTION   TO   THIS   VOLUME 

Similarly  we  have  worked  out  for  ourselves  some  detailed  rules 
as  to  the  incidents  of  particular  contracts.  Our  Sale  of  Goods 
Act  need  not  fear  the  results  of  a  comparison  with  the  title  of  the 
Digest  De  Contrahenda  Emptione,  or  with  the  modern  systems 
which  have  been  based  upon  it.  Our  theory  of  possession  and 
ownership  is  far  removed  from  the  Roman  theory.  Whether  it 
is  better  to  maintain  that  these  two  allied  conceptions  have 
nothing  in  common,  or  to  give  to  the  possessor  the  rights  of  an 
owner  as  against  all  who  cannot  prove  a  better  title,  is  a  fit  sub- 
ject for  philosophers  to  debate,  for  it  hardly  admits  of  a  conclusive 
solution.  On  the  other  hand,  no  one  can  doubt  that  our  private 
law  has  suffered  much  in  many  departments  from  the  arbitrary 
divorce  between  possession  and  seisin,  between  realty  and  per- 
sonalty. Nor  again  can  we  doubt  that  it  has  also  suffered  from 
its  ignorance  of  Roman  rules  as  to  mortgage  and  pledge,  and  that 
it  has  only  partially  mended  matters  by  the  help  of  the  elaborate 
law  of  mortgage  created  by  the  court  of  Chancery,  and  by  detailed 
statutes  on  the  subject  of  Bills  of  Sale.  We  do  not  mean  to  imply 
that  the  history  of  the  French  law  of  mortgage  has  been  wholly 
clear  and  rational.  Indeed,  there  are  some  passages  in  the  history 
of  this  branch  of  the  law  which  illustrate  the  truth,  which  is  writ 
large  upon  the  face  of  our  law  of  real  property,  that  landowners 
cannot  have  their  cake  in  the  shape  of  secret  dealings  w^ith  their 
land,  and  eat  it  in  the  shape  of  cheap  and  simple  forms  of  trans- 
fer and  of  certainty  of  title. 

Both  the  countries  of  the  wTitten  law  and  the  countries  of 
the  Customs  have  been  for  many  centuries  drawing  upon  the 
Tvealth  of  principles  to  be  found  in  Roman  law.  They  have  used 
them  to  supplement  and  adapt  old  customary  rules.  They  were, 
therefore,  if  we  may  use  the  expression,  far  fuller  bodies  of  law 
than  the  English  common  law,  which,  from  the  end  of  the  thir- 
teenth century,  had  drawn  its  inspiration  almost  entirely  from  the 
cases  which  arose  for  decision  in  its  courts.  The  peculiarities  of 
the  constitutional  history  of  England  had  made  its  development 
extraordinarily  precocious.  But  English  judges  and  English  law- 
yers, though  learned  in  the  common  law,  and  endowed  for  the  most 
part  with  sound  common  sense,  had  come  to  be  very  ignorant  of 
any  system  of  law  except  their  own.  This  combination  of  pre- 
cocity and  ignorance  often  made  its  solution  of  complex  problems 
extremely  hasty  and  extremely  arbitrary.  In  fact,  just  as  a  pre- 
mature codification  of  a  body  of  customary  law  which  is  being 

XXX  vii 


INTRODUCTION   TO   THIS   VOLUME 

gradually  developed  by  the  writings  of  the  jurists  or  the  work  of 
the  courts,  destroys  much  of  its  adaptability  to  altering  facts 
and  needs;  so,  the  premature  hardening  of  the  common  law, 
drew  sharp,  clear  lines  across  complicated  facts  and  hazy  collec- 
tions of  customary  rules,  and  thus  prevented  natural  developments 
which  the  indefiniteness  of  the  older  rules  permitted.  We  can  see 
from  the  history  of  French  private  law  that  these  characteristics 
have  influenced  our  law  both  for  good  and  for  evil.  When  we  read 
the  complex  history  of  the  various  "retraits"  which  were  long 
possible  under  French  law  we  are  inclined  to  bless  the  memory 
of  Bracton  and  those  of  his  companions  who  argued  successfully 
for  freedom  of  alienation.  On  the  other  hand,  when  we  consider 
the  history  of  the  proprietary  and  contractual  capacity  of  the 
married  woman  in  our  law,  we  cannot  admire  the  hasty  conclusion, 
at  which  our  common  lawyers  arrived,  that  marriage  was  a  gift 
of  all  the  wife's  chattels  to  her  husband,  and  that,  having  no 
property,  she  could  in  general  make  no  contract  on  her  own  be- 
half. How  complicated  the  problem  was,  how  numerous  the 
various  competing  solutions  the  student  will  learn  from  the  study 
of  M.  Brissaud's  fifth  chapter  —  an  extraordinarily  able  account 
of  one  of  the  most  complex  subjects  in  legal  history. 

In  truth  the  detailed  account  of  advantage  and  disadvantage 
between  the  English  and  the  French  systems  of  private  law  would 
be  long  and  complicated.  We  can  make  no  attempt  to  state  it 
here.  But  the  readers  of  this  Series  of  translations  will  have  before 
them  the  material  from  which  they  can  make  such  a  statement 
in  respect  of  the  particular  branch  of  the  law  which  they  may  be 
studying.  It  seems  to  us  that  the  power  to  do  this  will  be  valuable 
not  only  to  those  who  are  interested  in  the  history  of  the  law,  but 
also  to  those  who  are  interested  in  its  modern  working.  No  doubt 
the  mediaeval  history  of  the  law  will  appeal  especially  to  the 
historian,  and  its  development  during  the  last  century  to  the 
practical  lawyer.  The  intermediate  stage,  from  the  sixteenth 
to  the  eighteenth  century,  to  both  alike  —  to  the  historian  be- 
cause he  will  see  the  results  of  the  mediaeval  history,  to  the 
practical  lawyer  because  he  will  see  the  growth  of  the  modern 
rules. 

That  this  study  of  comparative  legal  history  will  be  profitable 
to  the  students  both  of  the  history  and  of  the  modern  theory  of 
our  law  will,  we  think,  be  obvious  to  all  who  read  this  book.  But 
we  may  perhaps  be  permitted  to  indicate  very  briefly  the  kind  of 

xxxviii 


INTRODUCTION   TO   THIS   VOLUME 

profit  which  different  classes  of  students  may  be  expected  to  derive 
from  it. 

Even  a  slight  acquaintance  with  mediaeval  history  is  sufficient 
to  show  that  the  student  of  the  mediseval  history  of  our  law  will 
derive  great  and  immediate  profit  from  the  study  of  the  mediaeval 
law  of  another  State.  Right  down  to  the  sixteenth  century  Western 
Europe  was  for  many  purposes  one  State.  No  doubt  institutions 
and  legal  rules  differed,  and  differed  considerabl}',  in  detail.  But 
men's  legal  ideas  were  cast  in  a  similar  mould.  The  political 
theories  and  speculations  and  the  rules  of  law  evolved  by  the 
canonists  and  civilians  were,  more  or  less,  a  part  of  the  intellectual 
atmosphere  of  publicists  and  lawyers  in  many  different  countries. 
The  feudal  conception  of  tenure,  and  the  consequences  of  the 
feudal  bond  between  lord  and  man,  dominated  the  law  as  to  the 
ownership  of  land;  and  the  political  influence  of  these  feudal 
conceptions  was  so  deep-rooted  that,  right  down  to  the  latter 
part  of  the  sixteenth  centur^^  it  was  a  weapon  in  the  hands  of 
those  who  wished  to  assert  themselves  against  the  nascent  state. 
Beneath  the  feudal  pyramid  we  can  everywhere  see  older  commu- 
nities of  cultivators  of  the  soil,  held  together  by  customary  rules 
which  preserve  traces  of  ideas,  and  survivals  of  practices  belonging 
to  a  remote  past.  Thus  the  student  of  our  mediaeval  history  will 
find  in  M.  Brissaud's  book  resemblances  in  the  origin  and  in  the 
development  of  legal  rules  which  will  help  him  to  understand 
much  that  is  obscure  in  the  development  of  his  own  law.  We 
would  recommend  to  his  notice  such  subjects  as  M.  Brissaud's 
account  of  the  history  of  the  remedies  for  the  protection  of  the 
possession  and  ownership  of  chattels;  of  the  actio  spolii  and  its 
influence  on  the  protection  of  seisin;  of  the  legal  results  which 
might  flow  from  possession  for  a  year  and  a  day;  of  the  primitive 
forms  of  liability  and  their  later  development;  of  the  institution 
of  dower ;  of  the  history  of  the  assignment  of  choses  in  action  and 
negotiability. 

And  these  are  but  a  few  out  of  many  instances  in  which  the 
resemblances  between  the  English  and  the  French  rules  shed  light 
upon  each  other.  The  contrasts  are  no  less  instructive,  because 
from  them  we  can  get  a  just  estimate  of  the  far-reaching  results 
which  have  sometimes  flowed  from  a  course  of  policy  or  a  piece 
of  legislation.  Suppose  our  common  law  had  been  developed  by 
lawyers  of  the  type  of  Bracton  —  we  can  find  a  good  deal  to  help 
us  to  an  understanding  of  the  different  course  which  its  history 

xxxix 


INTRODUCTION   TO   THIS   VOLUIVIE 

would  have  taken  in  the  history  of  the  law  in  the  "  pays  du  droit 
coutumier."  Our  reversions  and  remainders  would  have  been 
substitutions  in  trust;  our  estates  for  life  would  have  been  usu- 
fructs; our  law  of  inheritance  would  have  lost  many  of  its  medi- 
aeval traits;  our  law  of  contract  would  have  owed  much  to  Roman 
law;  and,  in  the  sixteenth  century,  our  common  law  would  have 
been  far  more  deeply  affected  by  the  Reception.  Suppose  that 
Council,  and  Chancery,  and  common  law  courts  had  not  worked 
together  in  the  sixteenth  century  to  effect  an  equitable  settlement 
of  the  position  of  the  copyholder  —  we  may  remember  that  it 
was  the  wrongs  of  a  class  that  once  resembled  our  copyholders 
which  was  one  of  the  important  causes  of  the  French  Revolution. 

From  the  sixteenth  century  onwards  Europe  is  divided  into 
separate,  self-sufficing  territorial  States.  It  would  be  probably 
true  to  say  that  the  nations  of  Europe  were  more  separate  from 
one  another  in  the  period  from  the  seventeenth  to  the  first  quarter 
of  the  nineteenth  century,  than  at  any  other  period  in  their  his- 
tory. Perhaps  during  this  period  it  is  the  contrast  between  the 
English  and  the  continental  public  law,  and  between  the  agencies 
by  which  the  law  is  developed,  which  is  the  most  fruitful  subject 
of  comparison.  But  it  is  a  period  in  which  a  comparison  between 
the  development  of  the  rules  of  English  and  French  private  law 
is  also  very  instructive.  We  see  rules  once  similar  taking  a  wholly 
different  form.  We  see  the  beginnings  of  the  rules  and  the  tech- 
nical language  of  the  modern  law. 

During  the  last  half  of  the  last  century  physical  science  has 
done  much  to  unite  the  communities  which  wars  of  religion  and 
the  growi;h  of  the  sovereign  state  had  separated.  Similar  problems 
—  social,  industrial,  and  religious  —  remain  to  be  solved  both 
by  the  public  and  by  the  private  law  of  the  principal  states  of 
Western  Europe.  We  have  only  to  think  of  such  matter  as  Cor- 
porations and  other  Group  Persons,  the  limits  of  the  right  of  Com- 
bination, Strikes  and  Lock-outs,  the  relations  of  Church  and  State, 
Divorce,  Land  Transfer,  Codification.  The  solution  of  such 
problems  as  these  taxes  to  the  utmost  the  resources  of  all  legal 
systems.  If  the  lawyer  or  the  statesman  can  understand,  not 
merely  the  technical  rules  of  his  own  system,  but  also  the  tech- 
nical rules  of  other  systems,  he  will  be  able  the  more  easily  to 
emancipate  his  mind  from  the  texts  of  his  own  law,  to  discover 
the  principles  underlying  the  various  legal  solutions  of  these 
problems,  and  to  weigh  their  merits.     It  is  only  a  comparative 

xl 


INTRODUCTION   TO   THIS    VOLUME 

study  of  legal  history  which  can  give  this  power.  Therefore  we 
claim  that  in  these  modern  days  this  study  is  of  the  first  importance 
to  all  lawyers  and  statesmen  who  wish  to  criticise  intelligently 
their  own  legal  system,  or  to  reform  it  wisely.  That  there  should 
be  in  the  State  men  thus  equipped  is  the  greatest  of  all  safeguards 
both  to  the  State  and  to  the  Law.  To  the  State,  because  they  will 
know  how,  by  the  adjustment  of  old  rules  to  new  needs,  to  main- 
tain the  authority  of  the  law,  and  to  ensure  thereby  the  peaceful 
and  orderly  development  of  the  State.  As  the  Year  Book  truly 
says,  "the  Law  is  the  highest  inheritance  which  the  king  has; 
for  by  the  Law  he  and  all  his  subjects  are  ruled,  and  if  there  was 
no  Law,  there  would  be  no  king  and  no  inheritance."  To  the  Law 
itself,  because  a  peaceful  and  orderly  development  of  the  State  is 
its  very  life.  Unintelligent  criticism  and  wild  reform  can  in  a 
short  time  reduce  to  chaos  the  labours  of  generations  of  jurists. 
When  continuity  fails,  law  as  a  science  ceases  to  exist. 

We  hope  great  things  from  the  comparative  study  of  the  history 
of  the  legal  systems  of  Western  Europe.  The  cosmopolitan  charac- 
ter of  French  law  makes  its  study  an  excellent  starting  point; 
and  M.  Brissaud  is  an  ideal  guide  to  its  doctrines  and  its  literature. 
But  it  is  time  that  the  reader  ceased  the  perusal  of  this  hearsay 
evidence  as  to  the  merits  of  M.  Brissaud's  book  and  the  advantages 
to  be  derived  from  its  study,  and  began  to  acquire  some  more 
direct  evidence  upon  these  matters  from  the  perusal  of  the  book 
itself.  We  hope  that  he  will  admit  that,  though  hearsay  is  no  evi- 
dence, it  may  sometimes  contain  a  substantial  modicum  of  the 
truth. 

Oxford,  England,  October  17,  1911. 


xli 


TRANSLATOR'S  REMARKS 

In  the  translation  of  a  work  of  this  kind  there  will  necessarily 
be  found  a  number  of  words  having  a  technical  meaning  which 
have  no  literal  English  equivalents,  as  the  systems  of  English 
and  Continental  law  differ  so  greatly  on  many  points.  There- 
fore the  nearest  English  word,  or  a  term  coined  for  the  purpose, 
must  be  used.  Examples  of  such  words  are:  "  hypotheque," 
"  nantissement,"  "  retrait,"  "  delit,"  etc.  In  the  work  of  finding 
suitable  equivalents  for  such  words  the  translator  has  been  very 
greatly  assisted  by  the  Chairman  of  the  Editorial  Committee 
and  wishes  to  take  this  opportunity  of  acknowledging  the  in- 
debtedness and  expressing  his  sincere  thanks  and  appreciation. 

The  question  of  the  notes  has  been  a  very  difficult  one  to 
deal  with.  In  the  original  French  they  are  not  any  too  clear; 
rendering  them  into  English  cannot  do  much  towards  overcom- 
ing this.  This  obscurity  consists  in  a  lavish  use  of  abbrevi- 
ations, not  all  of  which  are  explained  by  the  author  in  the 
Table  of  Abbreviations,  and  in  the  fact  that  a  recurring  word 
is  very  often  abbreviated  in  different  ways.  Another  diffi- 
culty is  the  string  of  numbers  following  citations;  it  is  some- 
times difficult  to  know  what  they  indicate.  To  be  sure,  a 
partial  explanation  is  given  in  one  of  the  notes,  but  it  is  inad- 
equate. Besides  all  this  there  are  a  goodly  number  of  proof- 
reader's errors  throughout  the  notes  in  the  original  French,  To 
have  verified  every  citation  would  have  been  impracticable, 
especially  as  many  of  the  works  cited  probably  exist  only  in  the 
archives  of  the  French  Government. 

In  this  translation  Brissaud's  original  headings  have  been  pre- 
served with  one  most  important  exception.  The  original  work  is 
in  two  volumes,  and  is  divided  into  three  general  Parts,  —  those 
of  "Sources  of  French  Law,"  "Public  Law,"  and  "Private  Law." 
This  volume  purports  to  be  a  translation  of  Part  III,  on  "Pri- 
vate Law,"  but  it  has  been  thought  advisable  by  the  Committee 
to  add  to  it,  as  a  first  chapter  and  by  way  of  introduction,  the 
Introductory  Chapter  which  in  the  French  original  is  printed  at 
the   beginning  of   Part    II,  on   "Public  Law";    this  chapter  is 

xliii 


TRANSLATOR  S   REMARKS 

called  "Origin  of  the  Family,  of  Ownership,  and  of  the  State." 
It  will  undoubtedly  be  of  material  assistance  in  understanding 
the  chapters  which  were  included  under  Part  III,  on  "Private 
Law,"  in  the  original.  The  remainder  of  Part  II,  on  "Public 
Law,"  will  form  another  of  the  volumes  of  the  present  Series, 
and  extracts  from  Part  I,  on  "Sources,"  have  been  used  in  con- 
junction with  other  authors  in  the  "  Historic  Survey,"  the  intro- 
ductory volume  of  this  Series.  The  author's  Introduction  to 
his  first  volume  will  be  printed  in  the  last  volume  of  this  Series, 
under  the  title  "  Philosophy  of  the  Evolution  of  Law." 


xliv 


GENERAL  REFERENCE   LIST  OF  TREATISES    CITED 

Camus  and  Dupin,  "Profession  d'Avocat,  Bibliographie  choisie 
des  Livres  de  Droit,"  II,  5th  ed.,  1832. 

G.  Monod,  "Bibliographie  de  I'Histoire  de  France,"  1888. 

U.  Chevalier,  "  Repertoire  des  Sources  Historiques  du  Moyen  Age," 
1883  et  seq. 

R.  de  Lasteyrie  and  E.  Lefevre-Portalis,  "Bibliographie  generale 
des  Travaux  Historiques  publics  par  les  Societes  savantes  de  la 
France,"  1888  ct  seq. 

Holtzendorff,  "  Encyclopadie  der  Rechtswissenschaft  in  systema- 
tischer  und  alphabetischer,  Bearbeitung,"    4th  ed.,  1882. 

0.  Muhlhrecht,  "  Wegweiser  durch  die  neuere  Litteratur  des  Rechts- 
und  Staatswissenschaften,"  1893. 

History  of  Roman  Law.  —  Public  Law :  Mommsen  and  Mar- 
quardt,  "Manuel  des  Antiquites  Romaines,"  French  translation, 
1887  et  seq.  Mispoulet,  "  Les  Institutions  politiques  des  Romains," 
1882-83.  Bouche-Leclercq,  "  Manuel  des  Institutions  Romaines,"  1886. 
Mommsen,  "Abriss  des  romischen  Staatsrecht,"  1893.  Private 
Law:  Accaria,  "Precis  de  Droit  Romain,"  4th  ed.,  1886.  Cuq,  "Les 
Institutions  juridiques  des  Romains,"  I,  1891.  P.  F.  Girard,  "Manuel 
elementaire  de  Droit  Romain,"  1896  (and  numerous  authors  cited 
therein). 

History  of  French  Law.  —  Laferriere,  "  Histoire  du  Droit  Fran- 
(?ais,"  1845-58.  Warnkoenig  and  Stein,  "  Franzosische  Staats-  und 
Rechtsgeschichte,"  1846-48.  Schaejfner,  "Geschichte  der  Rechts- 
verfassung  Frankreichs,"  1849-50,  2d  ed.,  1859.  Koenigswarter, 
"Sources  et  Monuments  du  Droit  Fran^ais  anterieurs  au  Quinzieme 
Siecle,"  1853.  Gasquet,  "Precis  des  Institutions  politiques  et  sociales 
de  I'ancienne  France,"  1885.  Ginoulhac,  "Cours  elementaire  d'His- 
toire  generale  du  Droit  Fran^ais,  public  et  prive,"  1st  ed.,  1884; 
2d  ed.,  1890.  Viollet,  "Precis  de  I'Histoire  du  Droit  Fran^ais," 
1884-86.  The  2d  ed.  is  entitled  "  Histoire  du  Droit  Civil  Fran^ais," 
1893.  Glasson,  "Histoire  du  Droit  et  des  Institutions  de  la  France," 
I  to  VII  (incomplete),  1887-96.  Esmein,  "Cours  elementaire  d'His- 
toire  du  Droit  Fran^ais,"  1892,  2d  ed.,  1895.  Fustel  de  Coulanges, 
"Histoire  des  Institutions  politiques  de  I'ancienne  France,"  1882-92 
(ed.  Julian).  Flach,  "Les  Origines  de  I'ancienne  France,"  1886-93. 
Luchaire,  "Manuel  des  Institutions  Fran(?aises,"  1892.  Cheruel, 
"  Dictionnaire  historique  des  Institutions,  Moeurs  et  Coutumes  de 
la  France"  1st  ed.,  1855. 

History  of  Belgian  Law.  —  Warnkoenig,  "  Histoire  du  Droit 
Belgique,"  1827,  and  "Flandrische  Staats-  und  Rechtsgeschichte," 

xlv 


GENERAL    REFERENCE    LIST    OF   TREATISES   CITED 

1835-42.  Dcfacqz,  "  Ancien  Droit  Belgique,"  1846-73.  Britz,  "  Code 
de  1 'Ancien  Droit  Belgique,"  1847. 

History  of  Swiss  Law.  —  V.  Orelli,  "  Vorlesungen  iiber  schweitzer. 
Rechtsgeschichte, "  2d  ed.,  1884. 

History  of  German  Law.  —  Grimm,  "  Rechtsalterthiimer,"  1828, 
3d  ed.;  same,  1881.  G.  Waitz,  "Deutsche  Verfassungsgeschichte," 
I  and  II,  3d  ed.,  1880-82;  III- VI,  2d.  ed.,  1883-96;  VII- VIII,  1st 
ed.,  1878.  Stobbe,  "Geschichte  der  deutschen  Rechtsquellen,"  1860- 
64;  "Handbuch  des  deutschen  Privatsrechts,"  1885.  Schulte, 
"Lehrbuch  der  deutschen  Reichs  und  Rechtsgeschichte,"  5th  ed., 
1881  (French  translation  by  Fournier,  "Histoire  du  Droit  et  des 
Institutions  de  rAllemagne,"  1882).  Sicgcl,  "Deutsche  Rechts- 
geschichte," 1886.  Brunncr,  "Deutsche  Rechtsgeschichte,"  1887-92. 
Schroeder,  "Lehrbuch  der  deutschen  Rechtsgeschichte,"  1882. 
Heusler,  "  Institutionen  des  deutschen  Privatrechts,"  1885-86. 
Frommhold,  "Deutsche  Rechtsgeschichte,"  1894.  Thudichum,  "Ge- 
schichte des  deutschen  Privatrechts,"  1874.  "  Untersuchungen  zur 
Deutschen  Staats-  und  Rechtsgeschichte,"  edited  by  Gierke. 

History  of  English  Law:  Glassoji,- " Histoive  du  Droit  et  des 
Institutions  de  I'Angleterre,"  1882-83.  Pollock  and  Maitland,  "His- 
tory of  the  English  Law  before  the  Time  of  Edward  I, "  1895. 

History  of  Spanish  and  Portuguese  Law.  —  Scmpere,  "  Historia 
del  Derecho  Espanol,"  3d  ed.,  1846.  Brauchitsch,  "Geschichte  des 
spanischen  Rechts,"  1852.  Helfferich,  "Enstehung  und  Geschichte 
des  Westgotenrechts,"  1858.  Antequera,  "Historia  de  la  Legisla- 
cion  Espanola,"  1874.  Hinojosa,  "Historia  General  del  Derecho 
Espaiiol,"  I,  1887.  On  the  history  of  Portuguese  law  see  Camus, 
p.  637. 

History  of  Italian  Law.  —  Sclopis,  "  Storia  della  Legislazione 
Italiana,"  1833  (French  translation,  1861).  Pertile,  "Storia  del 
Diritto  Itahano,"  1st  ed.,  1871;  2d  ed.  La  Mantia,  "Storia  della 
Legislazione  Italiana,"  1884.  Salvioli,  "Manuale  di  Storia  del  Diritto 
Itahano,"  1890.  Calisse,  "Storia  del  Diritto  Itahano,"  1891.  Schup' 
fer,  "Manuale  di  Storia  del  Diritto  Italiano,  Le  Fonti,"  1892. 


xlvi 


TABLE  OF  ABBREVIATIONS  MOST  FREQUENTLY  USED 

"A.  C."  =  "  Ancienne  Coutume." 

"Archiv.  Pari."  =  Madival  and  Laurent,  "Archives  Parlementaires,"  1867 
et  seq.  (The  "Cahiers"  of  the  States  General  will  also  be  found  in- 
cluded within  them.) 

"Ac.  Sc.  Morales"  =  "Comptes  Rendus  de  I'Acaddmie  des  Sciences  morales 
et  politiques,"  1840  et  seq. 

"Ac.  Inscr."  =  "Academie  des  Inscriptions  et  Belles-Lettres,"  1717  et  seq. 

"Ac.  Legisl."  =  "Recueil  de  I'Academie  de  Legislation  de  Toulouse,"  1851  et  seq. 

"Atti  Modena,"  "Parma,"  etc.  =  "Atti  e  Memorie  delle  Deputazioni  di 
Storia  Patri  di  Modena,"  "Parma,"  "Bologna,"  etc. 

D.  Bouquet  =  Dorn  Bouquet,  "Recueil  des  Historiens  dea  Gaules  et  de  la 
France,"  1738-1876. 

B.  de  R.  =  Bourdot  de  Richebourg,  "Nouveau  Coutumier  General,"  1724. 

"Bourg."  =  "Coutume  de  Bourgogne." 

"B.  Chartes"  =  "  Bibliotheque  de  I'Ecole  des  Chartes,"  1835  et  seq. 

"  B.  Comit6  hist."  =  Bulletin  du  Comite  des  Travaux  historiques,"  1882  et  seq, 

"Bull,  crit."  =  "Bulletin  critique,"  188  et  seq. 

"B.  Hist.  France"  =  "Bulletin  de  la  Societe  pour  I'Histoire  de  France," 
1834  et  seq. 

"B.  Hist.  Prot."  =  "Bulletin  de  la  Societe  pour  THistoire  du  Protestan- 
tisme,"  1852  et  seq. 

"B.  Leg.  comparce"  =  "  Bulletin  de  la  Societe  de  Legislation  comparee,"  1869. 

"B.  Antiquaires  de  France"  =  "Bulletin  de  la  Societe  des  Antiquaires  de 
France." 

"Cap."  =  Capitularia  Regum  Francorum,"  ed.  Boretius  and  Krause,  1881. 

"C.  Th."  or  "Cod.  Theod."  =  "Code  Theodosien,"  ed.  Haenel,  1842. 

"C.  J."  or  "Cod.  Just."  =  "Code  Justinien,"  ed.  Kriiger,  1877. 

"C.  J.  C."  =  "Corpus  Juris  Civilis,"  ed.  Mommsen  and  Kruger,  1866-77-95. 

"C.  J.  Can."  =  "Corpus  Juris  Canonici,"  ed.,  Friedberg,  1878-80. 

"Cone."  =  "Concilia." 

"D.  Greg."  =  "Decretales  de  Gregoire  IX"  or  "Extra.,"  ed.  Friedberg, 
1878-80. 

Daremb.  =  Daremberg  and  Saglio,  "  dictionnaire  des  Antiquites,"  1873. 

"D."  or  "Dig."  =  "Digeste,"  ed.  Mommsen,  1866-70. 

"Dipl."  =  see  Pardessus. 

"Forschungen"  =  "Forschungen  zur  deutschen  Geschichte,"  1860. 

"G.  Chr."  =  "Gallia  Christiana"  1715-1865. 

"Gr.  Cout."  =  "Grand  Coutumier." 

Guyot,  "R6p."  =  Guyot,  "Repertoire  de  Jurisprudence,"  1775-86. 

Ruber  =  E.  Ruber,  "System  und  Geschichte  des  schweitzerischen  Privatrechts." 

Isambert  =  "Recueil  des  Anciennes  Lois  Frangaises  de  420  k  1789,"  by  Jour- 
dan,  Decrusy  and  Isambert,  1822-27. 

"J.  Savants"  =  "Journal  des  Savants,"  1665  et  seq. 

"L.  Sal.,"  "L.  Rib.,"  "L.  Bai.,"  etc.,  or  "Sal.,"  "Rib.,"  "Bai.,"  etc.  =  "Lex 
Salica,"  "Lex  Ribuaria,"  "Lex  Baiuwariorum,"  etc.,  etc. 

Loysel  100  =  Loysel  "Institutes  Coutumieres,"  Rule  100  of  the  Dupin  and 
Laboulaye  edition. 

xlvii 


TABLE   OF   ABBREVIATIONS 

Leber  =  Leber,  "Collection  deg  meilleurs  Dissertations,  Notices  et  Traitds 

particuliers  relatifs  k  I'Histoire  de  France,"  1826-42. 
"L.  L."  =  Leges. 
"M.  Antiquaires  de  France"  =  "M^moires  de  la  Soci^t^  des  Antiquaires 

de  France." 
"Mem.  Paris"  =  "Memoiresde  la  Society  de  I'Histoire  de  Paris,"  1874  et  seq. 
"M.  Boica"  =  "Monumenta  Boica,"  1769. 
"M.  G.  H."  =  "  Monumenta  Germanise  Historica,"  1826. 
"M.  H.  Portug."  =  " Portugalliaj  Monumenta  Historica,"  1870-73. 
"M.  H.  Patr."  =  "Historia;  Patriaj  Monumenta,  Chartse,"  Turin,  1836,  etc. 
"N.  C."  =  "Nouvelle  Coutume." 

"N.  R.  H."  =  "Nouvelle  Revue  Historique  de  Droit  Frangais  et  Etranger." 
"Ord."  =  "Ordonnances  des  Rois  de  France  de  la  Troisieme  Race,"  1723- 

1849  (collection  of  the  Louvre). 
Pard.  or  Pardessus,   "Dipl."  =  Pardesstis,   "Diplomata,  Chartse  et  Instru- 

menta  iEtatis  Merowingicae,"  1841-49. 
"Paris"  =  "Coutume  de  Paris,"  and  so  generally  names  of  places  cited  alone 

followed  by  numbers  indicate  the  Custom  of  that  place;   e.  g.,  "Tou- 
louse" =  "Coutume  de  Toulouse,"  etc. 
P^ard  =  Perard,  "Pieces  curieuses  servant  k  I'Histoire  de  Bourgogne,"  1654. 
"R.  A."  =  Grimm,  "Rechtsalterthumer."  1828,  3d  ed.,  1881. 
"R.  Brit.  Scriptores"  =  "Rerum    Britannicarum    Medii    ^vi    Scriptores," 

1858  et  seq. 
"R.  Quest,  hist."  =  "Revue  des  Questions  historiques,"  1866  et  seq. 
"R.  H."  ==  "Revue  historique,"  G.  Monod,  1876  et  seq. 
"R.  crit.  d'Hist."  =  "Revue  critique  d'Histoire  et  de  Litterature." 
"R.  H.  D."  =  "Revue  Historique  de  Droit  Frangais  et  Etranger,"  1855-69. 
"R.  L."  =  "Revue  de  Legislation  ancienne  et  moderne,"  1870-77. 
"R.  G."  =  "Revue  generale  du  Droit,"  1877. 

Schmidt,  "Ang."  =  Schmidt,  "Gesetze  der  Angelsachsen,"  2d  ed.,  1858. 
Schoepflin  =  Schoepfiin,  "xHsatia  diplomatica,"  1772-75. 
Sagnac  =■  Sagnac,  "La  Legislation  Civile  de  la  Revolution  Frangaise,"  1898. 
"T.  A.  C."  =  "Tros  Ancienne  Coutume." 
D.  Vaissette  =  "Histoire  generale  de  Languedoc,"  by  Dom  CI.  Devic  and  D. 

Vaissette,  ed.  Privat,  1874. 
Varin  =  Varin,  "Archives  legislatives  de  la  Ville  de  Reims,"  1840. 
"V.  G."  =  Waitz,  "Deutsche  Verfassungsgeschichte,"  I  and  III,  3d  ed.,  1880- 

82;  in-VI,  2d  ed.,  1883-96;  VII-VIII,  1st  ed.,  1878. 
"Z.  R.  G."  =  "Zeitschrift  fiir   geschichtUche  Rechtswissenschaft,"    1815  to 

1850;  "Zeitschrift  fur  Rechtsgeschichte,"  1862-78. 
"Z.  S.  S."  =  "Zeitschrift  der  Savigny-Stiftung  fiir  Rechtsgeschichte,"  from 

1880. 
"Z.  V.  R."  =  Zeitschrift  fiir  vergleichende  Rechtwissenschaft,"  1882. 

Treatises  such  as  those  by  Stobbe,  Fertile,  Glasson,  Pollock  and  Maitland, 
etc.,  which  are  given  in  the  General  Reference  List,  ante,  p.  xlv,  are  cited  by  the 
names  of  their  authors,  followed  by  numerals.  For  example,  Stobbe;  Fertile;  etc. 

The  Roman  numerals  following  the  citation  generally  indicate  the  volume, 
the  Arabic  the  'page.  This  is  not  invariable,  however,  as  Loysel  100  means 
rule  100  of  Loysel's  "Institutes  CoutumiSres,"  and  "Paris,  A.  C,"  100,  means 
article  100  of  the  "Ancienne  Coutume  de  Paris,"  and  in  the  Customs 
the  Arabic  numeral  always  refers  to  the  article.  By  referring  to  the  works 
cited  or  the  Reference  List  this  distinction  as  to  the  numerals  may  readily  be 
ascertained. 

xlviii 


HISTORY  OF   FRENCH 
PRIVATE   LAW 


INTRODUCTION  TO   PRIVATE   LAW 

Topic  1.  Origin  of  the  Family 
Topic  2.  Origin  of  Ownership 
Topic  3.  Origin  of  the  State 


Topic  1.    Origin  of  the  Family 


§    1.  In  General. 

§    2.  Theories  of  the  Evolutionists. 

§  3.  First  Stage.  Promiscuity  or 
States  bordering  upon  it. 

§  4.  The  Consequences  of  Promis- 
cuity. 

§  5.  Second  Stage.  Matriarchate.  — 
Evolution  towards  the  Mater- 
nal Family. 

§    6.  The  Prohibition  of  Incest. 

§    7.  Marriage  by  Groups. 

§    8.  Polyandry. 

§    9.  Among  the  Reddies. 

§  10.  Exogamy. 

§  11.  Organization  of  the  Maternal 
Family.  Relationship  through 
the  Same  Mother. 

§  12.  Third  Stage.    Patriarchate. 

§  13.  Formation  of  Marriage.  (I)  Ab- 
duction. 

§  14.  The  Same.    (II)  Purchase. 

§  15.  Marriage  by  Servitude. 


§16. 


Status  of 


Effects  of  Marriage, 
the  Wife. 
§  17.  The  Position  of  Children. 
§  18.  Levirate. 

§  19.  The  Recognition  of  Paternity. 
§  20.  Adultery. 
§  21.  Agnatic  Relationship. 
§  22.  Systems  of  Succession. 
§  23.  Ancestor  Worship. 
§  24.  Family  Communities. 

Dissolution  of  Family  Commu- 
nities. Evolution  towards  the 
Simple  Family. 
Polygamy. 

Evolution  towards  Monogamy. 
Forms  of  Transition. 
§  29.  Monogamy. 
§  30.  Evolution    towards    the  Inde- 
pendence of  Children. 
§§  31,  32.  Evolution    towards    the 
Emancipation  of  Woman. 


§25. 


§26. 

§27. 
§28. 


§  1.  In  General.  —  Origin  of  the  family,  of  ownership,  of  the 
State,  —  obscure  questions  of  the  most  obscure,  —  good  questions 
for  the  framers  of  hypotheses!  The  facts  upon  which  their  reason- 
ing must  be  based,  which  are  often  very  vague,  are  attested  by 
credulous  historians  or  travelers  little  worthy  of  belief;  they  are  to 
be  accounted  for  in  three  or  four  ways;  the  various  systems  adopt 
them,  and  systems  abound.    On  going  through  the  hastily  erected 


§  1]  INTRODUCTION   TO    PRIVATE    LAW  [Intro. 

structures,  built  on  the  sand,  we  experience  an  impression  of  in- 
security and  discouragement.  All  generalizations  are  as  yet  vain; 
we  are  only  at  the  period  of  observation  and  search  for  details. 
Only  one  thing  is  certain,  and  that  is  that  human  societies  have 
come  into  existence  slowly;  the  family,  ownership,  and  the  State, 
which  we  are  accustomed  to  look  upon  as  unchanging  institutions, 
have  had  humble  beginnings  and  have  undergone  numerous 
variations  before  arriving  at  their  present  form.  These  varia- 
tions are  proved;  it  remains  to  establish  the  law  which  governs 
them.  It  is  impossible  to  maintain  that  this  evolution  has  been 
the  same  everywhere.  There  is  something  very  unstable  about 
the  ties  which  there  has  been  an  attempt  to  establish  between 
the  economic  state,  the  psychological  state,  and  the  social  state. 
The  three  stages  through  which  the  various  peoples  seem  to  have 
passed  in  their  economic  life,  —  hunting  and  fishing,  the  pastoral 
life,  and  agriculture,  —  do  not  furnish  us  with  any  natural  bounda- 
ries for  the  principal  institutions,  whatever  the  socialist  Engels 
may  have  said  on  this  subject.  Under  such  conditions  as  these 
one  will  ask  if  the  outline  that  follows,  which  is  necessarily  only 
superficial  and  incomplete,  and  wherein  everything,  or  almost 
everything,  is  liable  to  be  contested  both  in  its  ensemble  and  as 
to  its  details,  will  not  do  more  harm  than  good.  We  have  not 
thought  so.  It  has  seemed  to  us  to  be  indispensable  to  give  a 
brief  statement  of  the  subject  and  the  problems  to  which  it  gives 
rise.  One  will  find  herein  in  their  natural  surroundings  general 
ideas  which  it  would  have  been  difficult  to  set  forth  or  to  make 
comprehensible  in  what  follows.  Furthermore,  it  is  impossible 
not  to  make  some  mention  of  primitive  institutions  when  we 
come  to  study  the  Celtic,^  Germanic  ^  and  Roman  institutions 
that  are  at  the  base  of  our  public  and  private  law. 

1  Sources.  —  Coesar,  "  Commentarii  de  Bello  Gallico,"  ed.  Holder,  1882. 
Did  Csesar  copy  Posidonius,  who  wrote  about  the  year  100  b.  c,  and  who 
had  visited  Gaul?  Did  Csesar  use  him  in  his  Book  VI,  and  were  his  asser- 
tions controlled  by  him?  Cf.  Mommsen,  "Hist.  Rom.,"  Alexandre's  trans- 
lation, VII,  app.  B,  p.  338;  Ccesar,  ed.  Krahner,  p.  30.  —  Pliny,  Pomponius 
Mela,  Ammian.  Marcell.,  etc.  —  "Extraits  des  Auteurs  Grecs  Concern,  la 
Geogr.  et  I'Hist.  des  Gaules,"  Cougny's  translation,  1878  ("Soc.  p.  I'Hist.  de 
France").  These  sources,  which  are  very  insufficient,  can  be  completed  only 
with  extreme  reserve  with  the  aid  of  documents  of  a  very  much  later  period 
which  we  have,  and  which  refer  to  the  Celts  of  Great  Britain  and  Ireland. 
No  one  any  longer  thinks  of  finding  the  law  of  the  Gauls  in  the  "Tres  An- 
cienne  Coutume  de  Bretagne." 

2  Sources.  —  Ccesar,  "De  Bello  Gallico,"  IV,  1  et  seq.;  VI,  21  et  seq.  (mid- 
dle of  the  first  century  b.  c).  —  Tacitus,  "Germania,"  ed.  Halm  (end  of  the 
first  century  A.  D.). — Strabo,  Pliny,  Dion  Cassius,  Ammian.  Marcell.,  etc. 

2 


Topic  l]  ORIGIN   OF   THE   FAMILY  [§  3 

§  2.  Theories  of  the  Evolutionists.  —  It  is  not  so  very  long 
since  it  was  thought  that  the  monogamous  family,  with  the  father 
as  its  head  and  the  wife  and  children  under  his  power,  was  as  old 
as  humanity  itself.  This  was  almost  an  article  of  belief.  Out- 
side of  Abraham  and  the  patriarchs  of  the  Bible  there  was  nothing 
but  corruption  and  decadence.  Two  learned  men,  —  Bachofen, 
a  professor  at  Bale,  and  the  Scotchman,  IM'Lennan,  introduced 
almost  simultaneously  the  transformist  idea  in  the  problem  deal- 
ing with  the  origin  of  the  family;  they  were  led  to  do  this  in  the 
most  diametrically  opposite  ways,  —  the  former  by  the  study  of 
the  ancient  myths,  the  latter  by  ethnography.  Since  the  time  of 
their  work  the  patriarchate  is  looked  upon  rather  as  a  perfected 
form  of  the  family  which  was  arrived  at  when  promiscuity  was 
abandoned  and  after  the  matriarchate  or  maternal  family  had 
been  passed  through.  There  are,  however,  many  learned  men  — 
for  example,  Sumner  Maine  —  who  look  upon  evolution  quite 
differently  and  give  as  the  origin  of  the  family  a  rough  sort 
of  patriarchate  which  became  altered  or  perfected  in  pass- 
ing through  various  periods.  The  tablets  of  clay  found  at  Tel- 
1-Sifr  about  forty  years  ago  proved  that  the  patriarchate 
family  existed  in  Chaldea  about  twenty-two  centuries  before 
our  era. 

§  3.  First  Stage.  Promiscuity  or  States  bordering  upon  it.  — 
Among  the  first  groups  of  human  beings  did  men  and  women 
live  in  a  confused  state  of  promiscuity?  Why  not?  We  must  not 
look  for  any  great  delicacy  of  feeling  among  cannibals,  such  as 
the  Scotch  were,  according  to  the  testimony  of  writers  of  ancient 
times,  and  as  several  savage  tribes  still  are.  Promiscuity  is  at- 
tested ^  —  at  least,  assuming  it  not  to  have  been  a  general  fact  — 
during  certain  periods  and  among  certain  peoples:  at  the  present 
time  among  the  inhabitants  of  the  mountains  in  India,  among 
the  Tasmanians  and  among  the  natives  of  Lower  California; 
formerly  among  the  Massagetes  and  the  Garamantes,  and  a 
short  time  ago  among  the  Zaporogue  Cossacks,  where  the  wo- 
men had  a  separate  encampment  and  belonged  to  all  the  men 
of  the  horde;  and,  finally,  according  to  old  traditions,  in  China, 

One  can  also,  but  only  to  a  limited  extent,  make  use  of  the  writers  after  the 
invasions,  of  barbarian  laws,  of  Scandinavian  laws  and  sagas,  and  of  the  old 
German  Customs:  Fustel  de  Coulfmges,  "L'Invasion  Germanique,"  1891, 
p.  226;  Mullenhoff,  "Germania  antiqua,"  1873,  gives  the  old  texts.  Bibl. 
in  Glasson,  "Hist,  du  Dr.  de  la  France,"  II,  and  in  Brunner,  "D.  Rechtsg." 
^  To  the  contrary,  Wesiermarck,  Starcke  and  other  recent  writers. 

3 


§  3]  INTRODUCTION  TO   PRIVATE   LAW  [Intro. 

in  Egypt,  and  in  Greece,  where  marriage  is  an  invention  of  legend- 
ary personages  such  as  Fo-Hi,  JNIenes,  and  Cecrops. 

Even  where  it  has  disappeared  promiscuity  has  left  its  traces: 
incestuous  unions,  sacred  prostitution,  hospitable  hetserism.  The 
Arabs,  says  Strabo,  even  have  intercourse  with  their  mothers. 
Unions  between  parents  and  children,  between  brothers  and 
sisters,  are  frequent  among  the  Indians  of  Brazil,  among  the 
Chippewas,  and  among  the  Karens  (India).  They  are  also  in- 
dulged in  among  the  Aleuts;  one  of  them  who  was  being  re- 
proached with  this  fact  justified  himself  by  replying:  The  otters 
do  this  thing!  There  are  countries  where  the  husband  leases, 
sells,  and  barters  his  wife  according  to  the  caprice  of  the  moment. 
The  Esquimaux  look  upon  it  as  a  duty  to  lend  their  wives  to 
guests  whom  they  receive  under  their  roof.  Finally,  Herodotus 
tells  us  that  it  was  an  act  of  piety  for  the  women  of  Babylon  to 
prostitute  themselves  at  certain  periods  in  the  Temple  of  Mylitta. 

Divorces  without  motive,  trial  marriages,  marriages  for  a  time, 
partial  marriages,  —  these  are  all  things  which  differ  very  little 
from  promiscuit3^^  In  Scotland  until  the  time  of  the  Reforma- 
tion a  young  man  and  a  young  woman  spent  a  year  together, 
after  which  they  either  married  or  separated,  according  as  they 
were  or  were  not  satisfied  with  this  trial.  "  jNIarriage  for  a  term, 
*  mota,'  was  customary  among  the  Arabs  before  the  time  of 
Mahomet;  it  is  still  frequent  in  Persia,  where  a  woman  may  be 
married  for  a  term  which  varies  from  one  hour  to  ninety  years." 
Marriage  for  a  year  was  customary  among  the  pagan  Irish: 
"  The  terms  were  fixed  in  the  same  way  as  for  a  lease;  the  union 
terminated  on  the  first  of  May  or  the  first  of  November  of  each 
year." 

§  4.  The  Consequences  of  Promiscuity.  —  Great  mortality 
among  the  children;  the  mother  could  not  raise  them  by  herself 
and  abandoned  or  else  killed  them.  Relatives  whom  chance  has 
united  and  an  accident  separated  will  scarcely  give  each  other  the 
support  and  assistance  which  are  necessary  in  case  of  illness  or 
when  old  age  comes  on.  There  is  no  such  thing  as  relationship, 
properly  speaking;  people  are  not  grouped  in  families,  but  classed 
by  generations;  one  would  say,  for  example,  that  he  was  the  son 
of  all  the  mature  men  of  the  tribe,  the  grandson  of  all  the  old  men, 

^  Is  not  the  right  of  the  lord  which  exists  in  various  societies  for  the  benefit 
of  the  poUtical  chiefs  or  priests  a  survival  of  the  right  which  belonged  for- 
merly to  the  community  over  all  the  women? 

4 


Topic  l]  ORIGIN   OF   THE   FAIWILY  [§  5 

and  the  father  of  all  the  children  of  the  tribe,  as  he  was  the  hus- 
band of  all  the  women.  This  system  of  relationship  by  classes 
(the  word  relationship  is  very  inappropriate)  is  found  among 
the  Malays,  the  Turanians  and  the  Redskins;  it  is  contrasted 
with  the  descriptive  system  of  the  Aryans  and  the  Semites,  that 
is  to  say,  a  system  which  we  make  use  of  and  which  is  based  upon 
a  recognition  of  individual  relationship. 

According  to  ]\Iorgan,  this  relationship  dates  from  a  period 
when  there  was  neither  marriage  nor  family.  To  each  method 
of  the  constitution  of  the  family  there  corresponds  a  different 
system  of  relationship.  But  the  constitution  of  the  family  becomes 
modified  more  rapidly  than  the  nomenclature  of  relationship; 
for  a  language  always  lags  behind  with  regard  to  institutions. 
The  nomenclature  of  relatives  may  thenceforth  show  us  the  ex- 
istence of  a  form  of  family  which  has  long  since  disappeared :  this 
is  so  with  regard  to  the  system  of  relationship  in  force  in  the 
Hawaiian  Islands.  It  does  not  correspond  to  the  modern  Ha- 
waiian family;  the  same  remark  applies  to  the  system  of  relation- 
ship in  use  among  the  Redskins;  but,  owing  to  a  very  curious 
peculiarity,  the  nomenclature  of  relatives  used  among  the  Red- 
skins corresponds  with  the  constitution  of  the  modern  Hawaiian 
family.  Morgan  deduces  from  this  clever  discovery  the  succes- 
sive existence  among  the  Redskins  of  three  forms  of  family: 
1st.  The  old  Hawaiian  family,  or,  rather,  absence  of  family,  with 
relationship  by  classes;  this  state  of  things  has  left  traces  in 
Hawaii,  but  not  among  the  Redskins.  2d.  The  modern  Hawaiian 
family  represented  among  the  Redskins,  —  not  in  their  law,  but 
in  their  language;  it  is  only  found  in  the  nomenclature  of  rela- 
tives. 3d.  The  modern  Redskin  family  to  which  the  system  of 
relationship  still  preserved  in  their  existing  language  no  longer 
corresponds.^ 

§  5.  Second  Stage.  Matriarchate.  —  Evolution  towards  the 
Maternal  Family.  —  In  a  promiscuous  society  the  mother  and  her 
descendants  have  a  tendency  to  form  a  natural  group,  an  associa- 
tion for  purposes  of  attack  and  defense,  and  production  in  com- 
mon.   The  father,  assuming  that  he  be  known,^  does  not  form  a 

1  There  are  sceptics  who  account  for  this  in  other  ways,  —  for  example, 
by  seeing  in  it  a  mere  consequence  of  poverty  of  ideas  and  poverty  of  lan- 
guage, and  the  pecuUaritics  of  th(!  systems  of  relationship  in  use  among 
primitive  peoples.    Cf.  "Ann6e  sociolog.,"  I,  311. 

^  Let  us  here  recall  the  notion  which  was  widespread  among  the  Egyp- 
tians and  the  Greeks  according  to  which  the  father  is  alone  creator  of  the 
child,  the  mother  only  nourishing  it. 

5 


§  5]  INTRODUCTION   TO    PRIVATE    LAW  [Intro. 

part  of  this  group;  he  is  connected  with  the  family  of  his  own 
mother.  At  the  same  time  that  the  maternal  family  is  being 
formed  promiscuity  is  being  restricted.  Marriage  is  prohibited 
within  the  group  between  relatives  descended  from  a  common 
mother.  Incest  is  forbidden.  From  what  motive?  Morgan  sees 
in  this  one  of  the  finest  applications  of  the  law  of  natural  selec- 
tion. Unions  between  near  relatives  result  only  in  children  in- 
ferior to  those  born  from  marriages  between  strangers;  the  latter 
became  more  numerous;  they  came  to  prohibit  the  former  under 
the  most  severe  penalties.^ 

§  6.  The  Prohibition  of  Incest,  which  was  at  first  probably  very 
restricted,  became  extended  and  led  to  the  marriage  by  groups, 
to  polyandry,  and  to  the  practice  of  exogamy .^ 

According  to  Morgan,  in  the  old  society  of  Hawaii  marriage  was 
prohibited  only  between  one  class  of  relatives  and  another,  be- 
tween ascendants  (actual  or  fictitious)  and  descendants.  In  the 
modern  Hawaiian  family  marriage  is  forbidden  even  between 
brothers  and  sisters  of  the  same  mother  and  between  cousins 
descended  from  the  same  mother. 

§  7.  Marriage  by  Groups  was  practised  in  Australia.  Among 
the  Negroes  of  Mount  Gambler  the  tribe  is  divided  into  two 
clans,  Krokis  and  Kumites;  every  man  who  is  a  Kroki  is  the  hus- 
band by  birth  of  every  woman  who  is  a  Kumite,  and  vice  versa. 
This  is  a  case  of  promiscuity,  but  of  limited  promiscuity,  because 
it  is  not  possible  for  a  union  to  exist  between  two  members  of  the 
Kroki  group  or  between  two  members  of  the  Kumite  group.  We 
must  assume  that  all  the  Krokis  are  relatives  descended  from  a 
common  mother,  and  that  it  is  the  same  with  regard  to  the  Ku- 
mites. The  existence  of  marriage  by  groups  has  been  revealed  to  us 
by  an  English  missionary,  the  Rev.  Mr.  Fison,  who  has  passed 

1  The  popular  notion  according  to  which  children  born  of  unions  between 
near  relatives  are  often  affected  by  serious  infirmities  (deaf  mutes,  blind, 
etc.)  is  rather  well  founded;  assuming  that  a  husband  and  wife  are  perfectly 
healthy,  their  children  will  resemble  them  and  will  be  well  formed,  whether 
their  father  and  mother  be  relatives  or  not;  but  this  assumption  is  defective 
in  its  basis;  a  perfect  state  of  health  is  rare;  each  one  has  his  weak  point;  as 
this  weak  point  will  be  the  same  in  the  husband  and  in  the  wife  when  the 
latter  are  near  relatives,  it  will  often  happen  that  something  that  was  only  a 
slight  imperfection  in  their  case  will  be  a  very  serious  defect  in  the  case  of 
their  children.  Conversely,  the  crossing  of  two  pure  races  will  give  a  mixed 
race  that  is  superior  to  each  of  the  former,  for  it  will  have  at  one  and  the 
same  time  qualities  of  both,  or,  at  least,  it  will  not  be  open  to  that  aggrava- 
tion, to  that  increase  as  the  square,  if  one  may  say  so,  of  the  causes  of  weak- 
ness in  the  parents. 

'  Unless  it  be  the  reverse,  and  the  prohibition  of  incest  be,  as  Durkheim 
pretends,  a  vestige  of  exogamy. 

6 


Topic  l]  ORIGIN  OF  THE   F.iMILY  [§  8 

many  years  in  Australia.  Another  missionary,  the  Rev.  iNIr. 
Mathew,  who  has  passed  just  as  long  a  time  in  that  country, 
assures  us  that  nothing  of  this  kind  ever  existed,  and  that  the 
Negroes  of  the  country  marry  one  another  just  as  do  the  white 
people  of  our  own  country.     Which  are  we  to  believe? 

§  8.  Polyandry  is  a  marriage  by  groups  on  a  small  scale:  each 
woman  has  several  husbands,  but  they  are  not  all  the  men  of  a 
tribe;  they  are  only  a  few  of  them,  —  ten  or  twelve,  for  example. 
Furthermore,  polyandry  and  polygamy  may  exist  at  one  and  the 
same  time;  one  husband  has  at  the  same  time  several  wives;  this 
comes  pretty  near  to  being  promiscuity.  We  will  give  as  an  ex- 
ample the  Nairs  of  Malabar  (who  are  comparatively  civilized) : 
"  The  spouses  have  a  perfect  understanding  as  to  the  method  of 
the  enjoyment  of  what  they  are  indeed  compelled  to  call  the  com- 
mon ownership.  The  first  husband  lives  with  his  wife  for  ten  days, 
after  which  he  gives  up  liis  place  to  another."  As  he  is  at  the 
same  time  the  husband  of  several  other  women,  when  he  leaves 
one  it  is  not  to  go  and  live  alone;  he  goes  to  the  others  succes- 
sively. Here  the  woman  must  necessarily  be  the  center  of  the 
family,  and  relationship  through  the  woman  is  the  only  kind  that 
is  recognized. 

From  polyandry  thus  understood  we  must  distinguish  fraternal 
polyandry,  which  is  only  one  of  the  forms  of  the  patriarchal  family 
with  relationship  through  the  men  and  the  authority  of  a  chief 
over  the  wife  and  children.  Brothers  living  together  take  only 
one  wife,  sometimes  from  motives  of  economy,  because  they  are 
poor  and  the  purchase  of  a  wife  for  each  one  of  them  is  a  luxury 
beyond  their  means  (Sparta);  at  other  times,  if  they  are  rich,  in 
order  that  they  may  not  become  poor  by  splitting  up  the  patri- 
mony of  their  family  (Ceylon).  It  is  especially  in  Asia  that  this 
form  of  polyandry  is  met  with;  it  is  practised  in  Tliibet,  among 
the  Todas  in  India;  and  it  was  formerly  practised  in  Arabia  and 
Persia,  and  Caesar  attested  that  in  his  time  it  was  in  use  among 
the  Bretons,  V,  14:  "  Uxores  habent  deni  duodenique  inter  se  com- 
munes, maxime  fratres  cum  fratribus  parentesque  cum  liberis; 
sed  si  qui  sunt  ex  his  nati  eorum  habentur  liberi  quo  primum  virgo 
quaeque  ducta  est."  The  eldest  brother  chooses  the  common 
wife,  for  he  is  the  first  one  to  arrive  at  the  age  of  puberty;  as  soon 
as  his  brothers  attain  manhood  they  become  the  husbands  of  their 
sister-in-law,  but  they  are  under  the  authority  of  their  eldest 
brother;  the  children  are  looked  upon  as  being  his. 

7 


§  9]  INTRODUCTION   TO    PRIVATE    LAW  [IntRO. 

§  9.  "  Among  the  Reddies  (India)  a  young  girl  of  from  six- 
teen to  twenty  marries  a  boy  who  is  scarce  five  or  six  years  old, 
and  sometimes  even  younger.  After  the  celebration  of  .the  mar- 
riage the  wife  goes  to  live  with  some  relative  of  her  husband,  often 
even  with  his  own  father.  The  latter  enjoys  all  the  conjugal 
rights,  and  if  children  are  born  of  this  union  they  are  legitimate 
and  are  looked  upon  as  being  those  of  the  husband,  whatever  his 
age  may  be.  When  this  husband  comes  to  the  time  of  the  real 
marriage  he  naturally  finds  his  wdfe  too  old,  and  he  takes  another 
one  under  the  very  conditions  which  he  had  to  undergo  himself." 
This  custom  makes  us  think  of  the  levirate  law,  of  the  substitu- 
tion of  a  ward,  by  which  the  Roman  "  paterfamilias  "  made  sure 
of  having  heirs  for  the  one  who  had  not  attained  puberty  by  mak- 
ing a  will  for  him.    In  this  case  he  provides  children  for  him. 

§  10.  Exogamy  is  marriage  outside  of  the  group  to  which  a 
person  belongs;  and  endogamy,  or  marriage  within  the  group,  is 
much  more  readily  accounted  for.  But  exogamy  seems  to  be  more 
widespread,  and  a  thing  which  is  still  more  singular  is  that  it 
is  prescribed  under  the  most  severe  penalties:  death  among  the 
Algonquins  and  Hottentots  and  in  the  New  Hebrides. 

M'Lennan  has  seen  in  this  custom  a  consequence  of  the  in- 
fanticide of  girls,  which  was  very  frequent  in  former  times.  It 
was  absolutely  necessary,  where  women  were  lacking,  to  take 
them  away  from  other  tribes.  The  extreme  poverty  of  certain 
groups  of  people  accounts  for  the  murder  of  girls  as  soon  as  they 
were  born.  Thus  among  the  Arabs  before  the  time  of  Mahomet 
they  were  looked  upon  as  useless  mouths  to  feed  and  w^ere  buried 
alive;  the  Koran  prohibited  this  practice  (6,  17,  81).  An  old  Toda 
used  to  say:  "  We  cannot  support  our  children;  to-day  each  one  of 
us  possesses  a  cloak;  formerly  we  had  only  one  for  the  whole 
family,  and  the  one  who  had  to  go  out  took  the  cloak;  the  others 
stayed  naked  in  the  house."  The  Khonds  of  India  had  made  a 
religious  precept  of  the  infanticide  of  girls.  In  the  Fiji  Islands 
they  were  killed  because  they  could  not  fight.  The  Association 
of  the  Areoi  in  the  Society  Islands  practised  both  abortion  and 
infanticide. 

The  murder  of  new-born  girls,  however  widespread  one  may 
suppose  it  to  be,  can  never  have  been  a  general  custom;  often,  on 
the  contrary,  girls  were  looked  upon  as  objects  of  great  value, 
because  it  was  permissible  to  sell  them  and  they  brought  a  very 
high  price.    M'Lennan's  remark,  moreover,  would  explain  why 

8 


Topic  l]  ORIGIN   OF  THE  FAMILY  [§  10 

exogamy  was  a  necessity  for  certain  tribes,  but  not  why  these 
same  tribes  so  strictly  prohibited  endogamy  when  the  girls  had 
escaped  from  the  infanticide  which  was  habitually  practised. 

According  to  Lubbock,  among  tribes  where  promiscuity  was 
practised  a  man  could  keep  for  himself  alone  the  woman 
whom  he  had  captured  in  war.  Unions  of  this  nature  had 
the  double  advantage  of  being  permanent  and  of  giving  birth 
to  a  mixed  race  and,  consequently,  one  which  was  superior.  In- 
dividual marriage  by  this  means  was  substituted  for  community 
of  wives,  just  as,  perhaps,  individual  ownership  was  substituted 
for  collective  ownership.  When  customs  became  less  harsh 
women  were  purchased  from  their  relatives;  actual  carrying  off 
ceased  to  be  necessary;  its  place  was  taken  by  the  symbolical  ab- 
duction. Under  this  name  it  always  formed  a  part  of  the  marriage 
ceremony,  in  order  that  it  might  be  perfectly  understood  that  the 
woman  became  the  exclusive  property  of  one  man.  This  system 
assumes  a  direct  passing  from  promiscuity  to  the  patriarchate,  and 
makes  the  matriarchate  an  anomah^  which  it  is  difficult  to  account 
for.  It  conflicts  with  the  fact  that  the  capture  of  women  was 
carried  out  nine  times  out  of  ten  by  a  troop,  and  not  by  an  in- 
dividual; and  monogamy  could  hardly  result  from  this.  Further- 
more, how  are  we  to  account  for  the  very  great  horror  which  was 
felt  for  endogamy?  One  can  readily  understand  that  exogamy 
should  have  been  preferred,  but  not  that  marriage  within  the 
group  should  have  been  prohibited  as  a  crime  under  pretext  that 
it  amounted  to  a  robbing  of  the  community. 

]\Iorgan's  theory  rests  upon  an  observation  which  is  perfectly 
correct:  It  is  not  the  tribe,  as  is  said  only  too  often,  which  is  ex- 
ogamous;  it  is  the  clans  of  which  the  tribe  is  composed;  the  tribe 
itself  is  endogamous;  people  marry  from  one  clan  into  another.  A 
prohibition  against  marrying  within  one's  own  clan  is  equivalent 
to  a  prohibition  against  marrying  one's  relatives,  because  the  clan 
is  a  group  of  relatives,  —  at  least,  fictitious  ones.  Thus  is  to  be 
accounted  for  the  severe  disapproval  with  which  endogamy  is 
looked  upon;  and  thus  also  is  to  be  accounted  for  the  practice  of 
exogamy  among  the  clans  of  a  maternal  family,  for  it  exists 
therein  and  is  not  met  with  merely  among  clans  of  a  patriarchal 
family,  as  would  be  required  according  to  Lubbock's  system,^ 

'  Durkheim  has  recently  suggested  another  explanation  for  exogamy.  The 
members  of  each  clan  consider  themselves  as  one  flesh  and  one  blood,  — 
the  flesh  and  the  blood  of  the  mystical  being  from  whom  they  all  descended 
("totem").    If  they  wish  to  adopt  a  stranger,  a  few  drops  of  the  family  blood 

9 


§  11]  DfTRODUCTION   TO    PRIVATE    Lu\W  [ixxno. 

§  11.  Organization  of  the  Maternal  Family.  Relationship 
through  the  Same  Mother.  —  Exogamy,  polyandry,  marriage  by 
groups,  prohibition  of  incest,  —  such  are  the  institutions  by 
means  of  which  promiscuity  was  discarded.  The  maternal  family 
or  matriarchate  was  the  logical  consequence  of  these;  it  is  more 
frequent  in  proportion  as  the  societies  among  which  it  is  found 
are  more  rudimentary.  It  only  includes  relatives  in  the  female 
line.^  Under  this  system  a  child  takes  the  name  of  its  mother 
and  belongs  exclusively  to  the  family  of  the  latter;  its  father 
forms  part  of  another  group,  the  group  consisting  of  his  own 
maternal  relatives.  The  Lycians,  Herodotus  tells  us,  take  their 
mother's  name;  they  leave  their  inheritance  to  their  daughters 
and  not  to  their  sons.  Among  the  Iberians,  according  to  Strabo,^ 
daughters  inherit  from  their  relatives  and  give  a  marriage  portion 
to  their  brothers.  It  was  the  same  among  the  Nairs  in  India, 
and  elsewhere.^  The  head  of  the  maternal  family  is  the  eldest 
brother  of  the  mother,  and  if  he  is  not  living  the  nearest  maternal 
relative.  The  mother  has  only  a  nominal  authority;  the  alleged 
domination  of  women,  the  "  gynseocracy "  devised  by  certain 
advanced  minds,  is  incomprehensible  at  a  period  of  violence,  a 
continual  struggle,  such  as  the  early  times  were."^  The  peculiar 
position  of  the  maternal  uncle,  the  rights  of  inheritance  of  women 
in  preference  to  men,  are  met  with  for  the  first  time  among  the 
Alemanni  at  the  time  of  Tacitus,  "  Germ.,"  20;  the  others,  in  cer- 

are  injected  into  his  veins.  It  is  in  this  blood  that  this  being  resides  who  is  at 
once  the  god  and  the  ancestor  of  the  clan.  Everything  he  touches  is  sacred, 
"tabu."  From  this  arises  the  rehgious  respect  wtiich  the  men  have  for  the 
women  of  their  o\vn  clan  after  they  attain  puberty.  Sexual  relations  are  only 
possible  between  one  clan  and  another,  because  each  has  a  different  god. 
Durkheim,  by  means  of  these  ideas  and  the  habits  that  they  have  given 
rise  to,  accounts  for  everything,  even  to  our  modern  customs.  The  hypoth- 
esis is  ingenious,  but  contrary  to  all  probability  and  not  proved  ("Ces- 
sante  causa,  cessat  .  .  ."). 

1  There  has  been  an  attempt  to  account  for  relationship  through  women 
by  seeing  in  it  a  means  of  distinguishing  between  the  children  of  various 
uives  in  the  polygamous  family. 

2  III,  165-  Cordier,  "La  Famille  chez  les  Basques"  ("R.  h.  Dr.,"  XIV); 
Etruscans  ('  Perrica  gnatus"),  Locrians;  Polybius,  XII,  5;  Mary  Kingslcy, 
"Travelsin  Western  Africa,"  1897;  "N.  R.  H.,"  1891,  302  (Celts);  "N.  R.  H.," 
1891,  301. 

'  Lnffitau,  "Moeurs  des  Sauvages  Americ,"  I,  69  (1721):  neither  the  hus- 
band nor  the  wife  leaves  the  family  in  order  to  found  a  separate  family  and 
cabin ;  each  one  remains  at  home ;  the  children  belong  to  their  mother  and  are 
looked  upon  as  belonging  to  the  family  and  the  cabin  of  the  mother  (and  not 
to  that  of  the  father).  In  the  cabin  of  the  wife  the  daughters  are  heiresses 
in  preference  to  the  males,  who  are  given  only  their  sustenance. 

*  Among  the  Natchez,  however,  the  sun-woman  had  a  right  of  Ufe  and 
death  over  the  children  (eighteenth  century). 

10 


Topic  l]  ORIGIN   OF   THE   F.AJMILY  [§13 

tain  manuscripts  of  the  Salic  Law  which  called  the  mother 
and  the  mother's  sister  to  the  succession,  Title  59.  The 
prohibition  of  adopting  one's  sister's  son  in  India,  the  prohibi- 
tion of  marriage  between  brothers  and  sisters  born  of  the 
same  mother  in  the  Athenian  law  are  yet  further  traces  of 
the  matriarchate  and  bear  witness,  contrary  to  Sumner  ]\Iaine's 
opinion,  that  the  Aryans  themselves  have  passed  through  this 
phase  of  evolution. 

§  12.  Third  Stage.  Patriarchate.  —  Why  and  how  is  the  transi- 
tion made  from  the  maternal  family  to  the  patriarchate,  which 
gave  authority  to  the  husband  over  his  wife  and  children,  and 
which  included  agnatic  relationship  or  relationship  through  the 
men  only?  ^  The  patriarchal  family  gave  rise  to  permanent  ties 
between  the  father  and  the  mother  and,  consequently,  to  closer 
ones;  tliis  is  an  advantage  for  the  couple  themselves  as  well  as 
for  the  children.  The  union  between  the  man  and  the  woman  — 
which  was  temporary  in  the  maternal  family  —  is  a  source  of 
trouble  for  the  latter;  the  husband  finds  himself  thrown  into  a 
conflict  with  the  relatives  of  his  wife  with  regard  to  her  and  his 
children.  These  inevitable  dissensions  were  one  reason  for  mak- 
ing this  group  an  inferior  one.  It  gave  way  to  the  patriarchate, 
which  ancestor  worship  came  to  fortify  by  giving  it  a  religious 
sanction.  Looked  upon  from  the  point  of  view  of  the  method  in 
which  it  was  formed  and  of  its  consequences,  this  form  of  the  fam- 
ily appears  as  an  application  of  the  right  of  ownership.  The  head 
of  the  family  has  over  his  wife  and  children  almost  the  same 
rights  as  a  master  over  his  slave,  and  like  a  master  he  is  respon- 
sible for  their  acts. 

§  13.  Formation  of  Marriage.  —  (I)  Abduction,  the  carrying 
off  of  women,  takes  place  sometimes  in  a  body,  like  the  legendary 
carrying  off  of  the  Sabine  women  (the  Picts,  ancient  Scandina- 
vians, Tribe  of  Benjamin,  etc.)  and  is  sometimes  individual  (Tas- 
mania, Carribee  Islands,  etc.).  The  law  of  Manu  makes  abduc- 
tion one  of  the  eight  forms  of  legal  marriage.  "  On  the  western 
coast  of  Greenland,"  says  Dr.  Nansen,  "  the  young  man  lies  in 
wait  for  the  young  girl,  takes  her  by  surprise,  seizes  her  by  the 

'  The  opposite  transition  from  the  patriarchate  to  the  matriarchate  is  with- 
out an  example  (?)  and  would  be  difficult  to  account  for.  One  might,  how- 
ever, see  in  it  an  extension  of  institutions  which,  like  marriage  "sine  manu" 
at  Rome,  leave  the  wife  under  the  authority  of  her  parents;  if  the  husband 
acquires  no  more  rights  over  the  children  than  over  his  wife's  possessions 
this  is  sufficient  to  make  it  a  form  of  purely  matriarchal  family.  —  M'Lennan, 
"Patriarchal  Theory,"  1885. 

11 


§  13]  INTRODUCTION   TO   PRIVATE   LAW  [ Intro. 

arm  or  the  neck  or  the  hair,  and  drags  her  towards  his  tent  in 
spite  of  her  cries  and  her  struggles."  The  Austrahans  proceed  in 
as  summary  a  manner;  they  carry  off  the  young  girl  after  having 
knocked  her  over  with  the  blow  of  a  club.^ 

The  imitation  of  abduction,  which  is  so  frequently  found  in 
marriage  ceremonies,  is  a  survival  of  the  primitive  law  in  which 
abductions  are  a  reality  (Sparta,  Rome,  etc.).  Among  the  Tar- 
tars the  young  girl  leaps  upon  a  horse;  the  young  man,  who 
has  already  paid  her  relatives  the  earnest  money  for  the  bargain, 
rushes  to  pursue  her;  and  if  he  does  not  please  the  betrothed  the 
chase  may  be  long  and  difficult.  Among  the  Araucanians  every 
young  girl  would  feel  herself  dishonored  if  an  energetic  fight  were 
not  made  to  keep  her  in  the  family. 

In  contrast  to  these  customs,  among  the  Kaffirs,  the  Moquis 
in  America,  and  the  Garros  in  India,  it  is  the  girls  who  make  pro- 
posals of  marriage  to  the  young  men.  "  If  the  advances  of  the 
woman  are  too  direct  the  frightened  young  man  flees  on  horse- 
back in  order  to  give  evidence  of  his  resistance.  He  is  at  once 
pursued  by  the  young  girls,  who  bring  him  back  a  captive  to  the 
one  whom  he  should  marry." 

§  14.  The  Same.  —  (II)  Purchase.  —  From  abduction  to  pur- 
chase there  is  but  a  step.  "  Among  the  Bodos  (India)  the  be- 
trothed man  carries  off  the  young  girl  with  every  appearance  of 
violence;  then  he  tenders  to  her  relatives  a  banquet  and  pres- 
ents in  conformity  with  his  position,  in  order  to  disarm  a  pre- 
tended anger."  This  portrays  what  took  place  almost  everywhere. 
When  there  was  an  abduction  the  relatives  of  the  outraged 
woman  sought  to  take  vengeance  for  the  injury  which  had  been 
sustained ;  the  abductor  appeased  them  by  offering  them  presents. 
Customary  tariffs  came  to  be  established.  The  composition  due 
by  every  abductor  was  paid  in  advance.  Among  a  great  num- 
ber of  peoples  the  father  disposes  of  his  daughters  in  the  same 
way  as  a  master  disposes  of  his  slaves,  without  consulting  them. 
In  India,  in  ancient  Greece,  and  even  in  Rome,  marriage  by  pur- 
chase ("  coemtio  ")  was  known.  Homer  speaks  of  the  "Trapdevot 
aX(f)€aL8oLai,"  of  young  girls,  who  bring  many  oxen  to  their  father 
because  the  betrothed  pay  the  purchase  price  in  cattle,  the  cur- 
rency of  that  time.     The  variations  in  the  price  of  this  sort  of 

'  Cf.  Tacitus,  "Ann.,"  I,  55  ("  Arminius  ").  In  Germany  the  custom  of  the 
"Brautlauf,"  "Brautfahrt,"  the  conducting  of  the  young  girl  by  a  numerous 
cortege  to  her  husband,  is  a  trace  of  the  abduction.  —  Cf.  as  to  the  Jews, 
"Judges,"  xxi, 

12 


Topic  l]  ORIGIN   OF  THE   FAJMILY  [§  lo 

merchandise  are  very  great.  "  A  rich  '  Baschkir  '  would  take 
pride  in  giving  3000  roubles  for  a  wife;  his  poor  neighbor  would 
obtain  one  for  a  load  of  wood  or  hay."  The  Papayos  of  New 
Mexico  sell  their  daughters  at  auction.  "  The  Damaras  are  very 
poor;  a  goat  seems  to  them  to  be  a  very  acceptable  equivalent  for 
one  of  their  daughters."  Wilson  tells  us  that  in  Uganda  a  father 
offered  him  his  daughter  for  a  pair  of  shoes  or  an  old  coat;  and 
even  this  was  very  dear,  for  the  usual  price  is  six  needles  and  a  box 
of  percussion  caps.^ 

The  marriage  takes  place  ordinarily  for  cash,  just  like  the  con- 
tracts of  primitive  times;  sometimes  for  credit,  but,  like  a  w4se 
merchant,  the  father  of  the  family  takes  precautions.  He  keeps 
certain  rights  over  his  daughter;  the  children  remain  his  property 
until  the  complete  payment  of  the  stipulated  price  (Islands  of 
the  Sonde,  IMakololo  in  Africa);  in  Unyoro  the  husband  pays  a 
cow  at  the  birth  of  each  child.  In  other  respects  he  is  compelled 
to  live  in  the  house  of  his  father-in-law  until  he  shall  have  en- 
tirely freed  himself.  If  he  has  no  money  or  cattle,  the  future 
husband  exchanges  his  sister  for  the  woman  whom  he  desires, 
becomes  the  slave  of  his  father-in-law  or  else  hires  out  his  services 
to  him.  Must  one  recall  the  history  of  Jacob  and  the  fourteen 
years  which  he  passed  in  the  house  of  Laban  in  order  to  marry 
Leah  and  Rachel,  the  daughters  of  the  latter?  The  Redskin  each 
day  gives,  sometimes  to  the  father  and  sometimes  to  the  maternal 
uncle  of  his  wife,  a  portion  of  his  game  or  fish. 

§  15.  Marriage  by  Servitude  or  by  letting  of  services  no  doubt 
leads  to  customs  such  as  those  of  Ireland  or  Sumatra  ("  ambe- 
lanak  "),  where  it  seems  to  be  the  wife  who  buys  her  husband;  the 
husband,  in  fact,  goes  into  the  house  of  his  wife,  or,  rather,  of  the 

1  According  to  the  Icelandic  law  the  future  spouse  pays  the  customary 
price,  1  mark  in  silver;  the  father  of  the  girl,  or,  if  he  is  not  living,  the  nearest 
male  relative,  becomes  a  warrantor  and  declares  that  the  girl  has  no  hidden 
defect  such  as  would  set  aside  the  sale  of  a  slave;  the  bargain  is  then  con- 
cluded by  the  blow  with  the  palm  of  the  hand  ("Handsal"),  without  its  being 
necessary  to  have  the  consent  of  the  woman.  The  marriage  is  completed 
within  a  year  by  the  handing  over  of  the  woman  to  her  future  husband: 
Dareste,  p.  349.  CJ.  ^'The  Anglo-Saxon  Laws":  "^thelb.,"  77,  31.  —  "The 
purchase  of  women  disappeared  at  an  early  date  in  the  Israelitish  legislation. 
Two  features  of  it,  however,  remained:  the  woman  must  be  given  by  those 
who  have  authority  over  her;  the  man  can  complete  the  marriage  by  giving 
a  sum  of  money  to  the  woman,  —  the  money  being  only  a  symbol.  Ordi- 
narily, the  marriage  is  concluded  by  the  conferring  of  a  marriage  portion 
that  is  given  by  the  husband  to  the  wife  ('khetouba');  from  that  time  on, 
the  adultery  of  the  woman  is  punished  as  though  she  were  married."  Da- 
rede,  "Etudes,"  p.  38;  Paturet,  "Condition  de  la  Femme  dans  I'ancienne 
Egypte,"  188G. 

13 


§  15]  INTRODUCTION   TO   PRIVATE   LAW  [ Intro. 

relatives  of  his  wife,  as  a  slave;  he  works  for  them  and  possesses 
nothing  of  his  own,  and  he  may  be  expelled. 

§  16.  EfEects  of  Marriage.  Status  of  the  Wife.  —  Whether  she 
be  carried  off  or  bought,  the  wife  is  in  a  situation  differing  little 
from  that  of  a  slave.  Body  and  possessions,  she  is  subject  to  her 
husband;  she  is  "in  manu,"  under  his  hand,  according  to  the 
Roman  expression.  She  cannot  possess  anything  of  her  own; 
everything  she  acquires  goes  to  her  husband.  He  has  over  her 
the  right  of  life  and  death,  and  after  his  death  religion  sometimes 
even  makes  it  the  duty  of  the  widow  to  burn  herself  with  the 
mortal  remains  of  her  husband  so  as  still  to  render  him  beyond 
the  tomb  the  ser\dces  which  she  carried  out  on  earth.  Among 
the  Afghans  the  widow  goes  to  the  heirs  of  the  deceased;  "  she 
forms  a  portion  of  their  inheritance,  and  if  she  remarries,  her 
second  husband  is  held  bound  to  indemnify  the  family  of  the 
first  husband  for  the  loss  which  it  has  sustained."  "In  Tasmania 
the  wife  is  treated  like  a  domestic  animal,  which  one  has  a  right 
to  beat,  to  wound,  to  kill,  and  even  to  eat.  In  the  Viti  Islands  a 
savage  named  Loti  savagely  devoured  his  wife,  after  having  had 
her  cooked  on  a  fire  which  he  had  compelled  her  to  light  herself." 
Under  such  conditions  as  these  the  right  of  divorce  must  of  neces- 
sity have  been  reserved  to  the  husband;  he  could  repudiate  his 
wife  at  his  pleasure  (excepting  that  he  would  incur  the  vengeance 
of  her  family,  who  might  keenly  resent  this  insult,  or  excepting 
that  he  might  pay  an  indemnity  in  advance  so  as  not  to  run  this 
risk). 

The  patriarchate  seems  like  a  system  which  treats  the  wife  with 
disfavor;  in  subjection  to  her  father  so  long  as  she  is  a  girl,  to  her 
husband  during  the  marriage,  and  after  his  death  to  her  children, 
she  only  changes  masters;  she  is,  to  use  the  Roman  term,  in  per- 
petual guardianship.^  Religion  and  morals  reacted  against  the 
severity  of  the  ancient  law;  thus,  according  to  the  barbarian  laws, 
the  husband  cannot  kill  his  wife  without  good  reason;  he  is  only 
authorized  to  sell  her  by  way  of  punishing  her  or  in  case  of  abso- 
lute necessity.  The  Gallic  law  even  gives  to  the  widow  a  sur- 
vivor's portion.^ 

*  Kovalewsky  and  other  learned  men  do  not  believe  that  this  subjection  of 
the  wife  existed.  But  the  facts  that  are  not  in  accord  with  this  state  of  in- 
feriority are  indications  of  a  new  law  in  process  of  formation  or  are  vestiges 
of  the  matriarchate. 

2  Matrimonial  System  of  the  Gauls.  —  The  right  of  Ufe  and  death  which 
Ccesar  recognized  the  head  of  the  Gallic  family  to  have  over  his  wife  as  well 

14 


Topic  l]  ORIGIN   OF   THE   FA]\nLY  [§17 

At  Rome  the  religious  marriage  of  the  patricians,  which  was 
characterized  by  the  "  confarreatio,"  an  offering  of  wheat  bread 
to  Jupiter,  and  by  the  participation  of  the  priests  of  the  official 
rehgion  of  the  State,  places  the  wife  "in  manu,"  but  makes  of  her 
the  mistress  of  the  house,  the  respected  matron,  who  attains  to 
the  same  dignity  as  her  husband  and  shares  in  his  honors.^  In 
time  marriage  without  "manus,"  a  sort  of  formal  union,  without 
formalities,  came  to  free  the  wife  from  the  authority  of  her  hus- 
band and  completely  emancipate  her. 

§  17.  The  Position  of  Children  is  determined  according  to  that 
of  the  mother;  if  they  are  born  of  a  slave,  they  themselves  are 
slaves.    The  paternal  power  is  absolute,  just  as  is  the  husband's 

as  his  children  (VI,  13,  19;  cf.  Gains,  "Comm.,"  I,  55,  paternal  power  among 
the  Galates)  does  not  agree  very  well  with  the  system  of  possessions  between 
the  spouses,  which  seems  to  place  the  husband  and  the  wife  upon  almost  an 
equal  footing:  Ccesar,  VI,  19.  The  wife  brings  her  husband  by  way  of  mar- 
riage portion  "pecuniae"  (sums  of  money  and  other  valuable  movables,  but 
not  land;  probably  the  land  still  belongs  to  the  family;  the  woman  has  no 
right  to  it);  the  husband  takes  out  of  his  own  possessions  other  "pecunise" 
of  equal  value  according  to  an  appraisement  (made  by  whom  and  how?). 
These  "pecunise"  —  those  of  the  husband  and  those  of  the  wife  —  are 
mingled  together  in  one  mass ;  only  one  reckoning  is  made,  and  the  profits  are 
kept;  the  survivor  has  all  of  this,  —  that  is,  the  capital  contributed  by  him- 
self and  that  contributed  by  his  wife,  together  with  the  profits.  Cf.  Roziere, 
"Rev.  de  Leg.,"  1874,  p.  135.  —  This  system  has  been  likened  to  one  of  those 
that  was  knowTi  to  the  Irish  law,  and  which  is  to  be  distinguished  by  the 
equality  of  the  share  contributed  by  each  spouse;  but  in  the  Irish  law  the 
position  of  the  spouses  is  equal ;  or,  at  least,  the  husband  cannot  make  certain 
kinds  of  contracts  without  the  consent  of  his  wife,  whereas  in  the  Gallic  law 
she  is  under  the  authority  of  her  husband.  CJ.  Collinet,  "R.  Celtique,"  1897, 
p.  322.  There  has  been  an  attempt  to  construe  this  as  the  conjugal  com- 
munity of  our  Customs  of  the  Middle  Ages,  but  in  this  case  there  is  no  ques- 
tion of  a  true  community  because  all  the  possessions  forming  a  single  mass 
are  always  conferred  upon  the  survivor,  and  because  in  no  case  can  the  heirs 
of  the  predeceased  spouse  make  any  claim  to  them.  If  one  wishes  to  under- 
stand this  system  one  must  assume  two  things  that  Caesar  does  not  tell  us: 
1st.  The  share  contributed  by  the  wife,  and  also  that  contributed  by  the  hus- 
band, are  rather  small;  the  wife's  because  she  has  few  rights  over  the  posses- 
sions of  her  family,  the  husband's  because  it  is  no  doubt  the  purchase  price 
which  he  paid  to  the  relatives  of  the  wife  that  has  been  transformed  into  an 
antenuptial  gift  for  the  exclusive  benefit  of  the  latter.  2d.  The  profits  realized 
during  the  marriage  are  added  to  the  mass  and  go  with  it.  The  preservation 
of  the  issues  in  kind  is  physicallv  impossible.  Cf.,  on  this  point,  Humhert, 
"Rev.  hist,  de  Dr."  IV,  517;  D.,  "de  pact,  dotal.,"  23,  4;  9,  3;  D.,  "de  j.  dot.," 
23,  3.  The  husband  disposes  of  the  interest  on  the  price  of  the  issues  sold;  he 
keeps  this  price.  D'Arbois  de  Jubainville,  "Rev.  crit.  d'Hist.,"  1879,  p.  2:  the 
marriage  portion  consisted  in  herds,  and  the  young  were  raised  until  they 
attained  the  age  when  they  were  most  valuable  for  slaughtering  purposes. 

'  To  judge  from  the  information  which  has  been  furnished  by  comparative 
jurisprudence,  and  according  to  the  custom  of  betrothals  ("sponsalia")  and 
the  "deductio  mulieris  in  domum  mariti"  ("rapi  simulatur  virgo,"  says 
Festus),  it  is  very  unlikely  that  the  "  conf arreatio "  was  the  most  ancient 
form  of  marriage  at  Rome.  Cf.,  however,  to  the  contrary,  Marquardt  and 
Mommsen,  "Man.  des  Ant.  Rom.,"  French  translation  XIV,  40,  76;  Girard, 
"Man.  de  Dr.  Rom.,"  p.  145;  Labbe,  "N.  R.  H.,"  1887. 

15 


§  17]  INTRODUCTION   TO   PRIVATE   LAW  [  Intro. 

power.  It  is  for  their  father  to  decide  whether  they  shall  be 
brought  up  or  not;  infanticide,  or  the  exposure  of  new-born  chil- 
dren, which  is  so  frequent  in  the  old  traditions,  is  only  the  exer- 
cising of  a  right.  The  father  may  strike  his  children,  sell  them,  or 
put  them  to  death.^  He  gives  his  daughters  in  marriage  upon 
receiving  a  sum  of  money;  they  are  bought  from  him.  Neither 
sons  nor  daughters  have  a  right  to  have  any  belongings  of  their 
own;  everything  they  acquire  belongs  to  the  father.  At  Rome 
the  "patria  potestas,"  which  on  principle  lasted  during  the  entire 
life  of  the  father,  was  adhered  to  through  the  centuries  with  this 
barbarian  harshness.  However,  as  children  were  members  of  the 
State,  at  an  age  when  they  were  capable  of  bearing  arms  they 
were  emancipated,  from  the  political  point  of  view.  In  Germania 
military  coming  of  age  perhaps  meant  both  political  and  civil 
emancipation  at  one  and  the  same  time. 

§  18.  Levirate.  —  All  children  born  during  the  marriage  came 
under  this  power;  they  belonged  to  the  husband  even  though 
they  were  not  his  issue.  This  is  shown  us  by  the  institutions  of 
the  "  Niyoga  "  in  India  and  the  Levirate  among  the  Hebrews.  If 
a  man  dies  without  children  his  brother  should  "raise  a  posterity 
for  him  "  and  for  this  purpose  should  marry  his  widow;  this 
brother  who  becomes  a  substitute  for  the  husband  is  the  levirate; 
a  son  of  the  levirate  is  legally  the  son  of  the  deceased,  because 
even  after  the  latter's  death  his  wife  and  children  are  still  virtu- 
ally under  his  power;  he  lives  a  hidden  life  beyond  the  tomb. 
The  worship  of  ancestors  causes  the  levirate  to  become  a  pious 
duty.  It  is  indispensable  that  the  dead  should  have  descendants 
in  order  to  receive  the  worship  which  is  due  him.  The  "niyoga"  is 
only  a  levirate  practised  during  the  lifetime  of  the  husband  when 
he  has  no  children.  —  "  The  law  of  Sparta  allow^ed  a  husband 
who  was  impotent  to  give  up  his  wife  to  a  younger  and  stronger 
man."  "At  Athens,  if  the  relative  who  was  compelled  by  the 
law  to  marry  the  widow  of  his  near  relative  was  not  capable  of 
fulfilling  the  conjugal  duties,  she  could  demand  to  have  another 
man  of  the  family  substituted  for  him."  ^ 

§  19.  The  Recognition  of  Paternity  did  not  present  any  diffi- 
culties in  societies  of  the  patriarchal  type.  The  husband  treats 
as  his  own  all  children  born  of  his  wife,  just  as  the  owner  does 

1  Tacitus,  "Ann.,"  IV,  72;  "L.  Baiuwar.,"  I,  10;  Capitulary,  I,  187,  1.  In 
the  old  Hungarian  law  the  wife  and  children  could  be  sold  for  the  crime  of 
the  husband  and  father. 

2  M'Lennan  sees  in  this  traces  of  polyandry. 

16 


Topic  l]  ORIGIN  OF  THE  FMIILY  [§20 

with  respect  to  the  increase  of  his  flocks.  If  he  has  any  doubts 
as  to  their  legitimacy  he  can  expose  them,  kill  them,  or  cause 
them  to  be  sold  as  slaves.  But  in  certain  societies  where  maternal 
institutions  obtained  more  of  a  foothold,  the  husband,  in  order 
thoroughly  to  establish  his  rights  over  his  wife's  child,  has  recourse 
to  a  fiction;  he  simulates  a  confinement,  stays  in  bed,  fasts,  and 
receives  the  congratulations  of  his  neighbors  upon  his  happy 
delivery.  This  custom,  the  most  extraordinary  of  all,  bears  the 
name  of  "  couvade  " ;  it  has  existed  among  the  Iberians,^  in  Corsica, 
among  the  Tartars,  in  Brazil  and  elsewhere.  Starcke  sees  in  this 
only  a  magic  proceeding  in  order  to  give  the  new-born  the  endur- 
ance and  strength  to  withstand  the  fasting  and  abstinence  which 
the  father  imposed  upon  himself;  if  this  were  the  only  reason  for 
it,  what  would  be  the  use  of  simulating  a  confinement? 

§  20.  Adultery.  —  The  punishment  for  the  adultery  of  the 
wife  is  left  to  the  discretion  of  the  husband,  because  he  has  over 
her  the  right  of  life  and  death.  It  is  at  least  expulsion  from  the 
conjugal  domicile.  It  may  be  death,  as  among  the  Hebrews, 
where  she  was  stoned.  In  ancient  Egypt  her  nose  was  cut  off. 
The  Greeks  tore  off  her  ears.  The  Abyssinians  were  satisfied 
with  shaving  her  head.  In  Thibet  the  matter  was  arranged  by 
the  payment  of  a  fine,  which  was  calmly  divided  among  the 
various  husbands  of  the  wife.  According  to  the  Germanic  cus- 
tom,2  the  guilty  wife,  naked  and  with  her  hair  shaved,  was  driven 
out  of  the  house  in  the  presence  of  the  relatives  by  her  husband, 
who  pursued  her  through  the  village  beating  her.  This  penalty, 
which  became  the  running  of  the  gauntlet  in  the  Customs  of  the 
jMiddle  Ages,  had  not  merely  a  disgraceful  character;  originally, 
it  meant,  no  doubt,  final  expulsion  from  the  house  and  from  the 
village;  this  was  really  in  the  majority  of  cases  the  penalty  of 
death  or  slavery,  for  once  outside  the  circle  of  her  natural  pro- 
tectors the  woman  lost  her  life  or  her  liberty. 

The  infidelity  of  the  husband  is  far  from  having  similar  con- 
sequences. The  woman  could  not  complain  of  it.  We  are  not 
unaware  of  how  free  morals  were  in  Greece.  In  Rome,  Cato  said : 
If  you  take  your  wife  unawares  in  the  flagrant  offense  of  adultery 
you  may  kill  her  with  impunity;  if  she  takes  you  by  surprise  she 
would  not  even  dare  to  raise  a  finger  against  you,  and  she  has  no 

1  Slraho,  III,  165;  Cordier,  "La  Famille  chez  les  Basques,"  "R.  h.  Dr.," 
XIV;  Tijlor,  "Primitive  Culture,"  French  translation,  1877. 
•2  Tacitus,  "Germ.,"  19. 

17 


§  20]  INTRODUCTION   TO    PRIVATE    LAW  [Intro, 

right  to  do  so.^  In  certain  localities  they  even  say  that  women 
were  punished  for  not  having  known  how  to  please  their  husbands 
and  keep  them  faithful. 

§21.  Agnatic  Relationship.  —  In  the  matriarchate  the  only 
relationship  that  exists  is  that  in  the  female  line;  in  the  patriar- 
chate, that  in  the  male  line.  The  family  constitutes  a  shut-in  group 
under  the  power  of  a  head  such  as  the  Roman  "paterfamilias  "; 
relationship  is  the  bond  which  unites  the  members  of  the  family 
with  this  head  and  with  one  another;  it  is  the  result  less  of  com- 
munity of  blood  than  of  the  authority  of  the  head,  and,  as  the 
women  are  never  at  the  head  of  the  family,  relationship  never 
comes  from  them.  Thus  one  is  the  agnate  of  the  brother  of  one's 
father,  and  not  of  the  brother  of  one's  mother.  Descent  from  the 
same  father  (agnation)  is  lost  for  anybody  who  goes  out  of  the 
family;  for  example,  for  the  daughter  who  in  marrying  passes 
under  the  "manus"  of  her  husband  and  escapes  the  power  of 
her  father,  or  for  the  son  given  in  adoption.  One  could  not  be- 
long to  two  families  at  one  and  the  same  time  any  more  than  one 
could  have  two  fatherlands.  At  the  death  of  the  head  his  children 
become  "sui  juris  ";  the  one  "domus  "  is  replaced  by  several  new 
ones.  The  change  which  then  takes  place  does  not  break  the 
agnation;  it  still  exists  between  all  those  who  have  been  under 
the  same  power,  or  would  have  been  so  if  the  "paterfamilias  " 
had  lived  indefinitely. 

At  Rome  this  relationship  in  the  family  line  was  called  Agnation 
(among  the  Slavs  of  the  South  it  was  called  relationship  by  the 
main  blood);  this  was  contrasted  with  natural  relationship,  or 
Cognation  2  (relationship  by  the  inferior  blood  among  the  Slavs 
of  the  South)  which  included  the  relatives  in  the  female  line  as 
well  as  the  relatives  in  the  male  line,  and  which  is  relationship  as 
we  understand  it,  derived  from  the  fact  of  consanguinity.  The 
Roman  and  unilateral  relationship  preceded  the  double  relation- 
ship of  modern  law.  The  effects  of  relationship  —  which  were 
mutual  protection  against  attack  and  mutual  defense,  the  duty 
of  avenging  offenses  against  a  relative,  impediments  to  mar- 
riage, rights  of  guardianship  and  succession,  and  the  right  to 
the  name  and  to  be  worshiped  —  resulted  only  among  ag- 
nates:  thus  the   Ossetes  allowed   marriage   with   the   mother's 

1  Aulus  GelUus,  X,  23. 

2  However,  the  Roman  law  admits  impediments  to  marriage  between 

cognates. 

18 


Topic  l]  ORIGIN   OF   THE   FAMILY  [§  22 

sister  and  looked  upon  it  as  being  disgraceful  if  it  were  with 
the  father's  sister.^ 

§  22.  Systems  of  Succession.  —  One  of  the  most  important 
consequences  of  relationship  is  the  conferring  of  rights  of  succes- 
sion. Under  the  patriarchal  system  succession  is  organized  in 
various  ways.  If  the  family  community  survives  its  head,  the 
eldest  male  member  of  the  community  is  chosen  by  the  others  to 
succeed;  this  would  ordinarily  be  the  eldest  brother  of  the  de- 
ceased or  a  near  relative,  because  he  is  of  suitable  age  and  con- 
stitutes a  military  chief  already  appointed;  he  is  already,  during 
the  lifetime  of  the  head  whose  place  he  must  take,  the  latter's 
natural  assistant  (tanistry  in  Ireland).^  This  seniority,  how- 
ever, made  way  for  primogeniture,  properly  so  called,  or  right  of 
primogeniture,  by  virtue  of  which  the  eldest  son  of  the  deceased 
excludes  both  his  brothers  and  his  uncles.  The  struggle  between 
the  uncle  and  the  nephew  was,  it  would  seem,  keen  and  long. 
If  the  family  should  be  dissolved  and  each  one  of  its  members 
should  form  a  separate  household,  the  right  of  primogeniture  was 
also  practised.  But  it  was  not  a  rare  thing  to  find  the  youngest 
of  the  sons  being  favored  and  receiving  the  paternal  house;  this  is 
the  right  of  "juveigneurie"  or  of  "mainete"  (minority),^  the  very 

1  The  Irish  Laws,  which  recognize  agnation  or  relationship  only  in  the 
male  line,  distinguish  between  four  groups  of  relatives  in  each  one  of  which 
relationship  ceases  with  the  fourth  generation  (as  in  the  Athenian  law). 
These  groups  or  "parenteles,"  which  are  analogous  to  those  whose  existence 
is  ordinarily  admitted  in  the  Germanic  law,  form  concentric  circles,  as  is  seen 
from  the  following  table: 


1.  Great  grandfather.  —  Relationship 

of  the  3d  phalanx  ("indfine")- 

2.  Great  uncle. 

3.  Great  uncle's  son. 

4.  Great  uncle's  grandson. 

1.  Grandfather.    —    Relationship   of 

the  2d  phalanx  ("  iarfine  ") 

2.  Uncle. 

3.  Uncle's  son. 

4.  Uncle's  grandson. 


1.  Father.  —  Relationship  of  the  1st 
phalanx  ("derbhfine"). 

2.  Brother. 

3.  Brother's  son. 

4.  Brother's  grandson. 

1.  The   deceased.  —  Relationship   of 
the  hand  ("  geilfine") 

2.  Son. 

3.  Grandson. 

4.  Great  grandson. 

5.  Great  grandson's  son. 

The  inheritance  was  conferred  upon  the  first  group  of  relatives  of  the  deceased 
("geilfine");  and  if  this  group  did  not  exist,  then  upon  the  three  others  in  the 
following  proportion:  %  to  the  2d:  %  of  34  to  the  3d;  J<i  of  34^  to  the  4th. 

2  "  Tanistry,"  an  English  word  derived  from  the  Irish  word,  "  tanist,"  second 
in  rank  in  the  kingdom,  the  heir  presumptive  of  the  king.  When  a  chief  was 
elected  there  was  joined  with  him  as  his  eventual  heir  the  eldest  of  his  broth- 
ers; by  this  means  the  disadvantages  resulting  from  a  vacancy  in  the  sover- 
eign power  or  from  the  youth  of  the  heir  were  avoided.  Nephews  found 
themselves  excluded  by  their  uncles;  there  was  no  partition;  the  "tanist" 
took  everything:  De  Valroger,  p.  537;  Sumner  Maine,  "Instit.  primit.,"p.  230; 
"Etudes  sur  I'anc.  Droit,"  p.  169. 

*  The  right  of  younger  sons  existed  in  the  country  of  Wales;  in  England 

19 


§  22]  INTRODUCTION   TO    PRIVATE    LAW  [IntrO. 

opposite  of  the  right  of  primogeniture.^  Sometimes  also  an  equal 
partition  takes  place  between  the  sons,  and  when  this  is  so  it  is 
similar  to  the  old  custom  of  Irish  gavelkind : '  when  a  man  dies  his 
inheritance  is  not  divided  among  his  sons,  but  the  chief  of  the 
"seven,"  or  clan,  to  which  he  belongs,  takes  the  succession  in  order 
to  make  a  new  partition  of  all  the  lands  belonging  to  the  "seven," 
and  gives  a  portion  to  each  one  according  to  his  age.  Whatever 
may  have  been  the  system  of  succession,  the  exclusion  of  women 
is  one  of  its  essential  rules.  The  Salic  Law  in  its  most  celebrated 
provisions  confers  the  land  upon  the  heirs  of  the  male  sex 
exclusively. 

§  23.  Ancestor  Worship,  which  is  closely  connected  with  the 
patriarchate,  completed  the  organization  of  the  family  by  making 
of  its  head  a  god  after  his  death,  just  as  he  had  been  a  master 
during  his  life.  It  is  the  duty  of  his  descendants  to  render  him 
funeral  honors  and  the  customary  worship.  And  it  is  a  great 
misfortune  not  to  have  any  posterity.  Celibacy  is  a  crime,  the 
repudiation  of  a  barren  wife  a  duty  of  conscience,  adultery  at  the 
same  time  a  sacrilege  and  a  robbery,  —  a  sacrilege  because  it 
creates  a  risk  of  introducing  strangers  into  the  family,  and  a 
robbery  because  the  wife  is  almost  a  chattel  of  her  husband. 
Adoption  is  looked  upon  by  a  pious  man  as  a  last  resource  whereby 
he  may  prevent  the  extinction  of  his  family.^ 

§  24.  Family  Communities.  —  The  modern  family  is  derived 
from  the  old  patriarchal  family;  but  the  latter  for  a  long  time  con- 
sisted of  a  large  group  of  persons,  whereas  to-day  the  family  is 
formed  of  one  couple  and  the  children  who  are  their  issue.  Let 
us  endeavor  to  get  some  idea  of  these  family  communities  of 

(borough  English),  and  in  Brittany,  according  to  a  few  local  Customs,  such  as 
the  Custom  of  Rohan:  Bourdot  de  Richebourg,  IV,  408.  It  is  also  met  with  in 
many  other  places,  —  for  example,  in  certain  of  the  Swiss  customs. 

^  As  to  the  right  of  primogeniture  cf.  infra.  According  to  Maine  it  was 
derived  from  the  tanistry  system. 

2  Sumner  Maine,  "Etudes  sur  I'ancien  Droit,"  p.  231;  De  Valroger,  p.  527. 
Report  of  Sir  John  Davis,  attorney-general  at  the  beginning  of  the  seven- 
teenth century,  on  the  Irish  custom  of  gavelkind  cited  by  Laveleye,  "De  la 
Propriete,"  4th  ed.  p.  291.  The  gavelkind  of  the  County  of  Kent,  or  equal 
partition  between  all  the  sons,  seems  to  be  connected  with  the  Irish  gavelkind. 

3  In  Ireland,  among  the  Scandinavians,  and  among  the  Ossetes,  it  is 
customary  for  the  father  to  have  his  son  brought  up  in  some  family  other 
than  his  own,  or  by  some  one  other  than  himself.  There  exists  between  the 
child  and  the  person  bringing  him  up  a  tie  of  relationship  ("Fosterage"  in 
Ireland).  In  many  places  the  formalities  of  adoption  imitate  birth.  Dio- 
dorus  tells  us  that  Juno  held  Hercules  against  her  breast  and  let  him  slide  to 
the  ground  through  her  garments,  "which  is  still  done  by  the  barbarians 
when  they  %\-ish  to  adopt  a  child  ":  Michelet,  "Origines  du  Dr.  Fr.,"  p.  10. 

20 


Topic  l]  ORIGIN   OF  THE   FAMILY  [§  24 

former  times:  "domus,"  fire,  "maisonnee,"  "Hausgenossen- 
schaft,"^  joint-family,  which  must  not  be  confused  vnth.  the  more 
extensive  group  of  the  "gens,"  clan,  or  "Sippe." 

The  ancient  family  communities  were  associations  of  relatives 
giving  one  another  support  and  assistance  under  all  circumstances, 
for  attack  and  for  defense,  for  military  expeditions  as  well  as  for 
farming.  They  took  the  place  of  the  State,  carried  out  police 
duties  within  themselves,  organized  a  guardianship  for  the  weak, 
the  women  and  orphans,  were  responsible  for  the  acts  of  their 
members  outside  of  the  community,  dispensed  charity  and  managed 
the  household  affairs  prudently.  We  must  think  of  them  as  mod- 
eled after  the  Servian  "zadruga"^  to  the  number  of  twenty  indi- 
viduals, sometimes  more,  all  relatives  or  else  persons  who  had 
become  members  of  the  family  by  marriage  or  adoption,  with  a 
chosen  head  ("domacin,"  "gospodar")  from  among  the  oldest 
and  the  married  people.  His  wife,  the  "domacica,"  directs  the 
household.  The  chief  is,  outside  of  the  community,  the  represen- 
tative of  the  family;  he  negotiates  with  third  parties,  he  takes 
part  in  the  political  assemblies  (such  as  municipal  councils),  he 
is  in  touch  with  the  religious  and  political  authorities,  and  he  is 
responsible  for  the  payment  of  taxes.  Within  the  community  he 
exercises  a  disciplinary  authority  over  the  members  of  the  family, 
he  enjoys  certain  honors  (they  rise  when  he  enters,  he  distributes 
to  each  one  a  share  of  the  food),  he  manages  the  land  belonging 
to  the  community,  designates  the  work  to  be  done  by  each  one, 
keeps  the  funds,  and  provides  for  the  needs  of  the  community. 
The  family  assembly  ("skuptschina"),  where  all  the  members 
have  a  vote,  is  consulted  upon  serious  questions  (borrowings,  etc.), 
receives  the  accounts  of  the  chief,  decides  upon  marriages  within 
the  community,  brings  in  new  members  and  excludes  others,  dis- 
charges the  chief  and  prescribes  partition.  The  members  of  the 
community  have  a  right  to  lodging,  food  and  clothing;  those 
who  are  males  and  have  attained  majority  have  a  vote  in  the 
family  council;  they  may  forsake  the  community,  but  they  must 

1  "Genealogia,"  "fara"  among  the  Germans,  "consorteriae"  in  Tus- 
cany, "trev"  in  Gaul,  "fine"  in  Ireland,  and  "verv"  in  Russia:  Kovalewsky, 
"N.  R.  H.,"  1896. 

^  Described  by  Bogisic  among  the  Shivs  of  the  South.  Cf.  Kovalewsky 
with  regard  to  the  Ossetes  of  the  Caucasus.  In  the  sixteenth  century  Guy 
Coquille  gives  a  similar  table  of  the  servile  communities  in  Nivernais  ("Quest, 
sur  les  Coutumes,"  no.  58);  Dareate,  p.  244.  The  "mazades"  ("mansata," 
manse)  which  have  been  studied  by  M.  Bauby  in  Languedoc,  are  only  a 
variation  of  these  ("Rec.  de  I'Acad.  de  Lcgisl.  de  Toulouse,"  1885,  p.  69). 

21 


§  24]  INTRODUCTION   TO    PRIVATE    L.\W  [IntrO. 

obtain  the  consent  of  the  chief  in  order  temporarily  to  absent 
themselves  from  it.  The  immovable  belongings  of  the  community 
are  inalienable,  indivisible  and  cannot  be  disposed  of  by  will;  the 
women  can  make  no  claim  to  them  and  have  to  content  them- 
selves with  a  marriage  portion  consisting  of  movables;  the  men 
have  as  their  absolute  property  only  a  portion  of  their  earnings 
("peculium"). 

This  primitive  type  of  the  family  community  has  left  traces 
everywhere.  It  is  as  a  relic  of  the  primitive  community  that  the 
Roman  law  designates  children  as  its  heirs.  The  Cretan  law  of 
Gortyne  declares  that  the  father  is  master  of  the  children  and  of 
the  property,  and  that  it  rests  with  him  as  to  how  partition  shall 
be  made.  This  recalls  the  parable  of  the  prodigal  son:  "And  the 
youngest  of  the  two  children  said  to  his  father,  'My  father,  give 
me  the  share  of  the  possessions  which  is  mine';  and  the  father 
divided  it  with  them."  It  is  very  evident  that  here  we  are  not 
concerned  with  a  share  of  an  inheritance,  but  with  a  share  of  a 
community.^ 

§  25.  Dissolution  of  Family  Communities.  Evolution  towards 
the  Simple  Family.  —  How  did  the  family  composed  of  associates 
become  dissolved  to  make  way  for  the  elementary  family  com- 
posed only  of  the  father,  the  mother  and  the  children?  It  was 
because,  though  a  force,  a  defensive  arrangement,  which  was 
necessary  in  those  troublous  times,  it  was  also  a  hindrance  and  a 
tyranny  for  the  individual,  —  a  tyranny  in  every  instance,  an  an- 
noyance under  all  circumstances,  the  most  hateful  of  servitudes; 
one  only  submitted  to  it  very  reluctantly  because  one  could  find 
no  other  means  of  obtaining  the  security  which  was  indispensable. 
Just  as  soon  as  the  State  gained  strength  and  its  protection  be- 
came sufficiently  effective  to  enable  one  to  dispense  with  the  pro- 
tection of  the  household  the  individual  became  detached  from 
the  group  and  formed  an  independent  family. 

§  26.  Polygamy.  —  The  family  has  thus  evolved  from  a  com- 
munity which  became  more  and  more  extended  towards  a  re- 
stricted group  including  only  the  father  and  mother  with  their 
descendants.  Monogamy  has  been  the  last  step  of  progress  in  this 
direction;  but,  even  in  our  day,  polygamy  is  still  practised  among 
many  people.    When  a  man  procures  wives  by  purchasing  them 

'  After  the  death  of  the  father  the  children  sometimes  remain  in  joint 
possession:  "Rotharis,"  167;  Capitulary  of  818-19,  c.  6  (I,  282).  On  the 
right  of  inheritance  cj.  injra. 

22 


Topic  l]  ORIGIN   OF   THE   F.UIILY  [§27 

or  carrying  them  off,  if  he  has  sufficient  wealth  and  power,  he  will 
hardly  limit  himself  to  only  one.  The  prejudices  tend  to  foster 
polygamy  (such  as  the  one  which  compels  a  man  to  live  apart 
from  his  wife  as  soon  as  pregnancy  is  disclosed,  and  even  so  long 
as  the  child  has  not  been  weaned;  that  is  to  say,  often  for  three 
or  four  years);  and  motives  of  an  economical  nature  have  the 
same  tendency;  in  women  are  seen  above  all,  useful  workers, 
workers  who  are  all  the  more  valuable  because  they  receive  no 
salaries.  In  Germania,  according  to  what  Tacitus  tells  us,  the 
man  fought,  the  woman  worked.  "If  a  Redskin  succeeds  in  ac- 
quiring five  or  six  wives  his  position  becomes  quite  important, 
their  work  being  profitable  to  the  family  in  other  ways  than  hunt- 
ing, which  is  the  only  occupation  which  the  husband  will  consent 
to  indulge  in." 

The  more  numerous  the  wives,  the  less  work  does  each  one  of 
them  have  to  do.  Therefore  it  is  not  a  rare  thing  to  find  them 
quarreling  with  their  husband  in  order  to  drive  him  to  polygamy. 
"Livingstone  related  before  the  Makololo  women  that  in  England 
a  man  could  marry  only  one  wife,  and  that  he  was  held  bound  to 
be  absolutely  faithful  to  her.  The  unanimous  reply  to  this  was 
that  one  was  very  unfortunate  to  live  in  such  a  country  as  that." 

Other  causes  of  polygamy  are  premature  old  age  and  barren- 
ness of  savage  women  as  a  result  of  excessive  labor,  privation  and 
bad  treatment.  The  chiefs  have  several  wives  so  as  to  give  more 
brilliancy  to  their  suites,  or  in  order  to  procure  themselves  alli- 
ances; so  in  the  "  Germania"  of  Tacitus,  18:  "The  African  and  the 
inhabitant  of  India  are  as  proud  of  the  number  of  their  wives  as 
we  would  be  of  the  number  of  horses  in  our  stables."  Finally,  if 
wars  are  continually  carried  on  and  all  the  men  are  fighting  and 
many  perish,  —  which  is  the  case  among  primitive  societies,  — 
a  polygamous  tribe  will  prevail  over  a  monogamous  one  because 
the  number  of  births  in  the  latter  will  be  more  numerous. 

§  27.  Evolution  towards  Monogamy.  —  Whatever  the  reasons 
in  favor  of  polygamy  may  be,  it  encounters  an  insurmountable 
obstacle:  the  number  of  women  is  quite  perceptibly  equal  every- 
where to  the  number  of  men;  if  one  man  has  several  wives,  there 
will  be  others  who  have  none  at  all ;  this  will  always  prevent  polyg- 
amy from  becoming  general.  It  is  disappearing  at  the  present 
time  as  a  consequence  of  religion,  morals,  and  the  material  diffi- 
culties of  living.  In  India  more  than  ninety-five  per  cent  of  the 
Mahometans  are  driven  to  monogamy  by  necessity.    The  JMoors 

23 


§  27]  INTRODUCTION   TO   PRIVATE   LAW  [Intro. 

and  the  Kabyles  hardly  ever  have  more  than  one  wife.  It  is  the 
same  in  Persia  and  in  Egypt.  One  complaint  is  that  the  peace 
of  the  polygamous  household  must  often  be  disturbed.  The 
legislator  finds  himself  compelled  to  regulate  the  rights  and  duties 
of  husbands;  according  to  the  Koran,  the  Mahometan  must  regu- 
larly frequent  the  three  or  four  \vaves  which  the  law  permits  him 
to  have.  Often  each  wife  has  a  separate  house.  In  the  absence 
of  such  precautions  as  these  jealousy  will  result  in  its  natural  con- 
sequences: quarrels,  struggles,  bad  treatment  (in  the  Fiji  Islands 
the  rival  wives  eat  each  other's  noses,  literally,  in  order  to  dis- 
figure one  another).  The  rivalry  between  different  wives  becomes 
complicated  by  the  rivalry  between  the  children  of  various  wives. 
In  this  way  polygamy  is  found  to  be  one  of  the  causes  of  the  down- 
fall of  the  family, 

§  28.  Forms  of  Transition.  —  1st,  Polygamy  with  prominence 
of  one  wife;  2d,  Monogamy  with  concubinage;  3d,  JNIonogamy 
together  with  the  possession  of  women  slaves.  —  In  the  polyga- 
mous family  a  hierarchy  comes  to  be  established  among  the  wives; 
one  of  them  occupies  the  highest  place,  either  because  of  her  for- 
tune or  else  because  she  was  united  to  her  husband  by  the  solem- 
nities of  a  religious  marriage.  Among  the  IMormons  only  the 
first  wife  bore  the  husband's  name.  In  Turkey  the  first  wife  in 
point  of  time  is  mistress  of  the  house;  the  others  must  obey  her; 
only  her  children  inherit  the  position  and  possessions  of  the  father. 
The  second  wife  differs  little  from  the  concubine,^  who  is  ordinarily 
of  low  extraction,  is  bought  at  a  rather  low  price,  and  to  whom 
one  is  united  without  any  marriage  ceremony.^  The  concubine 
in  her  turn  is  similar  to  the  freed  woman  and  the  slave. 

§  29.  Monogamy  has  thus  prevailed  among  the  superior  races. 
It  is  beyond  a  doubt  that  it  is  much  better  than  polygamy, 
even  with  those  unfortunate  correctives  which  form  its  accom- 
paniment, —  adultery,  concubinage,  and  prostitution,  —  but 
which  we  must  not  forget  are  far  from  being  unknown  among 
people  who  practise  polygamy.  It  better  assures  peace  in  the 
household,  harmony  of  ideas,  and  unity  of  purpose.  It  avoids 
rivalries  and  quarrels,  whether  between  the  wives  or  between  the 

'  On  Roman  concubinage  c/.  P.  F.  Girard,  "Manuel  de  Dr.  Rom.,"  p.  177. 

*  "According  to  the  law  of  Jutland,  I,  27,  the  concubine  becomes  a  law- 
ful wife  when  she  has  lived  in  the  house  for  three  winters."  Cf.  Gains,  I,  111: 
the  Roman  "manus"  is  acquired  by  cohabitation  during  a  year  (unless  there 
has  been  an  interruption  of  the  "trinoclium").  —  In  China  the  lawful  wiie 
is  by  a  legal  fiction  considered  the  mother  of  the  children  of  the  concubines 
or  lesser  wives. 

24 


Topic  l]  ORIGIN   OF  THE   F.VMILY  [§30 

children  born  of  the  various  wives.  If  mortality  among  men  is 
not  too  great,  it  is  more  fruitful  than  the  polygamous  family;  for, 
although  there  may  be  fewer  children  born,  fewer  also  die;  they 
are  more  loved,  better  brought  up.  jNIonogamy  alone  protects 
the  dignity  of  the  woman,  and,  consequently,  that  of  the  man. 

§  30.  Evolution  towards  the  Independence  of  Children.  — 
The  domestic  authority,  which  was  at  first  only  a  form  of  the 
right  of  ownership,  has  gone  on  being  differentiated  and  becoming 
weakened;  to-day  it  is  no  longer  anything  but  the  shadow  of  it- 
self. In  Rome  it  meant  the  right  of  life  and  death  and  ended  only 
with  the  decease  of  the  "paterfamilias";  in  Gaul  among  the 
Galates  it  presented  the  same  characteristics.  The  Germanic 
"mundium,"  ^  which  it  has  been  attempted  to  contrast  with  the 
Roman  "potestas,"  did  not  originally  differ  perceptibly  there- 
from; it  was  not  a  sort  of  guardianship  organized  in  the  interest 
of  the  weak,  but  it  became  so.  It  has  been  wrongly  maintained 
that  the  child  who  was  politically  emancipated  by  the  taking  up 
of  arms  in  the  popular  assembly,  "  ipso  facto  "  ceased  to  be  under 
the  paternal  "  mundium."  ^  This  is  not  so  at  all.  In  order  that  this 
might  be  so  it  was  necessary  for  him  to  found  a  separate  estab- 
lishment or  to  pass  under  somebody  else's  authority,  into  another 
family;  perhaps,  however,  he  did  thereby  acquire  the  right  to  go 
away  from  the  hearth  of  his  father,  should  he  wish  to  do  so.  In 
Ireland  old  age^  caused  the  father  to  lose  his  authority.^  The 
State  thrust  itself  into  the  administration  of  the  group  that  was 
formerly  independent.  It  has  controlled  the  exercise  of  the  pa- 
ternal power,  repressed  abuses,  and  transformed  this  power  into 
one  of  protection  in  the  interest  of  the  children.  The  father  was 
formerly  a  despot  with  respect  to  his  children;  he  has  become  a 
guide  and  older  brother  who  is  respected  (or  whom  one  is  sup- 

1  "Mundium,"  an  expression  made  use  of  in  the  barbarian  laws,  comes 
from  "munt;"  a  literal  equivalent  of  the  Latin  "manus."  The  holder  of  the 
"mundium"  is  called  "munt,"  "muntporo,"  "mundoaldus,"  "foramundo." 
Cf.  "Vormund,"  guardian  in  the  existing  German  law. 

^  If  the  young  man  receives  arms  from  anyone  other  than  his  father,  —  for 
example,  from  a  chief,  —  he  then  enters  that  family's  "clientele"  {Brunner, 
I,  77;  Heusler,  "Instit.,"  II,  435)  or  becomes  his  adopted  son:  Sohm,  "Proced. 
de  la  L.  Sal.,"  app.  V. 

'  Moreover,  it  is  a  duty  for  children  to  kill  and  eat  their  relatives  who 
have  become  old  and  stricken  down  witli  infirmities. 

^  D'Arbois  de  Juhainville,  "La  Puiss.  pat.  en  Irlunde"  ("R.  Celt.,"  1891, 
VII,  241).  Unless  he  is  emancipated  the  son  cannot  contract  without  the 
consent  of  his  father;  but,  if  he  has  assumed  the  care  of  his  old  and  invalid 
father,  the  disabihty  ceases;  when  he  refuses  to  take  care  of  his  father  the 
latter  may  adopt  a  relative  or  a  stranger  ("mac  gor")  who  succeeds  him  if 
the  other  relatives  have  approved  of  the  adoption. 

25 


§  30]  INTRODUCTION   TO   PRIVATE   LAW  [Intro. 

posed  to  respect)  and  scarcely  more.  On  coming  of  age  the  child, 
whether  a  son  or  a  daughter,  is  always  emancipated,  even  if  he 
continues  to  live  with  his  parents.  The  right  of  correction  still 
exists,  but  only  to  a  very  much  lesser  degree  and  under  the  sur- 
veillance of  the  public  authorities.  The  possessions  of  a  child 
who  is  a  minor  are  taken  care  of  by  the  father;  he  is  sometimes 
allowed  to  have  the  enjoyment  of  them,  but  still  with  reservations, 
—  so  much  so  that  for  him  it  is  rather  a  care  than  a  benefit.  In 
case  he  abuses  his  power  the  father  is  deprived  of  the  paternal 
power.  If  the  father  dies,  or  in  case  of  his  absence  or  of  some  im- 
pediment, it  is  the  mother  who  exercises  this  power. 

§31.  Evolution  towards  the  Emancipation  of  the  Woman. — 
From  a  slave,  which  she  was  first  of  all,  woman  has  become  al- 
most the  equal  of  man.  The  beginning  of  this  evolution  is  to  be 
found,  according  to  an  opinion  that  was  formerly  widespread, 
in  the  old  Germanic  customs.  However,  marriage  among  the 
Alemanni  as  it  is  described  by  Tacitus,  18,  is  only  marriage  by  pur- 
chase: "The  wife  does  not  bring  any  marriage  portion  to  the 
husband;  it  is  the  husband  who  settles  a  marriage  portion  on 
his  wife.  The  parents  and  near  relatives  accept  the  presents, 
which  are  not  those  that  one  uses  to  please  women  or  those  with 
which  a  newly  married  woman  decks  herself,  but  oxen,  a  horse 
with  his  harness,  a  shield  with  a  staff  and  sword."  These  objects 
were  the  currency  of  that  period,  and  it  is  a  question  of  a  purchase 
price  paid  to  the  parents,  and  not  to  the  woman  herself,  for  Taci- 
tus adds:  "In  exchange  the  husband  receives  the  wife  as  his 
spouse";  from  whom  does  he  receive  her  if  not  from  her  parents? 
"The  wife  on  her  side  offers  a  few  arms  to  her  husband  ";  "aliquid 
armorum,"  which  can  only  be  understood  to  apply  to  a  share  of 
little  importance.  Tacitus  has  seen  in  these  objects  symbols  of 
the  life  in  common  which  the  spouses  were  about  to  lead;  the  wife 
will  learn  by  this  means  that  she  will  have  to  share  the  fatigues 
and  dangers  of  her  husband.  But  this  symbolical  interpretation 
of  the  Germanic  marriage  differs  too  much  from  the  results  fur- 
nished by  a  comparison  of  legislation  and  the  later  law  ^  for  us 
to  be  able  to  accept  it.  The  high  character  of  the  conjugal  union 
is  scarcely  compatible  with  the  facility  with  which  it  can  be  re- 
pudiated on  the  part  of  the  husband.    If  the  adultery  of  the  wife 

^  "L.  Saxon.,"  49,  65:  "uxorem  emere,"  43:  "pretium  emptionis"; 
Richthofen,  "L.  Sax.,"  288,  291;  "L.  Burg.,"  34,  42,  61:  "puella  emta."  In 
the  fifteenth  century  the  purchase  of  women  is  still  practised  among  the 
Dithmarches. 

26 


Topic  l]  ORIGIN   OF   THE   FAJVIILY  [§  32 

is  rarely  met  with,  —  and  the  severity  of  the  penalty  which  she 
incurs  is  not  unconnected  with  this  result,  —  the  irregularities  of 
the  husband  remain  unpunished.  In  certain  towns  second  mar- 
riages are  unknown,  "unum  corpus  unaque  vita  ";  but  this  affects 
only  women;  the  husband  may  contract  a  second  marriage,  and 
then  the  saying  "unum  corpus  "  is  found  to  be  false,  especially  if 
the  husband  is  polygamous;  the  wife,  according  to  the  Germanic 
ideas,  should  die  with  her  husband,  rather  after  the  manner  of 
the  suttee  in  India.  The  modern  feeling  of  respect  for  women  has 
nothing  in  common  with  that  magical  power  which  the  Alemanni 
believed  them  to  possess;  had  such  feeling  existed  they  would  never 
have  been  subjected  to  the  most  arduous  labor,  while  the  men 
remained  idle;  they  would  not  have  been  excluded  from  the  pa- 
ternal succession,  and  they  would  not  have  been  under  perpetual 
guardianship.^ 

§  32.  The  Same.  —  In  reality  the  elevation  of  the  condition  of 
women  had  its  origin  in  the  Roman  law,  in  the  Christian  ideas, 
and  in  the  customs  resulting  therefrom.  As  a  young  girl  or  a 
widow,  the  woman  has  ceased  to  be  under  guardianship.  She 
only*  lacks  political  rights,  and,  there  are  even  countries  where 
she  enjoys  these.  Her  parents  do  not  marry  her  any  more  against 
her  will ;  she  marries  herself.  The  power  of  the  husband  itself  has 
been  weakened.  The  husband  is  reduced  to  the  supervision  of 
the  household,  with  a  moral  and  sometimes  a  material  responsi- 
bility which  is  very  heavy.  Formerly  the  husband  alone  had  the 
right  to  repudiate  his  wife.  In  our  day  divorce  is  no  longer  a  pre- 
rogative of  the  man's;  the  woman  may  demand  it  for  the  same 
causes,  and  even  for  incompatibility  of  disposition,  or  without  any 
serious  reason,  according  to  the  Swiss  law. 

The  wife,  who  under  the  primitive  patriarchal  system  was  "in 
manu  mariti,"  and  who  for"  this  reason  could  have  nothing  of  her 
own,  now  possesses  a  fortune  of  her  own.  The  purchase  price 
paid  by  the  husband  to  the  relatives  of  the  wife  ^  is  changed  into 

1  Tacitus,  "Germ.,';  18,  19.  Cf.  15,  8;  Procope,  "De  Bell.  Goth.,"  II,  14 
(Herules :  the  widow  gives  up  her  life  on  the  tomb  of  her  husband) ;  Michelet, 
"Origines,"  p.  54. 

*  In  Ireland  the  wife's  father  receives  the  entire  purchase  price  for  the 
first  marriage;  for  the  second  marriage  the  father  receives  two-thirds  and  the 
wife  one-third;  for  the  third  marriage  each  one  receives  a  half;  at  each  new 
marriage  the  share  given  to  the  father  decreases  until  the  twenty-first  mar- 
riage, when  he  receives  nothing.  If  there  is  no  father,  then  the  brother  who 
is  the  head  of  the  family  exercises  these  rights ;  but  he  gets  only  half  of 
what  the  father  would  have  received:  D'Arbois  de  Jubainville,  "R.  Celt.,"  Ill, 
361. 

27 


§  32]  INTRODUCTION    TO    PRIVATE    LAW  [Intro. 

a  dower  for  the  widow;  the  relatives  have  left  only  a  fictitious 
price;  for  example,  the  "sou"  and  the  "denier"  of  the  Prankish 
Customs.  Originally,  the  wife  entered  the  husband's  family 
without  anything;  she  brought  with  her  no  property  excepting  a 
few  small  objects  such  as  clothing,  necklaces  and  the  rough  or- 
naments of  primitive  times,  —  the  only  possessions  which  she 
obtained  from  her  father.  But  in  time  the  reasons  which  had  ex- 
cluded her  from  this  inheritance  were  weakened;  the  daughters 
inherited,  at  least  if  there  were  no  brothers,  and  brought  their 
husbands  so  important  a  marriage  portion  that  it  was  the  por- 
tion rather  than  the  woman  that  one  married.^  This  is  just  the 
opposite  of  what  took  place  in  the  old  times,  and  the  contrast 
between  these  two  systems  had  struck  Tacitus:  "  Among  the  Ale- 
manni,"  says  he,  "  the  wife  brings  no  marriage  portion  to  her 
husband;  it  is  the  husband  who  makes  a  settlement  upon  the  wife." 
Ownership  for  the  wife  means  emancipation.  In  proportion  as 
she  becomes  more  wealthy  she  becomes  more  independent  of  her 
husband.  The  portion  of  her  fortune  which  she  keeps  for  her- 
self (paraphernalia)  is  often  far  greater  than  the  marriage  portion 
that  she  gives  to  her  husband.  Listen  to  the  old  Romans,  such 
as  Cato,  becoming  indignant  at  this  subjection  of  the  poor  hus- 
band to  the  rich  wife:  "At  the  time  of  one's  marriage,"  he  used  to 
say,  "one's  wife  brought  him  a  satisfactory  marriage  portion;  since 
that  time  she  has  received  considerable  sums  of  money  which 
she  has  not  confided  to  the  absolute  power  of  her  husband.  This 
money  she  has  lent  to  her  husband  for  interest,  and  as  soon  as 
he  gets  in  a  bad  humor  we  find  her  sending  some  paraphernalial 
slave  to  pursue  and  annoy  the  poor  man."  ^ 

The  Middle  Ages  contrasted  community  of  possessions  between 
spouses  with  the  Roman  marriage  portion  system.  Although 
under  this  latter  system  the  wife  is  no  longer  subject  to  the 
husband's  power,  still  she  has  absolutely  no  share  in  the  advan- 

'  As  to  the  wife's  property  in  India,  cj.  Sumner  Maine,  "Inst,  primit.," 
p.  402. 

^  In  the  Irish  law  the  position  of  the  married  woman  depends  upon  her 
fortune;  she  is  in  a  position  which  is  sometimes  inferior,  sometimes  equal,  and 
sometimes  superior  to  that  of  her  husband  (the  same  in  Sumatra);  the 
husband  who  is  poor  is  only  the  servitor  of  his  rich  wife.  Women  who  in- 
herit the  fortune  of  their  relatives  must  bind  themselves  not  to  take  the 
hereditary  possessions  into  another  family.  The  authority  of  the  husband 
is  broken  when  it  comes  in  contact  with  the  rights  of  the  wife:  D'Arbois  de 
Jubainville,  "R.  Celt.,"  1886,  p.  267.  Diodorus  of  Sicily  tells  us  that  among 
the  Egyptians  the  woman  could  in  her  marriage  contract  reserve  to  herself 
authority  over  her  husband,  even  though  he  were  king. 

28 


Topic  l]  ORIGIN   OF   THE   FAMILY  [§  32 

tages  realized  by  the  husband  in  the  administration  of  the  prop- 
erty forming  the  marriage  portion.  The  community  still  places 
the  wife  who  has  her  own  possessions  under  the  authority  of  her 
husband;  but  the  husband  cannot  have  any  disposal  of  the 
personal  belongings  or  family  possessions  of  his  wife;  and,  as 
acquisitions  made  during  the  marriage  belong  to  both  spouses 
in  common,  she  receives  her  share  of  them  when  the  marriage 
is  dissolved,  —  a  thing  which  is  perfectly  equitable  when  her 
personal  possessions  or  her  labor  has  contributed,  as  happens 
more  often  than  not,  to  the  acquisition  of  these  possessions  by 
the  community. 

In  England,  where  the  community  was  never  introduced,  the 
evolution  of  the  marriage  contract  was  the  same  as  at  Rome. 
The  "feme  covert,"  who  was  absorbed  in  and  annihilated  by  her 
husband,  resembles  the  Roman  wife  "in  manu  mariti."  But  the 
civil  law  was  often  evaded,  and  the  Law  of  1882  (Married  Woman's 
Property  Act)  sanctioning  an  emancipation  which  had  already 
taken  place  in  fact,  has  given  her  the  free  administration  and 
the  free  disposal  of  her  possessions;  she  is  merely  asked  to  con- 
tribute her  share  to  the  expenses  of  the  marriage;  she  is  in  the 
same  position  as  a  silent  partner. 

Separate  maintenance  while  waiting  for  the  attainment  of  a 
judicial  separation,  say  the  pessimists.  Can  this  really  be  the 
first  step  towards  the  disintegration  of  that  partnership  which 
better  than  any  other  has  succeeded  in  assuring  at  one  and  the 
same  time  the  preservation  of  the  species  and  the  well-being  of 
individuals?  Or,  on  the  other  hand,  is  it  a  means  of  still  further 
purifying  the  ideal  of  the  Christian  family,  that  great  school  of 
devotion  and  self-denial?  ^ 

^  Laboulaye,  "Recherches  sur  la  Condition  civile  et  politique  des  Femmes," 
1843;  P.  Gide,  "Etude  sur  la  Condition  priv6e  de  la  Femme,"  2d  ed.,  1885 
(added  to  by  Esmein).  —  Condorcet,  in  his  "Esquisse  des  Progr^s  de  I'Esprit 
humain,"  already  claimed  equality  of  the  sexes.  The  Code  of  the  Convention 
did  not  contain  any  article  relating  to  the  husband's  power.  In  our  own 
century  the  emancipation  of  women  has  been  sought  for  by  the  School  of 
Saint-Simon:  J.  Stuart  Mill,  "Subjection  of  Women,"  French  translation, 
1874;  Bebel,  "Ueber  die  Gegenwartige  und  Zukunftige  Stellung  der  Frauen," 
1878;  Bridel,  "La  Puissance  maritale,"  1879;  "Le  Droit  des  Femmes  et  le 
Mariage,"  1893. 


29 


§33] 


INTRODUCTION   TO    PRIVATE    LAW 


Intro. 


Topic  2.    Origin  of  Ownership 


§  33.  Ownership    of    Movables    and 
Ownership  of  Land. 


A.     COLLECTIVE    OWNERSHIP 


§34 


Collective  Ownership  of  the  Clan 
or  the  Tribe. 

35.  The  Ownership  of  Land  among 

the  Alemanni. 

36.  Frankish  Period. 

§  37,  38.  The  Germanic  March. 

39.  The  Marches  disappear. 

40.  Anglo-American  Townships. 
4L  The  "Mir." 

42.  The     Village     Community     in 

India. 

43.  The  "Dessa"  or  Commune  of 

Java. 

44.  The  Abandonment  of  Collective 

Ownership. 

B.    REMAINS   OF   COLLECTIVE 
OWNERSHIP 

45.  (I)  The  Manorial  System. 
§46,  47.    (II)  The   Rights  of    Per- 
emption and  Repurchase. 

48.  (Ill)  The  "Flurzwang." 


§  49.  (IV)  The  Rights  of  Commons. 

§  50.  "AUmends." 

§51.  Feudalism  and  Rights  of  Com- 
mons. 

§  52.  Theory  of  the  Feudists. 

§  53.  Theory  of  the  Romanists. 

§  54.  The  Revolutionary  Law. 

§  55.  Partition  of  Rights  of  Com- 
mons. 

C.  FAMILY   JOINT   OWNERSHIP 

§  56.  Family  Joint  Ownership. 

D.  REMAINS    OF    FAMILY   JOINT 

OWNERSHIP 

§  57.  (I)  Rules  of  Successions. 

§  58.  (II)  The  Classification  of  Im- 
movable Property  into  Per- 
sonal Belongings  and  Ac- 
quests 

§  59.  Family  Institutions  in  Our  Pe- 
riod. 

§  60.  (Ill)  Rules  of  Feudal  Owner- 
ship. 

§  61.  (IV)  The  Process  of  Evolution 
towards  Individual  Owner- 
ship. 


§  33.    Ownership    of    Movables    and    Ownership    of    Land.  — 

Ownership  of  movables,  which  was  the  first  in  point  of  time,  was 
originally  the  ownership  of  animals.  It  was  at  first  very  much 
restricted.  Men  who  lived  by  hunting  and  fishing  possessed  only 
a  few  arms,  rough  utensils,  and  skins  of  animals,  which  served 
them  as  clothing  and  a  hut  in  which  they  sheltered  themselves 
at  night.  Hunting  and  fishing  were  carried  on  in  common: 
the  big  game  and  fish  that  were  captured  were  the  collective 
property  of  the  group.  There  was  no  idea  of  any  appropriation 
of  the  soil.  The  tribe  believed  itself  to  have  exclusive  rights  only 
over  its  hunting  grounds.  It  was  the  same  when  the  pastoral 
system  was  substituted  for  hunting  and  fishing.  The  ownership 
of  land  made  its  appearance  only  with  agriculture.  According 
to  an  opinion  which  was  very  generally  accepted  a  short  time  ago, 
but  which  to-day  has  many  adversaries,  the  ownership  of  land 
must  have  originated  in  the  tribe  and  the  clan,  and  then  have 
passed  to  the  family,  and  finally  to  the  individual.    The  disagree- 

30 


Topic  2]  ORIGIN   OF  OWNERSHIP  [§  34 

ment  on  this  subject  is  as  to  whether  the  collective  ownership  of 
the  tribe  did  or  did  not  precede  family  joint  ownership;  but  there 
can  be  no  doubt  that  the  first  owner  of  the  soil  was  not  the  indi- 
vidual. Jean-Jacques  Rousseau  could  no  longer  write:  "The 
first  man  who,  having  enclosed  some  land,  thought  of  saying,  this 
is  mine,  and  found  people  simple  enough  to  believe  it,  was  the  true 
founder  of  the  civic  society." 

It  is  also  noticeable  that  the  right  over  land  was  not  originally 
determined  with  the  same  exactness  that  it  is  in  our  day.  It 
was  not  very  clearly  distinguished  from  the  sovereignty  which 
at  the  present  time  still  belongs  to  the  State.  During  the  feudal 
period  this  distinction  is  not  made  very  clearly.  It  is  only  in  our 
day  and  during  the  Roman  period  that  the  right  of  the  individual 
has  been  opposed  to  that  of  the  State  as  being  something  which 
cannot  be  altered. 


A.     COLLECTIVE    OWNERSHIP 

§  34.  Collective  Ownership  of  the  Clan  or  the  Tribe.  —  Agra- 
rian communities  are  met  with  in  countries  of  the  most  widely 
different  character.^  The  "Liber  Hymnorum,"  a  manuscript  of 
the  eleventh  or  twelfth  century,  attests  their  existence  in  Ireland 
until  the  seventh  century  a.  d.:  "There  was  neither  ditch  nor 
fence  nor  stone  wall  around  the  land  until  the  period  of  the  sons 
of  Aed  Slane  (658-694),  but  only  the  undivided  fields.  Because 
of  the  great  number  of  families,  in  their  period  they  introduced 
the  division  of  land."  ^     Among  the  Arabs  of  Algeria  a  distinc- 

'  Community  of  houses  is  also  found;  for  example,  among  the  Pueblo 
Indians.  Masselin,  in  his  "Journal  des  Etats  g6n6raux  de  1484,"  speaks  of  a 
sort  of  phalanstery  which  existed  in  his  time  in  the  region  of  the  Loire. 

2  The  Ownership  of  the  Soil  among  the  Gauls  in  the  time  of  Caesar  does 
not  belong  to  the  State,  but  probably  to  the  family.  Caesar,  comparing  the 
customs  of  the  Gauls  with  those  of  the  Alemanni,  points  out  the  existence  of 
collective  ownership  in  Germany;  he  could  not  have  failed  to  tell  us  of  its 
existence  in  Gaul  at  the  same  time;  his  silence  has  probative  force  against 
those  who,  like  D'Arbois  de  Jubainville,  have  maintained  the  contrary.  This 
learned  man,  in  his  "Rccherches  sur  les  Origines  de  la  Propriety  fonciere  et 
des  Noms  de  Lieux  habit6s  en  France,"  1890,  remarks  that  the  "fundus"  or 
Roman  domain  was  designated  by  the  family  name  of  its  first  owner  with 
the  termination  "anus"  in  Italy  and  in  the  south  of  Gaul,  and  "acus"  in  the 
remainder  of  Gaul;  for  example,  "fundus  Sabiniacus,"  the  domain  of  Sabinus, 
from  which  are  derived  the  modern  names  of  Savignac,  Savigny,  and  S6- 
vign6.  This  is  the  way  in  which  most  of  the  names  of  places  in  France  origi- 
nated. He  concludes  from  this  that  private  ownership  in  Gaul  dates  from  the 
Roman  conquest;  at  this  time  lands  were  baptized  in  the  Roman  fashion  by 
giving  them  the  name  of  their  owner.  This  argument  is  not  conclusive,  for 
the  Gallic  language  has  perished  and  with  it  the  names  of  the  "fundi,"  if  there 

31 


§  34]  INTRODUCTION  TO   PRIVATE   LAW  [IntrO. 

tion  is  made  between  "arch"  lands,  which  are  left  to  the  collec- 
tive enjoyment  of  the  tribe,  and  "melk"  lands,  which  are  under 
the  ownership  of  individuals.  Among  the  Yolofs  on  the  coast 
of  Gorea  the  head  man  of  the  village,  with  the  assistance  of  a 
council  of  the  elders,  makes  an  annual  redivision  of  the  lands 
to  be  cultivated.  The  best  known  forms  of  this  system  of  owner- 
ship are  the  Germanic  march,  the  English  township,  the  Rus- 
sian "mir,"  the  village  communities  of  India,  and  the  Javanese 
"dessa."  ^  Each  one  of  them  has  its  separate  history  and  phases 
which  will  not  allow  of  its  being  reduced  to  a  common  type,  that 
of  agrarian  communism.  1st.  Sometimes  the  tribe  jointly  culti- 
vates the  land,  or,  at  least,  each  family  occupies  and  clears  the 
quantity  of  land  that  it  needs  until  it  is  used  up;  this  is  only  pos- 
sible when  a  population  is  very  sparse  (Archangel,  Cossacks  of 
the  Don,  certain  villages  in  Hungary  in  the  eighteenth  century). 
2d.  Sometimes  periodic  allotments  take  place,  a  thing  which  be- 
comes necessary  when  population  increases  in  order  to  prevent  a 
few  from  taking  possession  of  everything  and  leaving  nothing  for 
the  rest.  3d.  And,  finally,  sometimes  the  partition  is  absolute 
with  regard  to  arable  lands,  and  only  waste  lands,  forests  and 
pasturage  are  left  in  joint  possession. 

§  35.  The  Ownership  of  Land  among  the  Alemanni  is  de- 
scribed by  Csesar,  "De  Bello  Gall.,"  VI,  22:  "[The  Alemanni] 

were  any;  besides,  private  ownership  may  exist  without  the  land  bearing  the 
name  of  its  original  owner:  Lecrivain,  "Ann.  de  la  Fac.  des  Lettres  de  Bor- 
deaux," 1889,  no.  2.    Cf.  "N.  R.  H.,"  1886,  478;  1887,  241. 

1  However  obscure  may  be  the  history  of  the  origin  of  Ownership  in  Rome, 
one  can  say  that  Rome  knew  family  joint  ownership  ("dominium,"  from 
"domus,  heredes  sui,"  D.,  28,  2,  11)  and  the  collective  ownership  of  the  people, 
or,  rather,  of  the  "gens";  wealth  consisted  at  first  only  in  slaves  ("familia") 
and  in  flocks  ("pecunia");  the  forms  of  mancipation,  the  primitive  method 
of  alienation  and  of  the  reclaiming,  cannot  very  well  be  applied  excepting  to 
movables,  which  leads  us  to  suppose  that  land  was  inalienable;  each  head  of  a 
family  had  as  liis  own  ("heredium")  only  two  "arpents"  of  land  (J^  "hec- 
tare"), "a  little  enclosure  analogous  to  that  of  the  Russian  peasant,  which 
could  not  support  him  and  his,  and  besides  which  there  must  have  been  not 
only  public  woods  and  pastures,  but  common  arable  lands."  Lands  taken 
by  conquest  which  were  the  property  of  the  State  ("ager  publicus")  consisted 
of:  1st.  Those  granted  as  a  gift  or  for  a  consideration  to  citizens  and  subject  to 
an  official  limitation  ("agri  limitati").  2d.  Those  left  to  be  occupied  by  indi- 
viduals, and  therefore  not  officially  limited.  At  the  beginning  of  the  Empire 
this  second  category  of  lands  became  the  absolute  property  of  its  occupants; 
this  made  impossible  the  agrarian  laws  by  which  the  people  took  back  these 
lands  from  their  occupants  in  order  to  grant  them  to  others,  which,  strictly 
speaking,  they  had  a  right  to  do,  but  which  brought  about  the  ruin  of  a  great 
number  of  people  and  disturbed  the  State.  From  that  time  on  "the  co- 
relation  between  limitation  and  private  ownership  ceased  to  exist."  The  family 
lands  were  thus  changed  into  private  ownership;  the  "ager  publicus"  had 
the  same  fate. 

32 


Topic  2]  ORIGIN  OF  OW-NERSHIP  [§  35 

have  little  taste  for  agricultural  labor;  they  live  more  on  milk 
and  meat  than  on  wheat.  None  of  them  possesses  any  settled 
amount  of  land  of  his  own;  and  none  of  them  has  any  enclosed 
fields;  but  each  year  the  chiefs  and  the  magistrates  distribute 
the  land  to  the  families  and  to  the  male  relatives.  .  .  .  The  fol- 
lowing year  they  are  compelled  to  change  places."  ^  This  very 
clear  text  should  serve  to  interpret  ^  the  much  discussed  passage 
from  the  "Germania"  of  Tacitus,  26,  which  deals  with  the  same 
subject:  "The  land,"  says  Tacitus,  "is  occupied  '  en  bloc'  by  the 
community;^  its  extent  is  determined  by  the  numbei*  of  culti- 
vators; it  is  repartitioned  among  them  according  to  their  social 
rank;  each  year  they  pass  from  one  piece  of  arable  ground  to 
another;  ^  the  repartition  is  very  easy  because  the  fields  are  very 
vast,  and  there  are  neither  orchards  nor  pastures,  —  nothing  but 
harvests."  ^  This  certainly  must  be  a  system  of  collective  owner- 
ship not  by  the  family  but  by  the  village.  The  only  thing  that 
escapes  from  it  is  the  house  with  a  little  plot  of  land  surrounding 

1  Cf.  IV,  I:  among  the  Suevi  there  was  neither  private  ownership  nor 
limited  fields;  no  one  was  allowed  to  stay  longer  than  a  year  in  the  same  spot. 

2  Tacitus,  "Germ.,"  28:  "summus  auctorum  divus  Julius." 

^  WTiat  are  these  "universi,"  these  communities?  A  group  of  "gentes"  and 
of  "cognationes,"  corresponding  perhaps  to  the  military  divisions,  the  hundred 
and  the  "millena." 

*  Because  the  land  which  one  occupied  at  first  has  become  used  up. 

^  "Agri  pro  numero  cultorum  ab  universis  invicem  (variants:  in  vices,  per 
vices,  vicis)  occupantur  quos  mox  inter  se  secundum  dignationem  partiuntur; 
facilitatem  partiendi  camporum  spatia  prsestant.  Arva  per  annos  mutant 
et  superest  ager;  nee  enim  cum  amplitudine  soli  labore  contendunt,  ut  pomaria 
conserant,  et  prata  separent,  et  hortos  rigent;  sola  terrse  seges  imperatur." 
Cf.  Horace,  "Odes,"  III,  18,  24.  Meitzen,  III,  586,  looks  upon  "invicem"  aa 
a  meaningless  repetition  of  "universis"  and  strikes  it  out.  According  to 
Fustel  de  Coulanges,  Tacitus  was  only  speaking  of  a  system  of  rotation  of 
crops.  Here  is  this  learned  man's  translation :  "  The  arable  lands  are  cultivated 
as  well  as  they  can  be  considering  the  small  number  of  hands  there  are  to 
cultivate  them;  they  are  only  made  valuable  in  sections  and  alternately  ('oc- 
cupantur in  vices');  this  is  done  for  greater  convenience  by  all  the  cultivators 
together  ('ab  universis');  each  one,  moreover,  has  in  it  his  share,  which  is 
proportional  to  his  right  ('secundum  dignationem').  From  time  to  time 
periodically  they  change  the  scene  of  their  labors  ('arva  per  annos  mutant'). 
And  then  they  go  to  another  part,  that  their  flocks  have  made  fertile.  Thus 
there  are  always  more  lands  than  they  are  cultivating."  —  Cf.  "Germ.,"  25, 
16  ("suam  quisque  domum  spatio  circumdat"),  20,  32.  There  is  a  good  deal 
of  discussion  among  German  authors  on  the  subject  of  the  method  of  tem- 
porary partition  of  the  land.  Cf.  "Ann6e  sociol.,"  I,  375.  The  early  form  of 
agriculture  could  be  reduced  to  burning  off  the  underbrush  and  the  trees  and 
sowing  upon  the  soil  thus  fertilized  by  the  ashes  ("6cobuage").  Exhaustion 
soon  takes  place,  and  it  is  necessary  to  go  to  another  piece  of  land.  The  tri- 
ennial rotation  of  crops,  practised  already  under  Charlemagne,  is  a  step  in 
advance;  the  perpetual  pasture  is  distinguished  from  the  field  which  is  culti- 
vated, which  is  nearer  the  center;  the  latter  is  divided  into  three  parts;  two  are 
sown  alternately,  —  one  with  winter  grain  and  the  other  with  summer  grain; 
the  third  is  left  fallow. 

33 


§  35]  INTRODUCTION   TO    PRIVATE    LAW  [Intro. 

it.     The  existence  of  this  agrarian  community  accounts  in  the 
most  natural  way  for  that  of  the  march  in  the  ^Middle  Ages.^ 

§  36.  Frankish  Period.  —  There  is  some  discussion  on  the 
point  as  to  whether  there  were  village  communities  during  the 
Frankish  period.^  This  was  not  the  ordinary  system  applied  to 
land,  —  at  least  in  France.  In  view  of  the  Roman  form  of  owner- 
sliip,  which  was  coming  to  an  end,  and  the  feudal  form,  which  was 
just  beginning,  the  collective  ownership  of  the  Germans  only  ap- 
peared sporadically,  especially  in  the  North.  The  reasons  put 
forward  tft  prove  its  existence  are  the  following:  1st.  The  Salic 
Law,  Tit.  45,  "De  Migrantibus " :  "If  a  man  establishes  himself  in 
a  village,  it  is  sufficient  to  have  him  expelled  that  one  of  the  in- 
habitants of  this  village  asks  for  it,  unless  he  shall  have  lived 
there  twelve  months."  The  prior  settler  would  not  be  authorized 
to  bring  about  an  expulsion  of  tliis  kind  if  there  were  not  a  very 
close  solidarity  among  the  inhabitants  of  a  village.  It  is  diffi- 
cult to  believe  that  this  solidarity  does  not  imply  a  certain  amount 
of  agrarian  land  owned  in  common.  The  Capitulary  of  819,  c.  7, 
which  modifies  the  Salic  Law,  would  lead  one  to  suppose  that 
assent  by  the  inhabitants  of  the  village  cannot  shelter  an  occu- 
pant from  the  owner's  right  of  reclaiming.^  2d.  The  Edict  of 
Chilperic,  561,  584,  c.  3,  abolishes  the  inlieritance  of  the  "vicini" 
or  inliabitants  of  the  village.  3d.  According  to  the  "Cap.  Ex- 
travag."  of  the  Salic  Law,  c.  9,  there  is  among  the  inhabitants  of 
villages  a  solidarity  in  criminal  matters  which  seems  to  be  less 
than  that  which  exists  among  the  members  of  a  family;  they  are 
responsible  for  a  murder  of  the  inhabitant  of  one  village  by  that 
of  another  when  the  guilty  man  is  not  kno^ai.^  4th.  There  is 
sometimes  a  question,  in  deeds  and  in  the  laws,  of  a  justice  carried 

'  The  fact  that  the  gifts  of  the  Germanic  chiefs  to  their  followers  did  not 
consist  in  land,  and  that  the  Alemanni  did  not  make  use  of  the  will,  does  not 
necessarily  imply  the  collective  ownership  of  the  tribe,  but  may  be  accounted 
for  by  means  of  family  joint  ownership. 

^  Thevenin,  "Les  Communia,"  1886;  Fustel  de  Coulanges,  "L'Alleu  et  le 
Domaine  rural,"  1890;  Glasson,  "Les  Communaux  et  le  Domaine  rural," 
1890  (and  authors  cited);  Blumenstock,  "Entstehung  d.  Deutschen  Immo- 
bihareigenthums,"  1894;  Dareste,  "J.  des  Sav.,"  1890;  "N.  R.  H.,"  1890, 
p.  821;  Foiirnier,  "R.  des  Quest,  hist.,"  1886;  Lamprecht,  "Le  M.  Age,"  1889. 

^  The  Capitulary  of  819,  which  provided  against  the  occupation  of  an- 
other's domain,  "villa  alterius,"  assumes  a  change  in  the  system  of  owTiership. 
"Villa"  ordinarily  means  domain,  but  also  by  extension  it  can  mean  village, 
group  of  houses  occupied  by  those  who  cultivate  the  domain,  "ipsi  qui  in  villa 
consistunt,  vicini";  the  employment  of  this  last  word  ("vicini"  from  "vicus") 
is  particularly  significant:  Fustel  de  Coulanges,  "R.  gen.  de  Droit,"  1886,  and 
"Nouv.  Recherches,"  1892;  Saleilles,  "Rev.  bourguign.,"  1895. 

*  Pardessus,  "L.  Sal.,"  p.  332. 

34 


Topic  2]  ORIGIN   OF   OWNERSHIP  [§  37 

out  by  the  "vicini"  or  "pagenses,"  just  as  later  on  there  is  a  ques- 
tion with  regard  to  justice  carried  out  by  the  march  or  by  the 
"colonge."! 

§37.  The  Germanic  March  ^  ("Dorfgenossenschaft,"  "Mark- 
genossenschaft"),^  which  is  found  in  the  North  of  France  after 
the  invasions  of  the  barbarians,  and  which  lasted  in  Germany 
throughout  the  entire  INIiddle  Ages,  does  not  differ  essentially 
from  the  agrarian  communism  described  by  Tacitus.  It  con- 
stituted an  organization  which  was  at  the  same  time  economical 
and  political. 

(I)  Looked  upon  in  the  first  aspect,  the  community,  a-  legal 
person,  is  the  owner  of  the  march.  The  march  consists  of  three 
parts:  1st.  The  village,  —  that  is  to  say,  the  dwelling-houses,  with 
the  yards  and  gardens  belonging  to  them.  2d.  The  arable  land 
("Feldflur"),  which  is  divided  into  parcels  and  at  this  time  sub- 
ject, like  the  house  with  its  yard  and  garden,  to  the  system  of 
private  ownership.  3d.  The  rights  of  commons  ("almeinde,"  "all- 
mend"),  which  are  left  to  the  joint  use  of  the  inhabitants  of  the 
village.  Each  one  of  these  categories  of  possessions  forms  a  por- 
tion of  the  march,  although  it  may  seem  that  the  first  two  classes, 
which  are  subject  to  private  ownership,  should  for  this  reason  be 
excluded.  The  " commarchani "  need  both  equally:  how  is  one  to 
build  his  house  without  the  wood  which  is  furnished  by  the  forests 
belonging  to  the  community?  how  feed  the  cattle  that  work  in 
the  fields  without  the  common  pasture?  Once  the  harvest  has 
been  gathered,  the  arable  land  is  left,  like  the  "allmend,"  to  the 
enjoyment  of  all;  it  is  necessary,  in  order  that  all  may  have 
the  same  rights,  to  regulate  cultivation  and  fix  the  number  and  the 
rotation  of  crops  and  the  period  of  the  harvest.  The  right  of  the 
people  collectively  is  still  very  extensive,  even  over  the  share  of 
the  individual.'^    A  day  will  come  when  the  "allmend"  will  be  an 

1  Thivenin,  "Textes,"  p.  58  (Act  of  871);  "L.  Bav.,"  17,  2;  "Burg.,"  49, 
3;  "Form.  Senon.,"  .38. 

-  "Marca,"  literally  mark,  means  limit,  and  by  extension  land  situated 
within  the  limits  of  a  village,  within  the  confines  of  a  country.  The  common 
lands  of  the  villages,  being  near  the  limits  of  the  territory  of  the  latter,  and 
outside  of  the  cultivated  fields,  were  called  Marches:  "N.R.  H.,"  1892  ("Lea 
marches  s^parantes  d'Anjou"). 

^  The  "Markgenossenschaft,"  or  association  of  the  march,  is  not  absolutely 
identical  with  the  "Dorfgenossenschaft,"  or  village  association;  it  may  in- 
clude several  villages;  for  example,  a  metropolis  village  and  colony  v-illagea 
(" Filial dorfer").  The  "colonges"  ("colonica")  of  Alsace  constitute  com- 
munities analogous  to  the  marches. 

*  Michelet,  "Orig.,"  p.  229.  —  Loysel,  "Inst.  Cout.,"  257:  "Le  bois, 
acquiert  le  plain "  ("Bourgogne,"XIII,  1);  the  "socome"  forest  (that  is  to  say, 

35 


§  37]  INTRODUCTION  TO   PRIVATE   L-\W  [Intro. 

accessory  of  private  ownership  of  the  house  and  the  field ;  but  this 
will  be  at  the  period  of  the  decline  of  the  march;  the  economical 
condition  of  which  it  is  the  expression  will  have  changed.  There 
is  some  discussion  as  to  the  rights  of  the  "commarchani,"  mem- 
bers of  the  community,  and  the  rights  of  the  community  itself. 
The  controversy  is  based  upon  the  fact  that  some  of  the  docu- 
ments affecting  the  march  correspond  to  its  decline  and  some  to 
its  zenith,  so  that  it  is  impossible  always  to  make  the  necessary 
distinctions.  In  proportion  as  the  march  disappears  the  rights  of 
its  members  become  detached  and  strengthened.  But,  if  one 
places  oneself  at  about  the  twelfth  century  in  the  very  midst  of 
feudalism  and  disregards  local  variations,  the  community,  a  legal 
person,  is  found  to  be  the  only  owner,  to  the  exclusion  of  the 
"commarchani."  It  alone  has  the  right  to  dispose  of  all  or  a  part 
of  the  lands;  it  alone  regulates  the  method  in  which  they  shall  be 
enjoyed;  it  alone  can  authorize  the  changing  of  the  "allmend" 
into  land  to  be  cultivated  by  clearing  it  ("rodung").  The  inhab- 
itants of  the  village  can  only  keep  their  shares  by  virtue  of  the 
statutes;  their  title  is  but  the  will  of  the  march.  Theoretically, 
the  march  would  have  a  right  to  make  a  new  repartition  of  all  the 
arable  land;  it  does  not  make  use  of  this  right  as  in  the  time  of 
Tacitus,  but  the  right  still  exists  to  all  intents  and  purposes.  The 
enjoyment  of  the  lands  owned  in  common  is  similar  to  that  which 
exists  in  our  day  with  relation  to  certain  portions  of  the  public 
domain  (roads,  rivers).  It  belongs  to  the  inhabitants  neither  as 
joint  owners  with  joint  possession  nor  as  persons  having  a  right 
to  servitudes,  and  this  is  shown  by  the  fact  that  it  depends  upon 
the  community  to  modify  the  exercise  of  it,  and  even  to  do  away 
with  it  altogether,  by  alienating  the  "allmend";  the  community 
could  neither  do  away  with  a  right  of  joint  ownership  nor  a  servi- 
tude. If  there  is  an  action  between  two  marches  with  regard  to 
a  field  that  is  cultivated  by  a  member  of  one  of  them,  this  mem- 
ber is  not  a  party  to  the  action,  as  would  be  the  case  were  it  a 
question  of  private  property;  it  is  the  two  marches  that  plead 
against  each  other.  In  case  of  the  march  being  alienated,  or  if  it 
is  encumbered  with  rents  (for  example,  in  1172  the  village  of 

where  it  is  forbidden  to  take  wood  or  pasture  domestic  animals)  acquires  for 
its  owner  the  portions  of  the  neighboring  heritages  over  which  it  extends,  — 
the  extensions  which  have  remained  thirty  years  uncultivated.  —  In  the  same 
way  in  Germany  any  doubt  is  interpreted  in  favor  of  the  "allmend";  the 
uncultivated  land  easily  accrues  to  the  march;  Chaisemartin,  "Proverbesdu 
Dr.  Germ.,"  p.  113  et  seq.  —  Loysel,  248:  all  extensions  are  looked  upon  aa 
common  pastures  on  waste  lands. 

36 


Topic  2]  ORIGIN   OF  OWNERSHIP  [§  38 

Bernheim  was  placed  under  the  control  of  the  Empire  by  the 
"  villani"),  the  members  of  the  march  do  not  sign  together,  as  they 
would  do  if  they  were  owners  with  joint  possession.  Everything 
is  done  according  to  a  decision  arrived  at  by  the  community.  This 
decision  is  binding  upon  all  its  members;  one  of  them  could  not 
attack  the  deed  under  the  plea  that  he  did  not  approve  of  it. 
This  would  be  quite  different  in  case  of  joint  possession.  In  case 
the  "allmend"  is  alienated  the  enjoyment  of  the  member  of  the 
community  in  it  will  cease.  He  cannot  plead  this  right  against 
a  third  party  who  acquires  it;  the  most  he  would  have  would  be  a 
right  to  attack  the  conveyance  had  it  been  irregular.  The  debts 
of  the  march  are,  it  is  true,  charged  to  the  members  of  the  com- 
munity; but  this  is  a  consequence  of  the  system  of  financial 
organization  of  that  time,  which  was  very  rudimentary,  —  a 
consequence  which  corresponds  with  the  Customs,  such  as  those 
which  made  the  citizens  of  a  town  responsible  for  each  other's 
debts  to  strangers. 

§  38.  The  Same.  —  (II).  The  march  with  its  assemblies  and 
its  representatives,  forms  a  natural  political  division,  and  perhaps 
it  is  at  first  confused  with  the  hundred.  At  any  rate,  during  the 
feudal  period,  it  is  like  a  little  State.  It  has  its  own  administra- 
tion, police,  and  justice;  it  provides  for  everything,  and  in  this 
respect  is  connected  with  the  public  law.  "The  march  was  sov- 
ereign, even  though  it  should  pay  a  rent  to  a  lord.  Its  members 
assembled  together  and  deliberated  upon  its  common  interests; 
even  though  an  administrative  council  had  been  appointed  for 
its  current  business,  the  general  assembly  kept  the  right  to  the 
most  important  decisions;  the  admission  of  new  members,  sale,  or 
partition  of  forests,  ratification  of  judgments  rendered  in  difficult 
cases,  appointment  and  surveillance  of  the  officers  of  the  police 
and  the  law.  The  smallest  details  are  regulated  by  tradition:  the 
time  and  place  of  the  meeting,  the  preparatory  ceremonies,  the 
condemnation  to  a  fine  of  those  who  are  absent,  the  form 
that  the  discussions  take,  the  method  of  voting.  The  session 
is  public,  but  only  the  members  of  the  march  can  take  part 
in  it;  the  proceedings  take  place  orally.  Each  march  has  its 
penal  code."  In  the  same  way  the  Alsatian  "colonges"  have 
a  tribunal  appointed  by  all  the  members  of  the  "colonge" 
(even  though  they  may  be  serfs),  or  by  twelve  of  them 
(Aldermen,  "Schoeffen,"  "Heimbiirger"),  presided  over  by  the 
"  Schultheiss "  ("Scultetus")  or  a  seigniorial  provost,  charged,  in 

37 


§  38]  INTRODUCTION   TO   PRIVATE   LAW  [  Intro. 

addition  to  his  function  as  a  judge,  with  collecting  the  rent  due 
to  the  lord. 

§  39.  The  Marches  disappear  towards  the  fifteenth  or  six- 
teenth century;  their  rights  of  justice  pass  to  the  seigniorial  or 
royal  judges;  individual  ownership  comes  to  be  entirely  substi- 
tuted for  community  ownership  of  arable  land;  the  cultivated 
field  becomes  the  principal  thing  and  the  "allmend"  an  accessory. 
However,  the  agrarian  system  of  the  march  has  been  preserved  as 
a  result  of  the  nature  of  the  land  in  some  parts  of  Switzerland  and 
Holland.! 

§  40.  Anglo-American  Townships.^ — Throughout  England  there 
seems  to  have  existed  in  primitive  times  the  township  or  com- 
mune with  its  common  pasture  and  its  arable  lands  subject 
to  periodical  repartition  according  to  the  "run-ring  system"  or 
system  of  successive  partition  of  the  land,  of  the  passing  from  one 
lot  to  another  in  a  continuous  circle.  The  property  owned  in 
common  was  ruled  over  by  the  "mot,"  or  assembly  of  the  in- 
habitants, during  the  Anglo-Saxon  period.  This  agrarian  and 
political  system  was  imported  into  America  by  the  English  colo- 
nists; even  to-day  the  commune  in  the  United  States  is  called  a 
township.  It  disappeared  in  Great  Britain  long  since,  excepting  in 
a  few  portions  of  the  lowlands  of  Scotland  and  the  Hebrides,  where 
one  finds  "crofters,"  small  farmers  who  have  received  portions 
of  land  ("crofts")  and  who  pay  a  quit-rent  to  the  landlord.  They 
meet  together  once  a  year  in  order  to  decide  what  portion  of  the 
land  shall  be  placed  under  cultivation  and  to  make  a  partition  of 
the  same  among  themselves;  the  shares  are  measured  by  the  con- 
stable by  means  of  the  official  rod,  and  then  lots  are  drawn  by 
the  shepherd;  sometimes  private  ownership  begins  to  come  into 
existence;  the  crofter  has  his  own  special  piece  of  land  to  develop 
besides  a  portion  of  the  arable  land  of  the  township. 

§  41.   The  "Mir"  (people),  or  commune^  in  greater  Russia,  is  the 

1  Heusler,  "Inst.  d.  Deutsch.  Private.,"  I,  294. 

2  Laveleye,  op.  cit.,  p.  258;  Seebohm,  "The  English  Village  Community," 
1890;  Seebohm  and  Joshua  Williams,  "The  Rights  of  Commons,"  1892; 
Sumner  Maine,  "VUlagQ  Communities,"  1880;  Pollock  and  Maitland,  "Hist, 
of  Engl.  Law., "  I,  5.50;  Maitland,  "Township  and  Borough,"  1898;  "  Domesday 
Book  and  Beyond,"  1897,  p.  341;  Digbij  and  Harrison,  "Introduction  to  the 
History  of  the  Law  of  Real  Property,"  1897.  —  Town  is  equivalent  to  "villa": 
township  means  the  community  of  inhabitants  ("villata"). 

'  Laveleye,  op.  dt.,  p.  10;  Haxthausen,  "Etudes  sur  I'Etat  int^rieur  de  la 
Russie,"  1842-3;  A.  Leroy-Beaulieu,  "L'Empire  des  Tsars,"  I,  1.  viii;  "Revue 
des  Deux  Mondes,"  March  1,  1879;  Kovalewsky,  op.  cit.,  and  "N.  R.  H.," 
1891,  p.  480. 

38 


Topic  2]  ORIGIN   OF   OWNERSHIP  [§  42 

owner  of  the  soil;  and  because  of  this  right  it  has  to  pay  the  taxes 
to  the  State  and  the  rent  to  the  lord.  It  is  at  one  and  the  same 
time  an  agrarian  and  a  pohtical  organization,  just  like  the  march; 
its  self-government  is  as  absolute  as  in  the  American  township. 
The  heads  of  the  families,  having  met  together  in  an  assembly 
presided  over  by  the  "starosta,"  discuss  the  affairs  of  the  commu- 
nity. Two-thirds  of  their  votes  are  necessary  in  order  to  expel  a 
member.  In  certain  communes  cultivation  is  carried  on  by 
all  in  common  and  the  harvest  is  divided  in  proportion  to 
the  number  of  workers.  In  other  communes  the  lands  are  peri- 
odically divided  up,  sometimes  the  individual  and  sometimes 
each  household  receiving  a  share.  The  commune  sometimes 
keeps  a  certain  amount  of  land  in  reserve;  were  it  not  for  this, 
each  person's  share  would  decrease  in  proportion  as  the  popula- 
tion increased.  Formerly  the  partition  took  place  every  year  or 
every  three  years ;  now  it  only  takes  place  every  nine  years 
and  on  the  occasion  of  each  official  census.  The  dwelling-house 
("izba")  and  the  garden  surrounding  it  are  the  private  property 
of  the  family;  the  head  of  the  family  cannot  alienate  it  without 
the  consent  of  the  inhabitants  of  the  village,  and  the  latter 
have  the  right  of  pre-emption. 

It  was  formerly  thought  that  this  form  of  ownership  dated  back 
to  the  very  oldest  times.  Recent  research  has  shown  that  it  had 
not  yet  come  into  existence  in  the  sixteenth  century;  at  that  time 
family  joint  ownership  was  the  only  form  of  ownership  known. 
But  when  the  family  communities  came  to  be  dissolved  their 
lands  were  partitioned,  and  each  one  of  their  members  could 
alienate  his  entire  share  or  a  portion  of  it  to  strangers,  who  then 
took  the  place  of  relatives.  Thenceforth  the  persons  composing 
the  community  were  no  longer  the  same  and  the  shares  ceased  to 
be  equal.  At  the  same  time  groups  of  farmers  became  detached 
from  the  family  in  order  to  make  the  waste  lands  of  some  value; 
the  colony  became  reunited  to  the  central  settlement,  which  was 
another  cause  of  inequality.  When  it  became  no  longer  possible 
to  occupy  new  lands  and  the  population  increased,  an  equal  parti- 
tion among  all  the  members  of  the  community  was  demanded. 
From  thence  arose  the  system  of  periodical  repartitions,  which 
is  not  so  very  ancient  as  has  been  thought,  but  is  relatively 
modern. 

§  42.  The  Village  Community  in  India  was  not  at  first  recog- 
nized by  the  English;  taking  as  their  basis  the  theory  of  the  ^la- 

39 


§  42]  INTRODUCTION   TO   PRIVATE   LAW  [Intro. 

hometans  that  the  soil  belongs  to  the  sovereign,  and  that  there  is 
no  such  thing  as  private  ownership  of  land,  excepting  by  reason 
of  his  tolerance,  they  transported  into  Lower  Bengal  the  English 
form  of  feudal  ownership  and  looked  upon  the  tax  collectors  as 
the  great  landowners;  when  it  perceived  the  error  that  had  been 
committed  the  government  applied  directly  to  the  cultivators  in 
order  to  obtain  the  tax,  which  resulted  in  the  creation  of  a  class 
of  peasant  landowners.  The  true  organization  of  ownership  was 
only  understood  by  the  English  administrators  after  the  conquest 
of  the  Punjab.  It  was  then  that  the  village  community  was  dis- 
covered, with  its  arable  lands  divided  into  separate  lots  and  culti- 
vated according  to  traditional  rules;  with  its  pastures,  the  use  of 
which  is  jointly  possessed;  and  with  its  group  of  houses,  each  one 
of  which  is  under  the  authority  of  the  head  of  a  family.  In  the 
central  provinces  (and  in  Afghanistan)  lands  under  cultivation 
are  still  subject  to  periodical  repartition ;  elsewhere  they  have  ceased 
to  be  so,  and  each  cultivator  keeps  his  share  individually  (which 
allows  his  creditors  to  obtain  possession  of  it  should  he  not  pay 
them,  whereas  they  would  not  have  dared  to  do  this  when  this 
share  was  not  distinct  from  the  domain  of  the  village).  The  sub- 
jection of  the  inhabitants  of  the  village  to  the  customary  rules 
with  regard  to  the  cultivation  of  arable  lands  and  the  use  of  the 
common  lands  contrasts  with  their  independence  within  their 
own  house;  in  the  latter  we  have  a  circle  wherein  the  community 
loses  every  right;  to  the  Hindu  could  be  applied  the  English 
maxim:  "The  Englishman's  house  is  his  castle,"  .  .  .  were  there 
no  English  in  India;  for  they  indeed  have  failed  to  concede  the 
absolute  right  of  the  master  of  the  house.  However,  they  have 
not  succeeded  in  doing  away  with  the  mystery  with  which  family 
life  is  surrounded,  and  which  is  concealed  even  in  the  most  humble 
interiors.  The  slightest  attempt  on  the  part  of  the  legislator  to 
interfere  with  the  domain  reserved  to  the  "paterfamilias"  causes 
a  very  great  scandal;  for  example,  there  is  a  complaint  that  the 
criminal  law  of  the  English  deals  with  women  and  children  in  the 
same  manner  as  with  men.  The  group  is  all  sufficient  to  itself;  it 
has  its  religious  organs  (a  Brahman  and  a  dancing-girl),  political 
(a  council  of  the  elders  or  a  head,  who  is  elected  or  inherits  his 
position,  and  who  administers  justice  and  upholds  the  custom  and 
a  police)  and  economical  (various  artisans,  traders,  and  a  scribe,  — 
all  having  their  hereditary  professions),  which  allow  it  to  dispense 
with  all  aid  from  outside.    Strangers  are  not  admitted  within  the 

40 


Topic  2]  ORIGIN   OF   OWNERSHIP  [§  44 

village  unless  they  purchase  a  share  of  one  of  the  inhabitants  and 
obtain  the  consent  of  the  latter.^ 

§  43.  The  "  Dessa"  or  Commune  of  Java  is  the  owner  of  the  land 
that  is  cultivated  by  its  inhabitants.  Its  chief,  who  is  elected  for 
a  year,  repartitions  among  the  various  families  the  lands  upon 
which  rice  is  grov/n;  he  has  a  larger  share,  both  he  himself  and  the 
elders  of  the  village  who  form  his  council.  The  form  of  cultiva- 
tion which  is  practised  has  rendered  necessary  a  development 
by  all  in  common;  that  is  to  say,  a  general  system  of  irrigation 
is  required  for  the  cultivation  of  rice.  But  this  method  of  culti- 
vation did  not  call  for  collective  ownership;  it  could  perfectly  well 
have  been  combined  with  individual  ownership  or  family  owner- 
ship, for  it  is  difficult  to  see  why  the  inliabitants  of  the  village 
must  change  their  share  every  year.^ 

§  44.  The  Abandomnent  of  Collective  Ownership.  —  Agrarian 
communities  are  not  suitable  either  for  concentrated  cultivation 
or  for  varied  cultivation.  The  cultivator  does  not  become  de- 
pendent upon  the  land,  for  he  knows  that  it  is  going  to  be  taken 
away  from  him  at  the  end  of  a  short  time;  for  difficult  work  which 
does  not  give  any  immediate  profit  the  stimulant  of  ownership  or 
long  enjoyment  is  necessary.  The  members  of  the  commune, 
bound  down  by  tradition,  cannot  indulge  in  various  kinds  of  cul- 
tivation; the  regulations  kill  any  spirit  of  initiative;  no  one  at- 
tempts any  innovation  because  he  cannot  count  on  the  benefit 
resulting  from  it.  Everywhere  that  the  individual  has  freedom  to 
act  as  he  will  —  in  towns  first  of  all,  and  afterwards  in  the  coun- 
try —  a  minority  enriched  by  trade  is  formed,  which  monopo- 
lizes the  land  and  is  opposed  to  the  periodical  partition.  The 
community,  and  the  equality  which  is  the  result  of  it,  only  con- 
tinue to  exist  in  the  case  of  people  among  whom  the  spirit  of 
enterprise  cannot  be  given  a  free  rein.  For  the  others,  commerce, 
industry,  the  raising  of  cattle  and  the  development  of  movable 
property  give  rise  to  helpful  inequalities.  It  is  the  citizen  of  the 
town,  the  representative  of  economic  progress,  that  has  been  the 

1  Baden-Powell,  "Land  Revenue  in  India,"  1894,  and  "Land  Systems  of 
British  India,"  1892,  considers  these  Hindu  communities  as  of  later  forma- 
tion and  of  a  relatively  recent  date.  Cf.  Lavcleye,  43,  294;  Tupper,  "Pun- 
jab's Customary  Law,"  1881;  Kohler,  "Z.  f.  vergl.  Rechtsw.,"  1887,  161; 
Sumner  Maine,  "Et.  sur  I'Hist.  du  Dr.,"  p.  137;  Jolly,  "Recht.  u.  Sitte," 
1896  ("Gr.  d.  Indo-arisch.  Philol."),  "R.  crit.  de  Litt.,"  1887,  p.  318. 

^  The  repartition  of  the  wat(!r  necessary  for  the  proper  cultivation  of  tiie 
Plain  of  Valencia  in  Spain  was  made  under  the  Moors  by  a  collective  admin- 
istration without  there  being  any  common  ownership. 

41 


§  44]  INTRODUCTION  TO   PRIVATE   IA.W  [  Intro. 

ruin  of  collective  ownership.  The  Russian  peasant,  jealous  of 
the  citizen's  wealth,  which  he  believes  has  only  come  from  fraud 
and  usury,  calls  him  "the  destroyer  of  *mir.'"  ^ 

The  history  of  the  colonists  of  the  Island  of  Nantucket,  in  1671, 
furnishes  us  a  curious  example  of  the  transition  from  collective 
ownership  to  individual  ownership.  A  group  of  dissenters,  fleeing 
from  the  persecutions  of  the  Puritans  of  Massachusetts,  estab- 
lished itself  in  the  island,  as  might  have  been  done  by  one  of  the 
tribes  which  Tacitus  speaks  of.  Each  colonist  received  a  share  of 
the  land  for  his  house  and  his  enclosure;  the  rest  of  the  island  was 
left  undivided.  The  sandy  soil  being  incapable  of  furnishing  two 
harvests  in  succession,  each  year  the  cultivation  was  changed  to 
another  part  of  the  island  that  had  become  enriched  in  its  soil 
through  the  keeping  of  cattle,  in  such  a  way  as  to  return  at  the 
end  of  seven  years  to  the  lands  which  had  first  been  cultivated. 
The  colonists  only  received  a  share  of  arable  lands  for  a  year. 
Little  by  little,  the  soil  became  more  fertile;  wealth  in  movables 
was  the  result  of  various  causes,  —  fishing,  maritime  commerce. 
Inequality  of  fortune  made  its  appearance,  and  with  it  private 
ownership,  which  was  substituted  for  collective  ownership.^ 

The  abandonment  of  collective  ownership  has  everywhere  coin- 
cided with  general  progress.  The  modern  phalansteries  have  not 
succeeded  in  restoring  it  to  honor,  and  the  recent  experiments 
made  in  the  Antipodes,  in  Southern  Australia  (Adelaide)  with  the 
object  of  returning  to  this  archaic  system,  are  not  at  all  encourag- 
ing.^ Will  another  evolution  in  agriculture  bring  us  back  to  it 
by  substituting  cultivation  on  a  large  scale  with  the  aid  of  ma- 
chinery for  cultivation  on  a  small-  scale,  just  as  industry  on  a 
large  scale  is  being  substituted  for  industry  on  a  small  scale?  Let 
the  economists  reply.     But,  whatever  their  reply  may  be,  we 

'  Kovalewsky  attributes  the  downfall  of  agrarian  communities  to  political 
causes,  but  these  causes  themselves  are  dependent  upon  economic  changes 
(for  example,  the  part  played  by  the  middle  classes).  It  is  hard  to  deny 
without  being  paradoxical  that  the  system  of  private  ownership  stimulates 
individual  activity;  with  the  old  form  of  agriculture,  which,  so  to  speak, 
assumed  that  neither  machines  nor  capital  existed,  the  owner  got  more  out 
of  his  field  than  the  member  of  the  community  got  out  of  the  common  field. 

2  Belot,  "Nantucket"  ("Ann.  de  la  Fac.  des  Lois  de  Lyon,"  1884);  "Ac. 
Sciences  Morales,"  1885. 

3  "Economiste  Fran^ais,"  Dec.  28,  1895,  p.  839  (Law  of  Dec.  23,  1893). 
M.  de  Laveleye  attributes  all  sorts  of  \'irtues  to  collective  ownership.  It  teaches 
us  political  life,  gives  us  the  spirit  of  preservation,  does  not  allow  of  extreme 
poverty,  and  keeps  the  population  in  the  country.  He  contrasts  the  English 
workman  in  his  workhouse  with  the  free  Swiss  commoner,  with  his  "allmend." 
—  We  might  as  well  ask  for  a  return  to  the  Golden  Age.  —  Cf.  Dupuy,  "Le 
Communisme  Chretien,"  1889. 

42 


Topic  2]  ORIGIN   OF   OWNERSHIP  [§  46 

must  none  the  less  believe  it  to  be  certain  that  in  passing 
from  this  primitive  stage  the  system  of  agriculture  has  been 
improved. 

B.     REMAINS    OF    COLLECTIVE    OWNERSHIP 

§  45.  (I)  The  Manorial  System.  The  great  domains  of  the 
Prankish  period  ("villa,"  "fiscus")  were  divided  into  farms, 
"manses"  (from  "manere").^  The  owner  reserved  a  portion  for 
himself,  the  "dominicum,  mansus  indominicatus,"  with  the  "casa" 
or  "sala  dominica,"  which  recalls  the  Roman  "prsetorium."  ^  The 
other  "manses"  were  granted  to  cultivators  (colonists,  "lites" 
or  slaves),  and  they  were  called  tributaries,  because  the  holders 
of  them  had  to  pay  quit-rents  to  the  master  and  performed 
various  duty  services  (labors,  "ragse,"  "curvadse";  carting, 
"  carroperse  " ;  manual  labor,  "manuoperae")  upon  the  land  which 
the  latter  reserved  to  himself.  Outside  of  these  manses  (house, 
garden,  arable  land)  the  uncultivated  lands,  such  as  pastures, 
woods,  and  waste  lands,  were  left  for  the  use  of  all  the  cultivators 
of  the  great  domain.  Is  this  the  agrarian  community  of  primitive 
times,  but  subject  to  the  lords  and  operating  for  their  benefit 
(Kovalewsky)  or  a  creation  of  feudalism  (Seebohm),  or  some- 
thing derived  from  the  Roman  form  of  organization  of  ownership 
on  a  large  scale  (Fustel  de  Coulanges)  ? 

§  46.  (II)  The  Rights  of  Pre-emption  and  Repurchase  often 
existed  for  the  benefit  of  the  inliabitants  of  the  village;  if  one 
of  them  wishes  to  alienate  his  land,  the  others  have  preference 
over  grantees  who  are  strangers,  or,  assuming  a  sale  to  have  taken 
place,  they  can  have  themselves  substituted  for  these  strangers. 
The  old  law  increases  the  number  of  these  repurchases:  there 
is  one  for  the  benefit  of  the  fellow  heirs,  of  joint  owners  with 
joint  possession  (the  community  repurchase  and  the  repurchase 
of  convenience),  of  neighbors  who  wish  to  get  back  a  share  which 
was  formerly  taken  out  of  the  inheritance  (the  repurchase  of 
"escleche,"  that  is  to  say,  eclipse,  dismembering).  In  France  this 
abuse  is  less  than  elsewhere;  repurchases  of  this  nature  are  an 
exception;  in  Germany  and  elsewhere  they  abound  and  render 
transactions  in  immovables  almost  impossible,  for  a  man  is  hardly 

'  "Hobse"  ("Hof,"  court)  "curtis,"  "curtilis"  (court,  enclosure,  and  by 
extension  the  manor,  with  and  without  the  domain),,  "virgatse"  in  England, 
hyde.     "Mansus,"  "manoir,"  "mas,"  "meix." 

2  Salic  land  in  the  Alsatian  "colonges,"  German  "Fronhof,"  chief  manor 
in  England. 

43 


§  46]  INTRODUCTION   TO    PRIVATE    LAW  [Intro. 

likely  to  buy  when  he  has  the  prospect  of  having  his  bargain 
taken  away  from  him  by  another,  however  small  his  profit  may 
have  been.^ 

§  47.  The  Same.  —  The  formalities  and  publicity  with  which 
various  legislations  surround  the  alienation  of  land  have  also 
been  looked  upon  as  being  derived  from  collective  ownership. 
Thus  in  Sweden  the  alienation  takes  place  before  the  "Thing"  or 
popular  assembly;  the  hundred er  proclaims  the  sale  and  the  in- 
vestiture for  the  benefit  of  the  grantee,  excepting  that  the  rela- 
tives have  a  right  to  petition  for  a  repurchase  within  six  weeks.^ 

§48.  (Ill)  The  "Flurzwang"  or  rule  of  compulsory  rotation 
of  crops.  With  individual  ownership  each  one  cultivates  his 
land  as  he  pleases;  under  a  community  system  certain  methods 
of  cultivation,  certain  rotations  of  crops  are  obligatory;  regula- 
tions settle  the  period  for  agricultural  labors  (hay-making,  harvest, 
vintage).  The  rights  of  permanent  and  rich  pasture,^  of  commons, 
and  of  pasture  on  waste  land,"^  which  belonged  to  the  members  of 
the  community  and  allowed  them  to  drive  their  cattle  upon  one 

^  "Nachbarlosung,"  "Marklosung"  in  Germany;  "chefaa"  among  the 
Arabs.  The  Code  of  Montenegro  binds  the  owner  who  wishes  to  sell  his 
land,  1st,  to  the  members  of  the  phratria  ("brastvo")  according  to  the  order 
of  their  relationship;  2d,  to  the  members  of  the  tribe  ("pleme")  in  the 
following  order:  adjacent  owners,  inhabitants  of  the  same  village,  members 
of  the  tribe.  —  Cj.  "Cod.  Just.,"  " de  contr.  emt.,"  4, 38, 14  (in 391) ;" N.  R.  H.," 
1896,  648;  "Cod.  Just.,"  11,  55  ("metrocomia;");  Terrat,  "Retraits  en  Dr.  Fr.," 
1872. 

2  Cf.  "Genesis,"  xxiii  (purchase  of  a  piece  of  land  by  Abraham). 

^  The  right  of  permanent  and  rich  pasturage  is  exercised  over  unoccupied 
meadow  lands,  pastures  and  woods  in  the  acorn  season ;  it  only  exists  among 
the  community  inhabitants  of  the  parish,  whereas  pasture  on  waste  lands, 
wliich  affects  lands  not  enclosed  witliin  walls  or  hedges  and  stripped  of  their 
harvests,  occurs  within  the  parish  or  else  outside  of  it  between  one  parish  and 
another.  It  is  in  this  last  case  especially  that  it  is  rather  qualified  as  rights 
of  commons:  Ragueau  and  Lauriere,  "Glossaire  du  Dr.  Fr.,"  see  "Paturage"; 
Ferriere,  "Diet,  de  Droit,"  see  "Paturage"  (and  authors  there  cited);  Loysel, 
"Inst.  Cout.,"  no.  241  et  seq.;  Denisart.  see  "Paturage";  Guyot,  "Repert.," 
see  "Paturage"  and  " Vaine-Pature "  ('Ord."  of  March  30,  1738);  Glasson, 
"N.  R.  H.,"  1891,  p.  475;  Bluntschli,  "D.  Privatrecht,"  §  88,  2;  Chaisemartin, 
op.  cit.,  p.  173;  Heusler,  op.  cit.,  II,  53. 

*  The  provisions  of  the  French  Customs  on  the  subject  of  rights  of  com- 
mons and  of  pasture  on  waste  lands  varied  greatly:  some  showed  themselves 
favorable  and  were  thus  connected  with  the  old  law,  others  yielded  to  more 
modern  tendencies  in  admitting  the  right  of  enclosure  and  limiting  pasture 
on  waste  lands  to  lands  that  were  absolutely  uncultivated  and  requiring  some 
title,  or  "possession,  or  only  seeing  in  it  a  mere  toleration:  "Montargis," 
4,  1;  "Lorraine,"  14,  23;  "Sens,"  146;  "Auxerre,"  260;  "Melun,"  302; 
"Chalons,"  267;  "Bourgogne,"  13,  4;  "Bar,"  205.  As  a  general  thing, 
some  title  was  necessary  in  order  to  have  the  right  of  commons.  Nor  did 
the  Customs  agree  upon  the  number  of  animals  that  could  be  sent  to  the 
pasture;  sometimes  there  was  no  limit,  sometimes  the  limit  corresponded 
with  the  extent  of  the  lands  that  a  man  possessed  that  were  subject  to  waste 
land  pasture. 

44 


Topic  2]  ORIGIN   OF   OWNERSHIP  [§  50 

another's  lands,^  could  only  be  exercised  under  these  conditions. 
In  order  to  escape  from  these  rights  land  was  placed  under  a 
prohibition  or  enclosed  as  a  warren;  but  the  old  French  law 
only  authorizes  owners  to  place  a  portion  of  their  lands  under  the 
prohibition,  one-fifth,  for  example,  according  to  the  "Coutume 
du  Boulonnais,"  Art.  131.  The  Law  of  September  28,  1791,  re- 
leases all  real  property  from  this  servitude,  which  is  injurious  to 
agriculture,  by  allowing  all  lands  to  be  enclosed.^ 

§49.  (IV)  The  Rights  of  Commons  ("Gemeindegiiter"  in 
Germany,  "Allmends"  in  Switzerland).  —  Following  the  bar- 
barian invasions  there  is  often  some  question  in  deeds  registered 
in  France  of  "communia,  silvse  et  pascua,"  property  left  to  the 
common  enjoyment  of  the  inhabitants  of  the  village.^  A  domain 
is  only  granted  with  the  rights  of  commons  which  are  a  necessary 
part  of  it.  Sometimes  the  inhabitants  are  not  bound  to  pay  any 
quit-rents  for  wood  ("lignaritia")  and  for  pasture  ("pastio"); 
in  this  case  the  rights  of  commons  are  obviously  a  trace  of  col- 
lective ownership,  which  has  been  restricted  to  certain  kinds  of 
property  most  like  those  which  were  first  subjected  to  it.  Some- 
times, on  the  contrary,  a  quit-rent  is  due  to  the  great  landowner; 
the  rights  of  commons  are  a  portion  of  the  "dominicum";  they  are 
contrasted  with  the  "foresta,"  the  use  of  which  he  has  reserved 
for  himself. 

§  50.  "Allmends,"  or  Swiss  rights  of  commons,  are  to  a  great 
extent  the  remains  of  the  old  agrarian  system.     In  those  towns 

'  Laurihre  justifies  the  right  of  pasture  on  waste  lands  by  means  of  two 
motives  in  which  the  modern  spirit  malces  its  appearance:  1st.  Without  this 
right  the  cattle  of  those  who  have  no  land  would  perish,  which  would  be  a 
pernicious  thing  for  the  State.  2d.  As  soon  as  the  products  are  removed  the 
land,  owing  to  a  sort  of  "jus  gentium,"  becomes  common  to  all  men,  rich  and 
poor;  the  right  of  pasture  on  waste  lands  cannot  be  granted,  cannot  be  alien- 
ated, and  cannot  be  lost  by  prescription,  in  the  same  way  as  the  right  of 
gathering  acorns  and  of  using  the  water  of  public  rivers:  Loysel,  "Inst. 
Cout.,"  no.  242. 

2  Following  the  Edicts  of  July,  1768  (Franche-Comt4),  March,  1769  (Cham- 
pagne), May,  1771  (Hainaut  and  Flanders),  the  Law  of  Sept.  28  to  Oct. 
6,  1791,  1,  4,  allows  every  landowner  to  enclose  his  inheritance.  Cf.  Civil 
Code,  Art.  647.  This  law  only  upholds  pasture  on  waste  land  if  it  is  based 
upon  a  title  or  upon  immemorial  possession,  and  the  right  of  commons 
only  if  it  is  based  upon  a  title  or  upon  a  possession  authorized  by  laws  and 
customs.  The  Law  of  July  9,  1889,  abolished  rights  of  commons  (exercised 
without  giving  indemnity,  except  when  they  have  been  conferred  for  a  con- 
sideration), and  pasture  on  waste  lands  (except  when  its  continuance  was 
asked  for  within  a  year).  Cf.  the  Enclosure  Acts  of  1801,  1845,  and  1876  (39 
and  40  Vict.,  c.  56). 

*  These  "communia"  aro  not  possessions  jointly  held  (for  example,  as  the 
result  of  an  inheritance),  were  it  not  for  which  fact  the  "aprisio"  would  not 
be  tolerated. 

45 


§  50]  INTRODUCTION   TO    PRR'ATE    IA.W  [Intro. 

where  some  of  these  still  exist,  the  citizens,  to  the  exclusion  of  the 
"Beisassen,"  or  mere  inhabitants,  have  a  right  to  them  in  their 
quality  of  descendants  of  families  who  have  had  the  enjoyment 
of  them  from  time  immemorial.  They  have  three  things :  the  for- 
ests, the  meadow-land  or  mountain  sides,  and  the  fields  ("  Wald," 
"Weide,"  "Feld"),  that  is  to  say,  wood  for  burning  and  wood  for 
building,  the  right  to  pasture  their  flocks  upon  the  common  pas- 
ture, and,  finally,  a  certain  quantity  of  arable  land  (a  half  "hec- 
tare" at  Stanz).  Sometimes  these  rights  are  no  longer  enjoyed; 
the  common  property  is  leased  out  and  its  products  are  distrib- 
uted among  the  interested  parties.  In  the  partition  of  these 
products  this  principle  is  followed:  to  each  one  according  to  his 
needs,  which  is  practical  and  just  so  long  as  the  members  of  the 
community  are  equally  poor;  but  as  soon  as  there  are  rich  ones 
they  gain  an  advantage.  In  Uri  the  man  who  possesses  big  chalets 
receives  wood  for  building  and  burning  in  large  quantities;  the 
commoner  who  lives  with  somebody  else  only  has  two  saplings. 
The  man  who  has  no  cattle  cannot  use  the  mountain  side. 

§51.  Feudalism  and  Rights  of  Commons. — The  lords  could 
hardly  fail  to  dispute  with  the  inhabitants  of  the  villages  the 
ownership  of  their  rights  of  commons.  The  German  peasant 
complains:  "The  lords  seize  by  force  fields,  rocks,  waters,  and 
forests;  they  would  gladly  take  from  us  the  air,  —  the  air,  which 
is  common  property;  they  would  take  the  sun  from  us,  —  even 
the  wind  and  the  rain."  In  France  the  Ordinances  of  the  six- 
teenth and  the  seventeenth  centuries  show  us  the  lords  using 
violence  and  inventing  false  titles  in  order  to  overcome  the  re- 
sistance of  the  communities.  They  pretend  that  the  communities 
owe  them  debts  in  order  to  compel  them  to  sell  their  property; 
sometimes  the  debts  really  exist.  The  alienations  often  took 
place  at  prices  that  were  a  mockery.  The  Ordinances  prohibited 
them  or  required  the  authority  of  the  king.  At  the  same  time  the 
regulations  affecting  the  rights  of  user  which  the  communities 
formerly  made  freely,  had  to  be  ratified  by  the  tribunals.^    The 

1  The  claims  of  the  lords,  according  to  our  old  authors,  did  not  go  further 
back  than  the  reign  of  Francis  I,  a  period  when  the  nobihty  acquired  habits 
of  luxury.  "Ord."  of  April,  1567;  of  Blois,  284;  1629,  206;  Declaration  of 
June  22,  1659;  Edict  of  April,  1667  {Isamhert,  XVIII,  187);  Picot,  "Hist, 
des  Etats  Gen.,"  Ill,  329;  V,  79.  Rights  of  commons  could  not  be  dis- 
trained upon  for  the  debts  of  the  inhabitants:  "Arr.  de  la  Cour  des  Aides," 
April  23,  1651("J.  des  Audiences,"  I,  vii,  1);  Denisart,  see  "Communaute 
d'Habitants"  (Edict  of  April,  1683).  Adjudications  with  regard  to  leasing 
were  made  before  the  steward  (1689;  Isambert,  XX,  77);  Houard,  "Diet, 
de  Dr.  Norm.,"  see  "Commune." 

46 


Topic  2]  ORIGIN   OF  OWNERSHIP  [§  52 

intervention  of  the  authority  of  the  king  did  not  prevent  doc- 
trinal discussions  and  lawsuits  between  lords  and  communities,  — 
lawsuits  and  discussions  which  affected  not  only  the  rights .  of 
commons,  properly  so  called,  but  rights  over  waste  and  unoccu- 
pied lands. 

§  52,  Theory  of  the  Feudists.  —  The  feudists  regarded  the 
rights  of  commons  as  a  creation  of  the  lords.  At  the  time  of  the 
establishment  of  feudalism  the  forests,  marshes,  and  uncultivated 
lands  could  not  belong  to  the  inhabitants  because  the  latter  were 
for  the  most  part  in  a  state  of  serfdom;  they  were  the  property 
of  the  lords-justices,  who  must  have  granted  the  enjoyment  of 
them  to  the  inhabitants  so  as  to  enable  them  to  feed  their  cattle 
and  cultivate  their  holdings.  There  was  no  need  to  give  them  the 
ownership,  and  it  was  not  done  as  a  general  thing.  Thus  the  lords 
had  the  right  of  division;  that  to  say,  they  could  modify  and  make 
new  regulations  with  regard  to  a  right  of  user  which  had  been 
granted;  these  regulations,  which  they  made  at  a  very  early  time, 
did  not  result  in  changing  the  inhabitants  into  owners.  There 
was  no  special  reason  why  these  regulations  should  be  opposed  to 
the  lords  practising  the  right  of  restriction;  that  is  to  say,  taking 
back  for  themselves  two-thirds  of  the  commons  and,  generally,  only 
leaving  one- third  to  the  inhabitants;  but  this  third  the  inhabitants 
held  as  owners.  This  was  only  done  in  the  eighteenth  century. 
By  this  means  the  lord  escapes  from  joint  possession,  for  the 
grant  which  he  has  made  has  not  deprived  him  of  the  right  of  user; 
he  exercises  this  right  jointly  with  the  inhabitants;  as  no  one  is 
bound  to  remain  in  a  state  of  joint  possession,  he  may  demand 
partition,  and  then  in  his  quality  of  owner  he  receives  a  larger 
share  than  the  commoners;  the  latter  gain  in  strength  what  they 
lose  in  extent;  they  were  only  users,  but  now  they  are  owners.  As 
to  property  of  which  he  had  abandoned  the  ownership  and  not 
the  user  to  the  inhabitants,  a  distinction  was  made:  if  this  prop- 
erty were  acquired  for  a  consideration  or  on  condition  of  the  pay- 
ment of  a  quit-rent,  the  lord  could  have  no  claim  over  it;  had  it 
been  granted  gratuitously,  the  lord  was  authorized  to  practise 
the  "triage";  that  is  to  say,  to  take  one-third  as  owner,  unless  the 
two-thirds  which  remained  were  insufficient  for  the  needs  of  the 
inhabitants.  The  grant  was  considered  as  being  gratuitous  when- 
ever the  inhabitants  were  not  held  bound  to  pay  any  rent  and 
quit-rent.  The  Ordinances  of  August,  1G69,  25,  4,  affecting 
waters  and  forests,  established  this  right  of  "triage,"  and  for  the 

47 


§  52]  INTRODUCTION   TO    PRIVATE    L.\W  [Intro. 

preservation  of  forests  instituted  the  fourth  in  reservation  in  all 
rights  of  commons.^ 

§  53.  Theory  of  the  Romanists.  —  The  Romanists,  who  were 
the  supporters  of  royalty  in  its  fight  against  the  lords,  maintained 
that  the  rights  of  commons  existed  previous  to  feudalism.  The 
Roman  laws  made  mention  of  them.  They  were  presumed  to  be- 
long to  the  king,  and  the  lords  were  only  supposed  to  have  received 
their  fiefs  upon  condition  of  preserving  for  the  inhabitants  the  user 
of  the  rights  of  commons  which  appertained  to  the  fiefs.  They 
brought  out  the  odious  part  played  by  the  lords  in  repudiating 
grants  that  might  have  been  believed  to  be  absolute,  all  the  more 
so  as  the  fact  that  they  were  gratuitous  had  not  been  established, 
but  was  merely  presumed;  the  lord  had  often  been  indemnified  or 
else  there  had  been  a  first  restriction  and  the  inhabitants  had  lost 
the  documents  which  established  these  facts;  advantage  was  taken 
of  this  to  strip  them.  If  one  looked  upon  the  rights  of  user  as 
servitudes  "jura  in  re  aliena,"  the  owner  of  the  servient  tenement 
had  no  right  to  free  his  piece  of  land  by  dispossessing  the  holder 
of  the  servitude. 

§  54.  The  Revolutionary  Law  put  an  end  to  the  controversy  by 
two  radical  provisions:  the  overthrow  of  the  seigniorial  rights  and 
the  abolition  of  the  rights  of  commons.  —  The  lords  were  forbid- 
den to  appropriate  waste  and  unoccupied  lands;  the  Old  Regime 
saw  in  this  right  an  indemnity  for  the  maintenance  of  foundlings 
and  the  rendering  of  justice;  now  that  these  charges  had  becomes 
incumbent  upon  the  State,  the  rights  no  longer  had  any  basis. 
"Triage"  was  abolished  in  1790.  In  1792,  communes  showing 
themselves  to  be  entitled  by  long  possession  were  authorized  to 
reclaim  rights  and  property  in  spite  of  the  adverse  possession  of 
their  previous  lord,  unless  the  latter  could  prove  that  he  had 
acquired  this  property  by  showing  an  authenticated  deed.  At  the 
same  time  unoccupied  lands  were  turned  over  to  the  communes; 
the  lords  could,  however,  establish  that  they  had  a  right  over 
them  by  means  of  title-deeds  or  by  possession  that  had  lasted ' 
forty  years.^ 

1  Over  the  other  two  thirds  the  lord  kept  the  rights  of  justice;  "triage" 
took  place  in  court.  The  king  and  his  assigns  (mortgagors  and  younger 
branches  of  his  house  to  whom  he  had  made  grants)  could  not  demand  this 
right  (Edict  of  1667). 

2  Declarations  of  April  13-20,  1791  (I,  7);  March  1.5-28,  1790  (II,  30); 
Aug.  28  to  Sept.  14,  1792.  The  Declaration  of  April  13-20,  1791,  I,  7:  "The 
right  ...  of  appropriating  waste  and  abandoned  or  barren  and  devastated 
lands,  uncultivated  or  unoccupied  possessions,  desert  lands,  common  passage- 

48 


Topic  2]  ORIGIN    OF   OWTSTERSHIP  [§  55 

§  55.  Partition  of  Rights  of  Commons.  —  The  Revolution  did 
not  deem  it  sufficient  to  sanction  the  theory  of  the  Romanists;  it 
must  needs  do  away  with  the  rights  of  commons  themselves  by 
changing  them  into  private  ownership  by  means  of  a  partition 
among  the  inhabitants.  Legally,  this  provision  was  unjustifi- 
able, rights  of  commons  being  the  property  of  the  commune,  not 
of  its  inhabitants;  it  was  not  jointly  possessed  property  belonging 
to  the  latter  as  individuals  and,  consequently,  subject  to  partition; 
it  was  the  property  of  the  legal  person.  But  this  operation,  which 
could  be  legally  contested,  presented  economical  advantages; 
there  was  seen  in  it  a  means  of  giving  some  value  to  uncultivated 
lands;  this  was  enough  to  make  people  believe  that  they  were 
authorized  to  dispossess  the  commune  in  the  interest  of  its  in- 
habitants; the  future  generation,  the  only  one  which  can  com- 
plain, will  find  in  the  greater  value  put  upon  land  an  indemnity 
for  what  it  has  lost.  Furthermore,  the  Old  Regime  had  preceded 
the  Revolution  in  this  direction;  from  the  eighteenth  century 
partitions  were  numerous;  they  took  place  by  households,  and 
they  were  sometimes  partitions  of  the  right  of  enjoyment  with- 
out any  quit-rent  to  be  paid  to  the  commune  and  sometimes  par- 
titions of  ownership  with  the  obligation  to  pay  a  quit-rent  to  the 
commune.^ 

The  Law  of  August  14,  1792,  being  inspired  by  these  economical 
ideas,  and  especially  by  political  ideas,  decreed  that  the  partition 
of  rights  of  commons  (excepting  in  forests)  was  compulsory;  it 
proposed  to  decrease  the  number  of  possessions  in  mortmain  and 
to  increase  the  number  of  owners  who  should  be  supporters  of  the 
new  ideas. 

The  Law  of  June  10,  1793,  made  partitioning  subject  to  a  vote; 
one-third  of  the  inhabitants  of  both  sexes  of  the  commune  could 

ways  and  waste  lands  for  public  pasture  shall  no  longer  exist  for  the  benefit 
of  the  former  lords."  Our  old  authors  distinguish  in  a  rather  vague  way 
between  rights  of  commons,  which,  properly  speaking,  were  lands  that  were 
neither  appropriated  nor  subject  to  the  enjoyment  in  common,  waste  and 
unoccupied  lands,  and  uncultivated  lands  (from  the  Greek,  "ip-qixos"). 
They  were  ordinarily  conferred  as  possessions  without  an  owner  upon  the 
lord  justice  (Loysel,  "Inst.  Gout.,"  277),  unless  the  communities  had  a  deed 
of  grant,  or  even  an  immemorial  possession;  but  there  was  a  good  deal  of 
difficulty  over  this  last  point.  Cf.  Isambert,  Table,  see  "Terres  vaines"; 
Glasson,  op.  cit.,  p.  472.  In  the  existing  law  lands  without  an  owner  belong 
to  the  State;  rights  of  commons  have  an  owner,  this  being  the  Gommune. 

'  Partitions  authorized:  Edict  of  June,  1762;  Order  of  the  Gouncil,  1771, 
1773,  1777  (Auch  and  Pau);  Edict  of  Jan.,  1774  (Burgundy) :  Order  of  the 
Gouncil,  Apr.,  1774  (Alsace);  "L.  pat.,"  March  27,  1777  (Flanders);  "L. 
pat.,"  Nov.  13,  1779,  and  Order  of  the  Gouncil,  Feb.  25,  1779  (Artois). 

49 


§  55]  INTRODUCTION   TO   PRIVATE   LAW  [Intro. 

claim  it.  In  this  case  it  did  not  take  place  by  households  but 
"per  capita."  The  application  of  these  provisions  did  away  with 
the  protests  that  had  been  made  in  various  parts  of  France.  This 
law  was  called  an  agrarian  law.  •  Pastures  being  a  necessary  part 
of  the  domain  where  the  raising  of  cattle  is  an  important  indus- 
try, the  owners  were  being  ruined,  they  were  being  despoiled;  it 
would  have  been  almost  the  same  thing  to  take  away  their  do- 
mains from  them.  Pastures  were  being  taken  away  from  those 
who  had  cattle,  to  be  given  to  those  who  had  none;  for  example, 
to  servants,  or  even  to  the  proletariat,  which  was  always  formed 
by  this  minority  of  the  third  of  the  inhabitants  that  was  necessary 
before  a  partition  could  take  place.  Another  iniquity :  landowners 
domiciled  outside  of  the  commune  found  themselves  excluded 
from  the  partition.  —  In  the  face  of  these  protests  a  halt  was 
called;  the  ruin  of  communal  ownership  was  not  carried  out;  after 
the  9th  Ventose,  year  XII,  partitions  were  no  longer  permitted. 
There  still  remained  about  four  million  "hectares"  of  community 
property.^ 

C.    FAMILY    JOINT    OWNERSHIP 

§  56.  Family  Joint  Ownership  (India,  Greater  Russia,  Slavs 
of  the  South,  Ossetes,  Kabyles,  etc.,  and  formerly  Greece  and 
Rome).^  The  oldest  man  administers  the  common  patrimony, 
distributes  the  work,  sells  the  harvests,  signs  contracts,  and 
represents  the  family  outside,  at  law,  or  in  its  relations  with  the 
treasurer.  He  is  only  exempted  in  case  of  incapacity  known  to 
all  (illness,  old  age).  He  has  no  right  to  alienate  the  lands  of 
the  family  without  the  consent  of  its  adult  members,  because  the 
family  is  the  true  owner  of  this  land.  For  the  same  reason  the 
head  of  the  family  cannot  dispose  of  his  property  by  will.  At  his 
death  no  succession,  properly  speaking  in  the  modern  sense  of 
the  word,  takes  place;  a  new  administrator  takes  the  place  of  the 

1  Law  of  21  Prair.,  year  IV  (June  9,  1796);  Law  of  2  Prair.,  year  V; 
Lav,'  of  9  Vent.,  year  Xlt;  "Code  Forestier,"  Art.  92;  Law  of  July  18,  1837, 
and  Opinion  of  the  State  Council,  March  16,  1838.  The  Financial  Law  of 
April  28,  1816,  ordered  the  giving  back  to  the  Commune  of  rights  of  commons 
not  yet  sold. 

2  Kovalewsky,  "Le  Regime  ^conomique  de  la  Russie,"  1898,  p.  290 
("N.  R.  H.,"  1890,  464).  —  "Le  Jugement  de  Libussa"  (Slav  poem);  Sumner 
Maine,  "Et.  sur  I'Hist.  du  Droit,"  p.  473.  —  Among  the  Jews  once  in  fifty 
years  (Year  of  Jubilee)  all  alienations  are  revoked  and  each  one  takes  back 
his  own  property;  that  is  to  say,  the  property  comes  back  to  the  family,  for 
it  is  rarely  that  the  original  seller  is  found  to  be  alive.     C/.  "Ruth,"  iv. 

50 


Topic  2]  ORIGIN   OF   OWNERSHIP  [§57 

one  who  has  gone;  and  it  is  ordinarily  his  oldest  son  or  his  brother. 
The  domain  is  not  partitioned;  it  is  indivisible  just  as  it  is  inalien- 
able. When  partition  is  allowed  at  the  request  of  brothers  or  sons 
it  is  because  the  community  is  being  disintegrated.  The  profits 
arising  from  some  outside  industry  even  belong  on  principle  to  the 
family;  thus  in  India  the  family  has  a  share  in  the  profits  which 
are  obtained  from  the  trade  of  dancing-girls,  because  the  education 
of  these  girls  has  taken  place  at  its  expense.  However,  it  is  in  this 
direction  that  individual  ownership  is  seen  to  make  its  appear- 
ance; a  portion  of  these  profits  remains  the  property  of  the  man 
who  has  obtained  them;  in  Montenegro  booty  obtained  in  war 
belongs  to  the  soldier  (cf.  the  "peculium  castrense"  in  Rome). 
Woman,  who  is  not  strong  enough  to  defend  the  family  inheritance 
with  arms,  as  is  often  necessary,  is  never  the  head  of  the  family; 
she  does  not  inherit  the  land.  W^hen  she  marries  she  receives  a 
marriage  portion,  but  this  is  very  small  and  consists  of  a  few 
movable  objects.  The  disability  under  which  a  woman  is  placed 
with  respect  to  possessions  in  land  often  survives  the  overthrow  of 
family  communities,  and  only  becomes  less,  little  by  little,  in  the 
restricted  group  that  succeeds  these  communities. 


D.    REMAINS    OF    FAMILY    JOINT    OWNERSHIP 

§  57.  (I)  Rules  of  Successions.  —  1st.  Distinction  between 
heirs  and  successors  to  property.  There  are  no  heirs  excepting 
the  relatives,  —  that  is  to  say,  the  family;  "Deus  solus  heredes 
facere  potest."  The  will  can  only  appoint  successors  to  property, 
their  position  being  inferior  to  that  of  heirs.  —  2d.  Disinheriting  is 
not  possible;  this  would  be  to  deprive  the  heir  of  a  right  which 
belongs  to  him.  —  3d.  Hereditary  seisin.  At  the  death  of  the 
deceased  the  heir  is  seised  of  the  property  left  by  him;  that  is  to 
say,  he  is  invested  at  one  and  the  same  time  with  the  ownership 
and  the  possession  without  being  obliged  to  take  physical  pos- 
session of  it.  —  4th.  Women  are  excluded  from  the  succession 
for  two  reasons:  because  physically  they  are  scarcely  fit  to  be 
heads  of  families,  and  also  because  through  their  marriage  the 
property  might  pass  from  one  family  to  another.^ 

^  The  Athenian  or  Hebraic  custom  of  making  girls  heirs  in  default  of 
males  only  makes  an  exception  to  this  rule  in  order  better  to  applj-  it;  the 
girl  thus  made  an  heir  only  receives  the  inheritance  that  she  may  transfer 
it  to  the  relative  whose  duty  it  is  to  marry  her.     Cf.  "Ruth,"  iv. 

51 


§  58]  ENxRODUCTION   TO   PRIVATE   LAW  [Intro. 

§  58.  (II)  The  Classification  of  Immovable  Property  into  Per- 
sonal Belongings  and  Acquests.  The  rights  of  the  family  affect 
only  personal  belongings,  and  by  these  are  understood  posses- 
sions in  land  included  in  the  succession  of  the  relatives  (in  the 
direct  or  collateral  line).  There  is  a  desire  to  keep  these  posses- 
sions in  the  family.  The  individual  having  had  no  part  in  the 
acquisition  of  these  possessions  by  the  family  patrimony,  it  is 
perfectly  natural  that  he  should  not  have  any  right  to  dispose  of 
them,  as  he  would  have  of  possessions  which  had  been  acquired 
through  his  efforts,  his  labor  or  his  economy;  it  is  only  with  regard 
to  the  latter  that  individual  ownership  comes  into  existence  first 
of  all.  The  system  of  personal  belongings  will  be  explained  later 
on;  it  is  well,  however,  to  give  an  outline  of  it  at  this  time. 

1st.  "  Paterna  paternis,  matema  maternis."  Personal  belong- 
ings coming  from  the  paternal  line  are  to  go  to  the  paternal  rela- 
tives, those  from  the  maternal  line  to  the  maternal  relatives,  in 
such  a  way  that  in  every  succession  a  split  has  to  take  place  and 
two  shares  of  these  possessions  have  to  be  made  according  to  their 
origin.  —  2d.  The  will,  which  was  unknown  in  the  old  law,  is  in 
the  end  introduced  into  practice;  but  the  testator  is  not  free  to 
dispose  of  all  his  personal  belongings;  there  is  a  customary  reser- 
vation of  four-fifths  for  the  benefit  of  the  lineage;  almost  all  of  a 
man's  own  fortune  is  thus  found  to  be  incapable  of  being  devised 
by  will.  As  to  acquests,  the  freedom  of  devising,  which  was  abso- 
lute at  first,  in  time  came  to  be  restricted  through  the  admission  of 
a  legal  share  for  the  benefit  of  the  nearest  relatives;  but  it  is  a 
motive  of  humanity  that  justifies  this,  and  not  the  old  family 
joint  ownership. — 3d.  Gifts  "inter  vivos"  were  only  allowed  at 
first  with  the  consent  of  the  heirs  presumptive;  even  when  this 
rule  was  departed  from,  it  was  sought  to  prevent  the  donor  from 
stripping  his  heirs  by  compelling  him  to  strip  himself  during  his 
own  lifetime  (to  give  and  to  withhold  is  invalid)  and  by  requiring 
certain  formalities,  such  as  the  drawing  up  of  a  notarial  deed,  in 
order  to  make  gifts  effective.  —  4th.  Alienation  for  a  considera- 
tion was  only  tolerated  in  case  of  necessity  (sworn  poverty)  and 
with  the  consent  of  the  relatives.  The  vendor  had  to  offer  the 
property  to  his  relatives  {pre-emptio7i) ,  who  had  the  right  to  buy 
it  in  preference  to  everybody  else;  unless  this  offer  were  made,  the 
sale  was  invalid  as  against  them.  The  sale  came  to  be  declared 
valid,  but  the  relatives  were  allowed  the  right  of  exercising  the 
repurchase  by  a  person  of  the  same  lineage;  that  is  to  say,  to  buy 

52 


Topic  2]  ORIGIN   OF  OWNERSHIP  [§  GO 

back  for  themselves  the  property  which  had  been  sold  upon  con- 
dition of  indemnifying  the  original  purchaser;  if  they  remained 
silent  for  a  year  and  a  day  the  sale  could  not  be  contested. 

§  59.  Family  Institutions  in  Our  Period.  —  Objectionable  at- 
tempts are  being  made  to  restore  family  joint  ownership,  which 
has  been  eliminated  from  modern  law.  —  1st.  Le  Play's  stock 
family  would  seem  to  be  an  intermediate  type  between  the  unstable 
modern  family  and  the  old  family  community.  The  freedom  to 
bequeath  by  will  that  is  granted  to  the  head  of  the  family  should, 
according  to  the  partisans  of  this  reform,  serve  only  as  a  realiza- 
tion of  that  type  to  whose  creation  our  modern  laws  are  opposed; 
the  compulsory  partition  which  these  laws  require  disorganizes 
the  family,  takes  the  authority  from  its  head,  and  splits  up  the  in- 
heritance.-—  2d.  The  "  anerbe  "  or  privileged  heir  of  the  German 
law,  who  keeps  the  paternal  house  and  domain  by  paying  a  rent 
to  his  fellow  heirs,  is,  in  a  succession  upon  intestacy,  in  about  the 
same  situation  as  was  the  eldest  son  in  our  old  law,  and  as  the 
testamentary  heir  would  be  under  Le  Play's  system.  —  3d.  The 
American  homestead  or  portion  of  the  domain  which  cannot  be 
disposed  of,  and  which  cannot  be  distrained  upon,  recalls  the 
ancient  condition  of  the  dwelling  house  and  the  enclosure  that 
was  connected  with  it.^ 

§  60.  (Ill)  Rules  of  Feudal  Ownership.  —  Feudalism  is  not 
only  a  political  system,  it  is  also  an  agrarian  system.  It  was 
superimposed  upon  private  ownership  and  collective  ownership. 
The  rural  commune,  wherever  it  existed,  was  made  subservient 
to  this  system.  The  free  possessors  of  the  soil  became  serfs;  the 
lord  took  for  himself  a  portion  of  the  land.  At  the  same  time  in- 
dividual ownership  disappeared  or  became  an  exception;  it  gave 
place  to  tenure.  Each  piece  of  land  had  two  masters:  1st.  The 
lord,  who  had  the  eminent  domain,  the  dominion,  and  who  could 
demand  from  the  tenant  services  and  quit-rent.  2d.  The  vassal  or 
copyholder,  the  tenant,  who  had  the  beneficial  ownership,  —  that 
is  to  say,  the  use,  the  enjoyment,  and  even,  to  an  extent  which 
varied  according  to  different  periods,  the  disposal  of  it.  His  right 
is  hereditary,  but  the  heir  has  to  pay  a  transfer  tax  to  the  lord; 
his  right  may  be  sold,  but  the  lord  collects  a  toll  as  the  price  of 

^  On  the  family  of  the  Melongas  in  the  Lavedan  cf.  "Ouvriers  Europ(5en," 
I,  55;  Le  Play,  "  La  R6forme  socialc,"  I,  320,  ed.  1881 .  Texas  in  1839  was  the 
first  State  to  organize  the  homestead.  Cj.  Federal  Act  of  18G2;  "Stat. 
Vidal,"  "Ac.  leg.  Toulouse,"  1887,  p.  63,  and  the  recent  works  of  Bureau, 
Corniquet  and  Vacher. 

53 


§  60]  INTRODUCTION   TO    PRIVATE    LAW  [Inteo. 

giving  his  consent,  unless  he  should  prefer  to  take  the  bargain  for 
himself  by  buying  off  the  purchaser  {feudal  repurchase).  The  his- 
tory of  feudal  ownership  is  that  of  the  progressive  enfranchise- 
ment of  the  soil;  the  tenant  progresses  little  by  little  towards  free 
ownership.  In  France  the  Revolution,  by  abolishing  all  feudal 
dues,  made  the  peasant  the  only  master  of  his  own  land. 

§  61.  (IV)  The  Process  of  Evolution  towards  Individual  Owner- 
ship only  took  place  with  difficulty,  as  we  have  seen,  through 
a  series  of  reactions  against  the  commune,  against  the  family,  and 
against  the  lord.  The  principal  cause  of  this  change,  which  is  of 
an  economic  nature,  had  to  accommodate  itself  to  circumstances, 
to  agriculture,  and  to  political  and  social  conditions.  Individual 
ownership  is  the  best  means  of  placing  a  value  upon  land,  —  let 
us  add,  in  a  society  like  ours.  Occupation  has  only  created  this 
value  as  a  great  exception,  for  occupation  is  ordinarily  collective 
(booty  of  war,  the  establishing  of  a  colony) ;  even  when  it  is  indi- 
vidual it  assumes  the  consent  of  the  community  and  only  has  a 
temporary  effect;  the  cleared  land  is  only  acquired  by  the  one 
who  has  brought  it  to  life,  according  to  the  language  of  the  Koran, 
until  it  is  used  up;  then  he  retires  and  the  new  occupant  is  au- 
thorized to  take  possession  of  it.  The  progress  made  by  agricul- 
ture tends  towards  absolute  appropriation,  just  as  it  seems  to 
exist  in  the  charters  of  the  Frankish  period,  where  one  becomes 
owner  by  taking  possession  ("aprisio,"  "porprisio,"  "bifang"), 
by  clearing  the  land  ("Neubruch"),  and  especially  by  the  cus- 
tomary mode  of  clearing,  —  uprooting  the  stumps  ("exartum"). 
That  which  one  has  acquired  by  one's  labor  ("quod  sudore  ac- 
quisivi")  is  acquired  on  the  common  land;  this  mode  of  appropri- 
ation, which  is  supposed  to  be  a  very  early  one,  is,  moreover, 
rather  rarely  met  with;  feudalism  only  tolerates  it  with  the  con- 
sent of  the  lord,  just  as  in  the  previous  period  it  was  only  tolerated 
with  the  consent  of  the  communities.  Thus  individual  ownership 
is  from  the  historical  point  of  view  derived  from  collective  owner- 
ship, and  the  rights  of  the  family  no  doubt  contributed  a  great  deal 
to  strengthen  those  of  the  individual. 


54 


Topic  3] 


ORIGIN    OF   THE    STATE 


[§62 


Topic  3.  Origin  of  the  State 


I.   General  Remarks 

§  62.  The  Society  and  the  State. 

§  63.  Organic  Theory  of  the  State. 

§  64.  Locahzation  of  Functions. 

§  65.  Changes  in  Structure. 

§  66.  Interdependence  of  the  Parts. 

§  67.  Organs  and  Apparatus. 

§  68.  PoUtical  Forms. 

§  69.  Personal  Government. 

§  70.  Social  Distinctions.  Classes  and 
Castes. 

§  71.  How  are  Societies  Formed,  De- 
veloped, and  Reproduced,  and 
how  do  they  Die? 

§  72.  The  Factors  of  Social  Evolution, 

§  73.  Social  Laws. 

II.   Elementary  and  Composite 

Societies 

§  74.  Primitive  Societies. 

§  75.  The  Clan  or  the  "Gens.", 


§  76.  The  Maternal  "Gens"  among 
the  Iroquois. 

§  77.  The  Celtic  Clan. 

§  78.  The  Roman  "Gens." 

§  79.  The  "Chentele." 

I  SO.  The  Germanic  "Sippe." 

§81.  The  Germanic  Following. 

§  82.  The  Tribe. 

§  83.  The  Gallic  Towns  and  the  Ger- 
manic Towns.  PoUtical  Divi- 
sions. 

§  84.  Classes  of  Population. 

§  85.  The  Political  Function. 

§  86.  The  Political  Organs. 

§  87.  The  Popular  Assembly. 

§  88.  Senate. 

§  89.  Kings  or  Chiefs. 

§  90.  Composite  Societies. 

§91.  The  Ancient  Town  and  its 
Revolutions. 


I.       GENERAL     REMARKS 

§  62.  The  Society  and  the  State.  —  In  saying  "  society  "  we 
mean  a  group  of  men  and  the  collective  action  of  this  group  in  a 
common  interest.  This  co-operation  may  be  temporary  or  lasting, 
voluntary  or  compulsory,  imposed  by  a  higher  authority  or  spon- 
taneous, or  it  may  take  place  because  of  urgent  necessity.  In 
every  case  collaboration  cannot  exist  without  a  certain  amount  of 
organization,  however  rudimentary  it  may  be  supposed  to  be;  in 
order  that  people  may  act  in  concert  it  is  indispensable  that  there 
should  be  an  understanding  and  discipline,  and  that  each  one  should 
adhere  to  his  task  and  should  be  able  to  count  upon  the  others 
carrying  out  theirs.  Almost  everywhere  a  coercive  apparatus  or 
a  government  has  become  established  in  order  to  make  sure  of  a 
co-operative  organization,  for  the  advantages  which  it  offers  are 
so  great  that  men  have  not  thought  that  they  were  buying  them 
too  dearly  by  paying  for  them  with  their  independence. 

It  is  this  coercive  apparatus,  this  organ  that  carries  out  collec- 
tive action,  which  is  called  the  State  or  Government;  but  the 
function  which  this  organ  fulfills  is  also  designated  by  the  name 
of  the  State;  in  its  secondary  meaning  the  State  is  the  society 
looked  upon  in  its  political  function.     This  function  cannot  be 

55 


§  62]  INTRODUCTION   TO   PRIVATE   LAW  [  Intro. 

precisely  defined,  for  it  has  varied  and  still  varies  according  to 
the  society  and  according  to  the  period.  The  jurist  may  attempt 
to  give  us  this  definition  at  a  certain  time  in  order  to  build  up  a 
logical  system  of  public  law.  The  historian  could  not  do  so,  be- 
cause institutions  are  not  seen  by  him  in  their  fixed  state,  but  in 
process  of  changing.  The  political  function  has  its  "processus"  of 
evolution  just  as  has  the  family  or  ownership.  There  are  societies 
where  collective  action  only  takes  place  intermittently  and  can 
be  reduced  to  almost  nothing,  —  a  struggle  against  the  outside 
enemy  and  an  internal  organization  (which  is  very  crude)  for  pur- 
poses of  attack  and  defense.  The  State  in  primitive  societies  is 
often  entirely  disconnected  with  justice  and  law;  it  is  no  more  a 
reasoning  being  than  were  the  primitive  gods,  brutal  forces  of 
nature;  like  the  latter,  it  becomes  one.  jNIoreover,  the  action  of 
the  State  is,  on  the  other  hand,  very  extensive;  it  regulates  private 
life,  directs  industry,  and  presides  over  religion;  it  is  at  one  and 
the  same  time  a  church  and  an  industrial  or  agricultural  under- 
taking. The  political  function  of  society  has  a  marked  tendency 
to  develop;  but  at  the  same  time  the  division  of  labor  introduces 
into  it  departments  which  are  distinct  and  almost  independent 
of  one  another:  the  political  apparatus,  the  religious  apparatus, 
and  the  industrial  apparatus  become  separated.  The  sovereignty 
or  power  of  the  political  organ  over  the  social  body,  the  relations 
between  the  individual  and  the  State,  the  forms  of  government 
and  revolutions,  —  all  these  are  questions  which  complicate  the 
public  law  of  societies  that  are  fairly  advanced. 

§  63.  Organic  Theory  of  the  State.  —  There  are  not  lacking 
S3»stems  by  means  of  which  the  genesis  of  the  State  can  be  ac- 
counted for.  The  theory  of  divine  right  makes  human  authority 
to  flow  from  divine  authority;  this  is  a  theological  postulate.  The 
theory  of  the  social  contract  is  an  ideal  conception  derived  from 
the  systems  of  natural  law  and  opposed  to  historic  truth:  men 
only  group  themselves  together  and  submit  to  be  led  because  of 
some  external  necessity;  there  is  no  free  covenant  at  the  basis  of 
society,  but  an  external  compulsion  and  a  reaction  which  is  a  con- 
sequence of  it;  it  is  in  order  to  offer  resistance  to  outside  forces 
that  men  associate  themselves  together.^    The  organic  theory  of 

^  Fustel  de  Coulanges:  "Political  institutions  are  not  always  the  work  of 
the  will  of  one  man.  Even  the  will  of  an  entire  people  is  not  sufficient  to 
create  them.  The  human  conditions  which  give  birth  to  them  are  not  of 
those  which  the  caprice  of  one  generation  can  alter.  People  are  not  gov- 
erned because  it  pleases  them  to  be  governed,  but  because  all  of  their  inter- 

56 


Topic  3]  ORIGIN   OF  THE  STATE  [§65 

the  State  agrees  better  with  the  facts.  Human  societies,  which 
are  aggregates  of  individuals  and  of  families,  resemble  living  or- 
ganisms, which  are  aggregates  of  cells.  No  doubt  sociology  is  not 
biology,  but  they  are  similar,  and  there  are  analogies  between 
social  factors  and  biological  phenomena.  Why  not  point  out 
and  make  use  of  the  connecting  links  that  one  observes  in  order 
better  to  portray  how  societies  become  organized?  ^  In  human 
societies,  just  as  in  the  living  body,  organization  takes  place  by 
means  of  a  division  of  labor  in  the  direction  of  the  localization  of 
functions,  of  the  formation  of  organs  and  apparatus  better  and 
better  adapted  to  the  functions  which  they  fulfill,  and  of  a  greater 
and  greater  interdependence  of  the  parts. 

§  64.  Localization  of  Functions.  —  In  inferior  organisms  (pro- 
tozoa) each  part  is  at  the  same  time  stomach,  respiratory  appa- 
ratus, and  locomotive  apparatus.  Under  the  influence  of  its 
surroundings  these  functions  become  localized;  the  physiological 
division  of  work  takes  place;  one  part  becomes  the  stomach  and 
nothing  more;  another,  the  respiratory  apparatus;  and  a  third, 
the  locomotive  apparatus.  Thus  in  primitive  societies  each  indi- 
vidual hunts,  fishes,  makes  war,  builds  his  house  and  cooks  his 
bread,  whereas  in  more  advanced  society  the  population  is  divided 
into  classes,  or  even  into  castes,  —  priests,  warriors,  and  agricultur- 
ists; a  division  of  social  labor  takes  place.  The  man  who  is  in  the 
best  situation  or  the  most  fit  for  it  specializes  in  his  function. 

§  65.  Changes  in  Structure.  —  Once  the  need  has  created  the 
organ,  the  latter  adapts  itself  better  and  better  to  its  function; 
in  order  to  do  this  it  changes  its  form.  The  various  parts  of  the 
living  body,  which  all  began  by  being  simple  cells,  end  by  differ- 
ing from  one  another  to  such  an  extent  as  to  make  it  impossible 
for  them  to  replace  one  another  in  their  respective  functions;  for 
example,  the  osseus  tissue  differs  from  the  mucous,  the  nerves 
from  the  muscles.  Changes  in  structure  are  less  apparent  in  the 
case  of  the  man,  although  there  is  some  difference  between  a 
market  porter  and  a  member  of  the  Institute  of  France.  But 
they  exist,  nevertheless,  and  they  make  changes  of  profession 

ests  and  their  profound  convictions  demand  that  they  should  be.  ..."  — 
Let  us  add  that  there  is  nothing  arbitrary  about  these  convi(!tions;  they  are 
a  product,  a  result;  institutions  do  not  depend  upon  intentions,  but  upon 
circumstances. 

'  Upon  condition  that  the  establishment  of  a  simple  analogy  shall  not  be 
taken  for  a  demonstration.  The  social  factors  should  be  studied  separately 
by  themselves,  and  the  laws  which  govern  them  directly  established.  —  I 
shall  not  stop  at  the  metaphysical  objection  that  the  individual  is  an  end  in 
himself,  whereas  the  cell  is  not. 

57 


§  65]  ESTTRODUCTION   TO   PER' ATE   LAW  [Intro, 

difficult  or  even  impossible,  as  we  see  in  the  case  of  unemployed 
workmen  following  the  invention  of  a  machine. 

§  66.  Interdependence  of  the  Parts.  —  From  the  moment 
when  the  parts  of  a  living  organism  differ  among  themselves  and 
have  each  one  its  special  function  they  can  no  longer  live  isolated 
from  one  another :  cut  a  sponge  in  half,  and  each  half  will  continue 
to  live;  a  higher  animal  submitted  to  this  treatment  would  die  on 
the  spot,  and  if  you  want  another  example,  the  old  fable  of  the 
Belly  and  the  Members  is  there  to  furnish  it.  The  interdepend- 
ence between  individuals  in  our  civilized  societies  is  scarcely  less 
than  this.  A  strike  of  miners  or  bakers  deprives  us  of  fuel  or 
bread;  this  becomes  an  affair  of  the  State. 

§  67.  Organs  and  Apparatus.  —  Once  created,  the  organ  evolves 
itself  owing  to  the  action  of  its  environment  and  becomes  an  ap- 
paratus or  an  assembly  of  organs  tending  towards  some  one  ob- 
ject. Thus  the  stomach  becomes  changed  into  a  digestive  tube; 
that  which  in  the  lower  species  is  a  mere  sac  becomes  complicated 
in  the  higher  animals  and  develops  into  a  mouth  to  seize  the  food, 
a  stomach  to  digest  it,  and  an  intestine  to  extract  therefrom  the 
nutritious  juices.  Society  herself  has  her  organs  and  her  appara- 
tus: 1st.  Productive  apparatus  or  nourishing  apparatus;  this  is 
agriculture  and  industry;  they  are  localized  just  like  the  functions 
in  the  living  being,  —  for  example,  the  salt  industry  and  fisheries 
on  the  seacoast,  the  raising  of  cattle  upon  the  plains,  etc.  —  2d. 
Circulatory  apparatus;  commerce  transports  from  one  place  to 
another  agricultural  and  industrial  products,  giving  rise  to  more 
or  less  active  currents,  to  a  circulation  which  is  slow  or  rapid, 
rather  like  the  circulation  of  the  blood  in  warm-blooded  or  cold- 
blooded animals.  —  3d.  Directive  apparatus.  The  political  system 
co-ordinates  the  action  of  social  forces  in  the  same  manner  as  the 
nervous  system  does  in  the  organism. 

§  68.  Political  Forms.  —  The  political  organs  in  a  small  society 
are  three  in  number:  the  general  assembly  of  all  its  members  who 
decide  questions  of  common  interest  (moving  from  one  place  to 
another,  peace  or  war);  a  group  that  directs,  which  is  composed 
of  the  oldest  and  the  strongest;  the  assembly  bases  its  decisions 
on  the  counsel  of  the  latter;  and  a  leader,  who  is  more  influential 
than  the  others,  from  whom  the  final  resolution  will  be  due,  and  who 
will  carry  it  out.  According  as  one  or  the  other  of  these  three 
forces  prevail  the  government  will  be  a  democracy,  an  aristocracy, 
or  a  monarchy.     Modern  States  have  composite  governments, 

58 


Topic  3]  ORIGIN   OF   THE   STATE  [§  69 

which  cannot,  properly  speaking,  be  placed  in  any  one  of  these 
three  categories.  But,  whatever  the  system  adopted  may  be,  the 
political  apparatus  should  only  be  the  instrument  by  means  of 
which  the  instinctive  feelings  of  the  people  collectively  should 
act;  this  feeling  is  what  might  be  called  public  opinion,  were  not 
this  expression  ordinarily  limited  to  the  present,  whereas  we  are 
here  concerned  with  the  interests  of  the  future  as  well  as  with 
those  of  the  past,  with  the  wishes  of  existing  generations  and  of 
those  of  the  past.  The  personal  government  itself  draws  its 
strength  from  the  harmony  which  exists  between  its  action  and 
the  national  conscience. 

§  69.  Personal  Government.  —  The  idea  of  obeying  a  man 
seems  ridiculous  to  people  who  have  no  chiefs,  and  there  are  soci- 
eties of  this  nature  (the  Nicobar  Islands,  Todas,  Papuans,  Fue- 
gians).  There  are  others  who  only  have  chiefs  in  time  of  war 
(Caribbees,  Bedouins,  Chinooks,  the  Patagonians  against  the 
Spaniards  and  the  Redskins  against  the  English);  thus  Gaul  ap- 
pointed a  dictator  in  the  person  of  Vercingetorix,  in  order  to  op- 
pose the  Romans;  and,  finally,  there  are  peoples,  and  these  are 
the  most  numerous,  who  have  chiefs  in  peace  as  well  as  in  time  of 
war;  these  permanent  chiefs  are  even  often  hereditary.  —  The 
first  man  to  be  a  king  was  a  lucky  soldier,  Voltaire  has  said.  In 
fact,  it  was  personal  qualities  that  gave  their  political  power  to 
the  first  chiefs:  physical  strength  and  courage  (Bedouins  and 
Boschimans;  old  age  causes  the  loss  of  this  power,  as  is  proved  by 
the  example  of  Peleus  and  that  of  Laertes,  who  were  dethroned 
by  their  sons;  Nestor  was  an  exception,  but  this  was  phenomenal); 
age  and  the  experience  which  goes  with  it  (Caribbees  and  Dyaks 
in  Borneo);  intelligence  (the  Snake  Indians  and  the  Ostiaks); 
religious  power  (the  king  is  a  priest  or  a  sorcerer  in  Loango  and 
among  the  Amazulus;  his  special  function  is  to  overthrow  the 
enemy  by  means  of  exorcisms  and  witchcraft).  The  temporary 
head  becomes  permanent,  even  although  this  may  only  be  due  to 
continual  wars  and  the  necessity  of  being  prepared  for  any  un- 
expected attack.  Through  a  new  advance,  dynasties  come  to  be 
established;  the  office  of  chief  constitutes  a  sort  of  family  prop- 
erty ;  it  is  transmitted  from  father  to  son,  from  brother  to  brother, 
according  to  the  various  systems  that  are  applied  to  the  patri- 
mony; heredity  in  the  family  calls  for  heredity  in  the  State,  to 
say  nothing  of  the  fact  that  this  system  avoids  crises  because  the 
successor  is  appointed  beforehand.    Religion  has  given  a  consid- 

59 


§  69]  INTRODUCTION   TO    PRIVATE    LAW  [Intro. 

erable  balance  to  the  monarchic  power.  It  is  not  a  rare  thing  for 
kings  to  be  high  priests,  vicars  of  God,  gods  upon  the  earth;  they 
dehver  oracles,  command  the  elements;  their  subjects  worship 
them  (Egypt,  Peru,  Roman  Empire). 

§  70.  Social  Distinctions.  Classes  and  Castes.  —  In  inferior 
societies  all  are  equal;  no  distinctions  of  class  are  recognized 
(Pueblos  in  North  America,  Bodos  in  India,  Alfurus  in  New 
Guinea).  Slavery,  the  result  of  war  without  or  debts  within, 
carries  with  it  everywhere  an  important  differentiation.  The 
other  political  and  social  distinctions  (patrician  and  plebeian, 
etc.)  also  have  their  origin  in  the  same  causes;  the  division  of 
labor  keeps  them  up  and  makes  them  more  pronounced;  some- 
times even  the  food  of  the  various  classes  is  not  the  same,  and  this 
contributes  to  separate  them  (in  the  Fiji  Islands  human  flesh  was 
reserved  for  the  chiefs;  in  the  Hawaiian  Islands  the  chiefs  alone 
could  eat  meat,  and  so  they  were  more  vigorous  than  their 
subjects).  Often  the  vanquished  practice  servile  trades,  hard 
professions  like  that  of  agriculture;  whereas  the  conquerors  are 
soldiers.  Privileges  and  distinctions  become  hereditary  under  the 
influence  of  religion  or  as  the  consequence  of  a  political  system  that 
makes  use  of  them  as  a  convenient  administrative  scheme.  Classes 
become  changed  into  castes  (ancient  Egypt,  Japan,  Bambaras, 
etc.).  In  India  caste  forms  a  professional  and  religious  syndicate 
which  gives  its  members  the  right  to  marry  one  another  and  eat 
together;  neither  Buddhism  nor  Jainism,  with  their  equalizing 
dogmas,  has  succeeded  in  suppressing  caste.^    Our  modern  soci- 

1  Senart,  "Les  Castes  dans  I'lnde"  ("Revue  des  Deux  Mondes,"  1894;) 
"Gr.  Encyclop.,"  see  "Castes"  (bibliog.).  —  India:  Brahmans,  Kchatryas, 
Vaisyas,  Soudras:  priests,  warriors,  laborers  and  traders,  servants.  {Cf.  Per- 
sia: magi,  nobles,  laborers,  artisans.) 

Caste  may  be  recognized  from  a  great  number  of  external  signs,  —  from 
the  fashion  and  coloring  of  clothing,  from  the  form  of  the  jewelry,  from  special 
rites,  from  implements,  flags,  flowers,  etc.  Caste  is  thus  a  sort  of  freema- 
sonry. It  protects  its  members;  upon  an  order  issuing  from  it  we  have  seen 
the  merchants  of  an  entire  canton  close  their  stalls,  the  laborers  suspend  their 
work,  the  artisans  abandon  their  workshops,  for  a  slight  insult  to  one  of  their 
number.  From  the  moment  when  it  begins  to  defend  its  members  the  caste 
is  compelled  to  make  them  submit  to  a  certain  amount  of  discipline.  It  is  an 
internal  police  power  and  thus  renders  itself  services  which  we  are  accustomed 
to  expect  from  the  State.  Expulsion  from  the  caste  is  a  severe  penalty,  for 
the  individual  outside  of  his  caste  is  a  pariah;  his  presence  is  a  contamina- 
tion. The  Hindu  who  comes  to  Europe  is  "ipso  facto"  excluded  from  his 
caste,  but  he  may  obtain  reinstatement  upon  the  payment  of  a  fine  following 
a  sentence  rendered  by  the  tribunal  of  the  caste.  The  Brahman  religion  has 
contributed  towards  the  transformation  of  classes  into  castes;  but  the  chief 
reason  of  this  change  was  the  lack  of  a  strong  political  organization,  caste 
taking  the  place  of  the  State  in  its  protection  of  the  individual. 

60 


Topic  3]  ORIGIN   OF  THE   STATE  [§  71 

eties  have  taken  the  very  opposite  course  to  the  Old  World;  they 
have  proclaimed  religious,  civil,  and  political  equality;  only  in- 
equality of  fortune  is  left. 

§  71.  How  are  Societies  Formed,  Developed,  and  Reproduced, 
and  how  do  they  Die?  —  "In  union  there  is  strength,"  says  the 
proverb.  However  commonplace  this  may  be,  we  must  not  seek 
any  other  cause  for  the  formation  of  human  societies  (and  animal 
societies).  It  is  not  certain  that  man  was  originally  a  sociable 
animal,  as  Aristotle  has  maintained,  but  it  is  certain  that  he  has 
become  such.  The  formation  of  groups  has  not  taken  place 
through  any  social  contract;  this  chimerical  pact  has  never  existed. 
The  grouping  has  been  made  under  the  force  of  necessity;  it  has 
been  spontaneous  and  involuntary;  it  has  been  the  instinctive 
reaction  against  external  forces.  Defense  has  been  necessary 
against  the  enemy,  wild  beasts  and  other  men;  and  it  has  been 
necessary  to  obtain  food  by  hunting  and  fishing  in  common, 
which  is  far  more  productive  than  when  carried  on  by  the  in- 
dividual. Was  the  primitive  group  the  horde,  the  amorphous 
tribe,  which  had  organized  itself  as  the  result  of  some  war  within 
the  family,  clan,  tribe,  or  town?  Or,  on  the  other  hand,  did  they 
begin  with  the  family  to  end,  after  passing  through  a  series  of 
groups,  with  the  clan  and  the  town?  These  are  problems  whose 
solution  is  connected  with  the  obscure  question  of  the  origin  of 
the  family.  One  thing  is  certain,  however,  —  that  among  the 
people  of  the  Aryan  race  this  last  method  is  frequent;  families 
unite  to  form  clans,  clans  to  form  tribes  or  towns,  and  the  latter 
to  form  the  large  States. 

Once  they  have  been  formed,  societies  increase  by  means  of 
alliances  or  conquests.  (A)  The  Alliance  includes  various  de- 
grees: 1st.  The  Personal  union:  two  States  have  one  and  the  same 
chief,  while  at  the  same  time  with  regard  to  others  each  keeps 
its  full  independence;  for  example,  England  and  Hanover  from 
1714  to  1838.  2d.  Actual  union:  two  States  form  one  with  respect 
to  other  States  and  remain  distinct  within  themselves ;  for  example, 
Austria-Hungary.  3d.  Confederation  of  States  that  are  inde- 
pendent, each  one  keeping  its  diplomatic  representation,  but  with 
an  organ,  —  the  diet,  —  which  can  take  certain  measures  in  the 
common  interest;  for  example,  the  Germanic  Confederation  from 
1815  to  186G.  4th.  Federal  States  forming  externally  but  one 
State  and  having  internally  a  central  power  which  only  leaves 
the  local  authorities  a  portion  of  the  sovereign  power;  for  ex- 

61 


§  71]  INTRODUCTION   TO   PRIVATE   LAW  [Intro. 

ample,  Switzerland,  the  United  States.  —  (B)  Conquest  sometimes 
results  in  the  complete  absorption  of  the  conquered  State  by  the 
conquering  State.  Sometimes  its  effects  are  less  radical;  the  con- 
quered lose  a  part  of  their  independence  and  descend  to  the  rank 
of  semi-sovereign,  protected,  or  vassal  States. 

The  increase  of  a  society  is  an  advantage.  By  suppressing  little 
States  inevitable  hostilities  are  avoided  (thus  incessant  warfare 
desolated  Gaul  before  the  Roman  conquest);  forces  that  are  em- 
ployed in  destroying  one  another  turn  towards  social  co-opera- 
tion ;  the  division  of  labor  can  be  pushed  further  in  a  large  country 
than  in  a  town  or  a  province. 

A  nation  does  not  die.  Exterminations  are  rare;  but  it  may 
happen  that  one  people  is  subjugated  by  another.  Sometimes  one 
nation,  as  a  result  of  an  unfortunate  war,  loses  a  portion  of  its 
territory  and  of  its  population;  it  is  dismembered. 

Dismemberment  may  also  take  place,  like  a  fission  among  the 
animal  species,  spontaneously;  but  it  is  rarely  met  with  under  this 
form.  Societies  are  reproduced  especially  by  a  swarming-time  (the 
sacred  springtime  among  the  Italiotes);  they  found  colonies, 
copies  of  the  metropolis  with  which  they  remain  connected  (Aus- 
tralia) or  from  which  they  separate  to  live  independently  (The 
United  States). 

§  72.  The  Factors  of  Social  Evolution  are:  1st.  The  physical 
environment  (habitat,  climate,  economic  conditions;  for  example, 
the  geographical  situation  of  England  has  counted  for  a  great  deal 
in  its  history)  and  the  social  environment  (influence  of  neighboring 
societies,  competition,  imitation).  A  too  rigorous  climate  (Es- 
quimaux), the  barrenness  of  the  soil  (deserts),  and  the  difficulty 
of  communication  (Alps,  Caucasus),  are  obstacles  to  the  forma- 
tion of  large  States.  2d.  The  past,  which  forms  the  race  and  which 
is  at  first  never  more  than  the  result  of  the  influence  of  former 
environments.  From  thence  come  habits  of  discipline  and  a 
certain  homogeneity,  relationship,  language,  and  worship  common 
to  the  members  of  a  group.  The  principle  of  nationalities,  which 
recalls  that  of  the  fixedness  of  species  in  natural  history,  is  too 
exclusively  connected  with  this  action  of  the  past.  It  has  been 
able  to  create  a  common  language,  religion,  and  race,  or,  at  least, 
a  common  existence  and  hope.  It  does  not  follow  that  this  com- 
munity must  necessarily  exist  or  last  forever.  The  future  may 
undo  that  which  the  past  has  accomplished. 

§  73.   Social  Laws.  —  Certain  of  the  political  laws  apply  to 

62 


Topic  3]  ORIGIN    OF   THE   STATE  [§  74 

societies.  We  have  established  this  with  regard  to  the  division  of 
labor.  Natural  selection  ehminates  inferior  societies;  they  dis- 
appear before  those  that  are  better  armed,  more  wealthy,  more 
prosperous,  and  of  a  higher  morality.  The  law  of  the  connection 
of  characteristics  which  allowed  a  Cuvier  to  reconstruct  a  species 
that  had  disappeared  out  of  a  few  fossil  remains  is  to  be  observed 
in  society;  if  military  institutions  prevail  therein  one  will  find  as 
logical  consequences  absolute  power  and  the  subordination  of  the 
individual  to  the  State,  and  political  theories  in  conformity  there- 
with; free  institutions  will  be  met  with  in  industrial  and  commercial 
societies.  The  law  of  organic  balance,  or  the  law  of  Geoffroy 
Saint-Hilaire,  by  virtue  of  which  the  exaggerated  development 
of  one  organ  tends  to  diminish  the  other  organs  (for  example,  the 
kangaroo,  whose  fore  quarters  are  so  very  much  reduced  in  size  in 
proportion  to  his  hind  quarters),  controls  social  development. 
The  Romans  were  more  able  politicians,  better  soldiers,  and  better 
jurisconsults  than  the  Greeks;  and  the  Greeks  surpassed  the 
Romans  in  fine  arts  and  letters. 


II.      ELEMENTARY    AND     COMPOSITE     SOCIETIES 

§  74.  Primitive  Societies.  —  There  are  still  a  few  of  them  in 
existence  in  our  day.  The  Vedas  in  Ceylon,  the  Todas  in  India, 
the  Papuans,  the  natives  of  Lower  California,  the  Boschimans, 
the  Fuegians,  and  the  Esquimaux  form  a  few  groups  without 
cohesion,  of  ten,  twenty,  or  fifty  persons;  a  chance  brings  them 
together  and  accident  scatters  them.  These  anarchists,  without 
knowing  it,  have  realized  to  the  fullest  extent  the  ideal  of  the 
school :  independence  of  the  individual,  liberty,  and  equality  —  in 
poverty.  What  good  is  this  independence  that  they  cannot  use 
because  they  are  enslaved  by  the  brutal  forces  of  nature?  In  our 
societies  what  is  lost  in  liberty  is  gained  in  power,  wealth  and 
contentment,  —  that  is  to  say,  in  true  liberty.  The  meanest  serf 
of  old  France  would  not  have  exchanged  his  condition  for  that  of 
the  free  Indian  of  the  Sierra  Nevadas,  who  only  lives  on  roots  and 
insects,  or  for  that  of  the  Bedouin  of  Sinai,  who  for  three  thousand 
years  has  wandered  aimlessly.  A  tyrant  would  have  rendered 
them  inappreciable  services;  I  do  not  mean  a  good  tyrant  who  is 
pictured  in  the  image  of  God,  and  whose  one  great  fault  is  that  it 
is  impossible  for  him  to  exist;  but  I  do  mean  the  worst  of  despots. 
Baker,  when  leaving  the  tribes  who  had  no  government,  barbari- 

63 


§  74]  INTRODUCTION    TO    PRIVATE    LAW  [Intro. 

ans,  who  were  scarcely  clothed,  was  struck  with  the  prosperity  of 
the  Unyoro,  a  country  in  which  a  monster  reigned  who  for  a  mere 
nothing  would  put  his  subjects  to  death  with  the  most  frightful 
tortures.  Tyranny,  indeed,  is  a  great  step  in  advance!  And,  sad 
to  relate,  war  also  is  a  step  in  advance:  thus  tribes  that  have  no 
leader  are  peaceful.  War  allows  of  an  exercise  of  natural  selec- 
tion and  the  elimination  of  the  weak.  We  owe  our  strong  and 
vigorous  races  and  our  best  organized  societies  to  the  necessities 
of  the  struggle  for  existence.  This  providential  part  played  by 
war  in  the  origin  of  societies  has  in  it  nothing  mystical. 

§75.  The  Clan  or  the  "Gens."  —  Family  communities  are 
almost  political  societies;  their  organization  is  far  more  advanced 
than  among  the  unsettled  hordes  with  which  we  have  just  been 
dealing.  The  community  of  several  families  forms  an  association 
of  the  same  type  as  the  latter;  just  as  the  clan  (Celts),  the  "Genos" 
(Greeks)  or  the  "gens,"  the  "  seven  "  (Ireland),  the  "Sippe"  (Ale- 
manni).  Does  this  institution  result  from  the  natural  development 
and  the  dismemberment  of  the  family,  or  must  we  see  in  it  an  arti- 
ficial creation,^  families  of  diverse  origin  grouping  themselves  to- 
gether and  in  the  end,  after  several  generations  have  passed,  be- 
lieving themselves  to  be  the  issue  of  a  common  ancestor?  Both 
systems  have  their  supporters,  and  perhaps  in  both  of  them  there 
is  a  certain  amount  of  truth.  It  has  been  possible  for  families  of 
relatives  to  be  united  with  families  of  strangers,  or  even  for  fami- 
lies of  strangers  to  be  united  with  one  another,  in  such  a  way  as 
to  form  a  group  that  is  as  coherent  as  that  of  the  family  com- 
munity; in  order  to  do  this  the  outline  of  the  family  community 
has  been  borrowed.  —  At  any  rate,  the  "gens"  is  on  a  large  scale 
that  which  the  family  is  on  a  small  scale.  Its  members  are  united 
by  a  fictitious  relationship  or  by  a  relationship  which  cannot  be 
proved  if  it  is  a  true  one,  and  which  is  only  expressed  in  the  em- 
ployment of  a  common  name  and  the  worship  of  a  legendary 
ancestor. 

§  76.  The  Maternal  "  Gens"  among  the  Iroquois. —  The  tribe  of 
the  Senecas  has  eight  "gentes"  bearing  the  names  of  animals: 
wolf,  bear,  tortoise,  beaver,  deer,  woodcock,  heron,  and  falcon. 
The  animal  which  gives  its  name  to  the  "gens"  is  an  ancestor-god, 
a  totem;  all  the  members  of  the  "gens"  are  regarded  as  having  a 
common  origin;  they  are  all  relatives,  bearing  the  same  "gens" 

'  In  Daghestan  the  "gentes"  bear  the  names  of  locaUties  or  of  heroes  and 
never  that  of  an  ancestor.  The  Kheosures  (Caucasus)  do  not  know  any 
political  institution  excepting  the  "gens." 

64 


Topic  3]  ORIGIN   OF  THE   STATE  [§  78 

name,  and  have  a  common  burying-ground;  there  is  a  prohibition 
against  marrying  within  one's  own  "gens";  and,  as  relationship 
through  a  common  mother  is  the  only  one  taken  into  considera- 
tion, each  "gens"  is  recruited  exclusively  from  amongst  the  de- 
scendants of  the  women.  The  Council  of  the  "gens,"  which  is 
composed  of  all  the  adults,  men  and  women,  exercises  the  sover- 
eign power  and  decides  serious  questions,  such  as  the  taking  in 
of  a  new  member  or  the  carrying  out  of  a  vendetta;  it  elects  and 
deposes  the  military  commander  and  the  sachem  or  chief  in  times 
of  peace;  the  latter  has  only  a  power  which  is  entirely  paternal, 
without  any  means  of  coercion;  he  is  at  once  the  chief  of  the 
"gens"  and  the  representative  of  the  latter  in  the  council  of 
the  tribe  and  in  the  federal  council  of  the  Iroquois.  The  son  of  the 
former  sachem  is  never  elected  to  fill  his  father's  place,  for  he 
belongs  to  another  "gens"  because  of  the  maternal  right. 

§  77.  The  Celtic  Clan,^  such  as  it  is  represented  to  be  in  the 
Gallic  Codes,  is,  on  the  contrary,  a  clan  based  on  agnatic  relation- 
ship; the  woman,  in  spite  of  her  marriage,  remains  a  member  of 
her  father's  clan  (save  in  a  few  exceptional  cases).  At  the  head 
of  the  clan  which  is  composed  of  the  supposed  descendants  of  a 
common  ancestor,  there  is  a  chief  whose  office  is  not  hereditary. 
He  is  assisted  by  a  council  of  seven  elders,  by  a  representative 
of  the  clan  who  is  charged  with  the  administrative  affairs  and  dip- 
lomatic negotiations,  and,  finally,  by  an  avenger  who  punishes 
delinquents  and  is  in  command  of  the  men  in  time  of  war.  The 
mutual  responsibility  of  the  members  of  the  clan  is  most  minutely 
regulated;  in  case  of  a  homicide  the  sum  of  money  that  is  due  by 
way  of  composition  to  the  family  and  the  clan  of  the  victim  is 
paid,  one-third  by  the  murderer  and  his  household  and  two-thirds 
by  his  maternal  clan  and  his  paternal  clan,  the  latter  being  held 
bound  to  pay  twice  as  much  as  the  former;  the  relatives  and  the 
clan  of  the  victim  have  a  right  to  receive  the  composition  in  the 
same  proportion,  but  a  preference  is  made  to  the  extent  of  one- 
third  for  the  benefit  of  the  chief  who  has  carried  out  the  recovery. 

§  78.  The  Roman  "  Gens"  ^  implies:  1st.  A  common  name;  its 
members  bear  the  same  "nomen  gentilicium"  (ending  in  "ius"; 

^  Seebohm,  "The  Tribal  System  in  Wales,"  1895;  Dareste,  "J.  des  Sav.," 
1898;  Kovalewsky,  "R.  de  Sociol.,"  1894,  199;  R.  de  Kerallain,  "R.  g6n.  de 
Dr.,"  1890,  p.  571. 

2  Cuq.,  "Instit.  des  Remains,"  1891;  Giraud,  "R.  de  L6g.  "  1846  ("De  la 
Gentilit6");  L^crivain,  "Diet,  des  Antiq.,"  see  "Gens"  (andbibl.).  —  Cicero, 
"Top.,"  6  (according  to  Mucius). 

65 


§  78]  INTRODUCTION   TO   PRIVATE   LAW  [  Intro. 

for  example,  Tullius)  and  are  distinguished  from  one  another  by 
the  "prsenomen"  (Marcus)  and  the  "cognomen"  or  soubriquet 
(Cicero).  2d.  Common  worship  and  a  common  tomb.  3d.  Agricul- 
ture in  common;  the  "gens"  is  the  owner  of  the  "ager  gentilice"; 
the  rights  of  succession,  of  guardianship  and  custody  which  ex- 
isted among  the  "gentiles"  at  a  comparatively  recent  period  are 
remains  of  this  joint  ownership.  4th.  Solidarity  among  "  gentiles," 
whether  it  be  for  avenging  offenses  of  which  one  of  them  has  been 
a  victim,  or  whether  it  be  for  paying  the  expenses  incumbent  upon 
one  of  them  (ransom,  fine,  disbursements  occasioned  by  the  ex- 
excise  of  the  public  duties) ;  or  whether  it  be  to  aid  one  another 
at  law,  to  serve  one  another  as  surety  or  to  be  witnesses  for  one 
another.  The  "gens"  undoubtedly  had  a  chief  {''ap'x^cav  "  in  the 
Greek  "  7eVo9  "),^  the  natural  representative  of  the  "gens"  in  the 
Senate,  who  was  charged  with  the  worship,  with  the  administra- 
tion of  the  property,  and  with  the  administration  of  justice  in 
the  "gens";  he  was  assisted  in  serious  cases  by  a  council  of 
"patres,"  which  pronounced  decrees  or  regulations  and  punished 
with  the  "nota  gentilicia,"  and  probably  with  expulsion,  its  un- 
worthy members.  The  "gens"  included  the  lawful  descendants 
in  the  male  line  from  the  common  ancestor  (actual  or  presumed) 
of  the  "gens,"  the  adopted  children  or  the  women  "in  manu"  of 
a  "gentilis,"  without  mentioning  clients  who  were  only  an  ac- 
cessory part  of  it.  One  left  the  "gens"  by  being  adopted,  mar- 
ried or  emancipated,  or  the  "transitio  ad  plebem."  The  "gens" 
disappeared  little  by  little,  being  eclipsed  by  the  State,  like 
a  confederation  whose  elements  would  fuse  together  in  order 
to  form  a  single  State.  The  general  causes  of  the  progress  of 
the  State  resulted  inevitably  in  the  overthrow  of  the  "gens." 
The  population  became  divided  into  classes  and  the  land  into 
districts,  both  of  which  were  quite  foreign  to  the  division  into 
"gentes." 

§  79.  The  "Clientele."— The  client  ("cluens,"  who  obeys)  is  a 
freedman,  a  member  of  a  conquered  people,  or  a  man  who  has  con- 
nected himself  with  some  patron  ("jus  applicationis").  He  bears 
the  same  "gens"  name  as  his  patron,  takes  part  in  the  same  wor- 
ship, and  owes  him  "obsequim,  operse,  bona,"  —  respect,  services, 
property;  that  is  to  say:  1st,  assistance  in  case  of  ransom,  fines  in- 
curred, and  the  customary  expenses  and  disbursements;  2d,  his 

1  In  Daghestan  there  is  an  elected  chief  whose  authority  is  especially  a 
moral  one  ("  primus  inter  pares"). 

66 


Topic  3]  ORIGIN   OF  THE   STATE  [§80 

succession  if  he  dies  without  descendants.  In  return  his  patron, 
under  penalty  of  being  devoted  to  the  infernal  gods  ("sacer  esto"), 
gives  him  protection  before  the  courts  and  outside  of  them,  treats 
him  with  justice  in  the  family  circle,  and  gives  him  help  if  need  be 
(from  this,  perhaps,  is  derived  the  granting  of  property  to  be  held 
at  will,  Festus,  "Ep.,"  247).  The  tie  which  binds  the  client  to  his 
patron  is  hereditary;  the  client  cannot  renounce  his  patron;  the 
latter  is  himself  undoubtedly  not  authorized  to  get  rid  of  a  client 
unless  for  some  serious  cause.  The  client  has  no  rights  in  the  State 
excepting  through  his  patron.  The  decline  of  the  "gentes"  was 
the  signal  for  the  decline  of  the  "clientele."  The  clients  freed  from 
patronage  constituted  the  common  people;  they  acquired  the 
right  of  pleading  in  court  and  also  political  rights.  Towards  the 
end  of  the  Republic  the  clientele  is  no  longer  an  institution;  it  re- 
sembles the  political  clientele  of  our  days. 

§  80.  The  Germanic  "Sippe"  ^  extends  as  far  as  the  relation- 
ship ("Freundesblut  wallt  und  wenn  es  auch  nur  ein  Tropfen  ist"). 
Although  the  Germanic  law  recognizes  both  relatives  in  the  male 
line  and  relatives  in  the  female  line  ("Gesippen,"  "Freunde," 
"Gatlinge,"  "Magen"),  only  the  former,  or  relatives  by  the  lance 
and  by  the  sword,  ."Speermagen,"  "Schwertmagen,"  form  part 
of  the  "Sippe";  the  relatives  by  the  distaff  and  the  spindle,  "Spill- 
magen,"  "Kunkelmagen,"  are  not  included  in  it.  Strangers  can 
enter  the  "Sippe"  by  becoming  connected  with  the  families  that 
compose  it;  for  example,  by  way  of  enfranchisement  or  of  legiti- 
mization; on  the  other  hand,  one  leaves  the  "Sippe"  as  a  conse- 
quence of  a  placing  outside  of  the  law,  or  of  a  decision  on  the  part 
of  the  "Sippe,"  or  by  voluntarily  withdrawing  with  the  custom- 
ary formalities.  The  "Sippe"  constitutes  at  one  and  the  same 
time  a  political  group,  an  agrarian  community  ^  and  a  military 
division.  It  protects  its  members  before  the  law,  exercises  over 
them  a  police  power,  which  is  a  very  natural  thing  from  the  time 
when  it  becomes  responsible  for  their  acts,  has  guardianship  over 
persons  under  a  disability,  women  and  minors,  takes  vengeance 
for  the  murder  of  one  of  its  members,  or  receives  the  "  Wergeld"  or 
composition  due  from  the  murderer;  and,  on  the  other  hand,  it 
contributes  to  the  payment  of  the  "Wergeld"  in  case  of  a  murder 
committed  by  one  of  its  own  members. 

*  Brunner,  §  13. 

2  "L.  Alam.,"  87;  Meichelbeck,  "Hist.  Fris.,"  I,  49  (in.  750):  "fines  genea- 
losiarum";  Rozihre,  "Form.,"  318.  Tiie  word  "fara"  has  the  same  meaning 
and  is  found  in  the  names  of  places,  —  La  F^re  in  Picardy,  etc. 

67 


§  81]  INTRODUCTION   TO    PRIVATE    LAW  [iNTRO. 

§  81.  The  Germaxuc  Following  ("comitatus")  ^  places  the  man 
at  the  service  of  a  chief  or  of  a  nobleman,  of  a  free  man  who 
is  more  powerful  than  he  is,  but  without  reducing  him  to  the  con- 
dition of  a  slave.  This  is  an  extra-legal  institution,  if  one  can  use 
that  term,  which  supplements  the  State  in  the  protection  of  the 
weak.  It  differs  from  the  Roman  "clientele,"  and  no  doubt  from 
the  Gallic  "clientele"  ("ambacti"),  about  which  little  is  known, 
but  which  meets  the  same  wants.  Tacitus  describes  it  in  about 
the  following  terms:  "The  follower  is  admitted  into  the  family 
community  of  the  chief;  he  lives  under  his  roof  and  eats  and 
drinks  at  his  table;  he  swears  to  protect  and  defend  him  (as  the 
vassal  would  swear  fealty  to  his  lord) ;  in  time  of  peace  the  follow- 
ers form  a  personal  escort;  they  are  engaged  in  domestic  employ- 
ments; in  war  time  they  fight  at  his  side;  if  he  dies  it  is  a  shameful 
thing  for  them  to  survive  him  without  having  avenged  him;  they 
will  give  themselves  up  as  prisoners  in  order  to  share  his  fate,  and 
if  need  be  will  serve  as  hostages  for  him.  If  he  is  the  conqueror 
the  followers  receive  a  portion  of  the  booty,  a  staff,  a  warhorse, 
and  other  presents.  The  chief  supports  them,  arms  and  equips, 
avenges  and  protects  them.  The  bond  between  the  chief  and  the 
follower  is  not  indissoluble;  if  the  latter  wishes  to  withdraw,  for 
example,  to  return  to  the  house  of  his  father,  he  may  do  so.  It  is 
a  great  honor  for  a  chief  to  have  a  numerous  following.  All  free 
men  may  have  'comites,'  but  all  do  not  have  them;  for  this  as- 
sumes that  a  man  has  wealth,  military  glory,  and  an  illustrious 
name.  It  is  not  a  rare  thing  for  nobles  with  their  followers  to  make 
war  on  their  own  account." 

§  82.   The  Tribe,  which  is  an  aggregate  of  clans  or  "gentes,"  has 

^  Tacitus,  "Germ.,"  13.  Cf.  the  poem  of  Beowulf,  Icelandic  Sagas.  Ccesar, 
VI,  23,  speaks  of  the  heads  of  bands  who  can  be  likened  to  the  "principes" 
with  their  "comitatus";  but  the  former  only  secure  the  attachment  of  volun- 
teers for  the  duration  of  an  expedition.  The  "comitatus"  is  not  an  exclu- 
sively military  institution;  the  Germanic  names  that  are  given  after  the 
invasion  to  the  "comites"  clearly  show  this;  they  are  servitors,  "degen," 
companions,  "gasindi,"  relatives,  "gatlinge,"  "freunde";  cf.,  however,  the 
"  antrustions "  of  the  Prankish  king.  The  followers  are  not  absolutely  vas- 
sals, whatever  Montesquieu  may  say  in  his  "Esprit  des  Lois,"  30,  3-3;  but 
they  are  precursors  of  them.  They  form  a  part  of  the  household  (in  the  posi- 
tion of  free  servitors),  whereas  the  vassals  are  outside  of  the  house.  Cf.Brun- 
ner,  I,  137.  The  "following"  and  the  "chentele"  pave  the  way  for  the  division 
of  society  into  classes  by  the  transformation  of  free  men  into  servitors.  There 
is  a  good  deal  of  discussion,  —  wrongly,  as  it  seems  to  me,  —  as  to  whether 
the  right  to  have  a  "comitatus"  was  a  privilege  of  the  king,  of  the  "dux,"  or 
of  the  "principes";  Esmein,  p.  41  et  seq.  The  "comitatus"  was  of  too  small 
a  number  of  men  for  one  to  be  able  to  see  in  it  the  origin  of  the  expeditions 
which  ruined  the  Roman  Empire:  Kohler,  "Germania,"  1868,  143. 

68 


Topic  3]  ORIGIN   OF   THE   STATE  [§  83 

no  organization  other  than  that  of  the  communities  which  com- 
pose it;  it  only  differs  in  its  greater  size,  which  is  an  advantage, 
and  in  the  powerful  political  character  which  it  assumes,  whereas 
the  clan  and  the  "gens"  are  sometimes  so  much  like  the  family  as 
to  be  confused  with  it.  Among  the  members  of  the  tribe  there  is 
no  question  of  relationship,  even  artificial;  at  the  most,  they  are 
united  by  a  common  worship.  The  Iroquois  "gentes"  form 
phratria,  and  the  latter,  tribes;  the  tribe  of  the  Senecas  only  num- 
bered two  thousand  souls;  the  territory  which  it  occupied  was 
surrounded  by  a  neutral  zone;  it  had  its  own  form  of  worship  and 
its  own  council  composed  of  sachems  and  chiefs  of  "gentes." 
The  five  tribes  of  Iroquois  themselves  (about  twenty  thousand 
souls)  confederated  together,  forming  an  eternal  league  (as  all 
leagues  do!)  directed  by  a  council  where  the  voting  was  done  by 
tribes  and  where  decisions  had  to  be  arrived  at  unanimously.  In 
89G  the  seven  Hungarian  tribes  united  under  the  leadership  of 
Arpad. 

§  83.  The  Gallic  Towns  ^  and  the  Germanic  Towns.  Political 
Divisions.  —  Neither  Gaul  nor  Germania  was  a  State.  Nor  were 
they  merely  geographical  terms.  The  inhabitants  of  these  regions, 
while  they  were  autonomous,  had  among  them  enough  common 
characteristics  to  be  called  by  the  same  name.  Csesar  maintains, 
it  is  true,  that  the  Belgians,  the  Aquitani,  and  the  Celts  (or  Galli) 
have  neither  the  same  language  nor  the  same  institutions  nor  the 
same  laws;  but  he  exaggerates,  for  when  he  comes  to  describe 
Celtic  institutions  he  does  not  find  any  differences  to  point  out. 
Religious  unity  had  been  realized  by  the  Druids,  and  several  facts 
show  us  that  progress  was  being  made  towards  political  unity. 
The  Gallic  towns  placed  themselves  under  one  another's  patron- 
age. At  the  time  of  Caesar's  arrival  the  entire  country  was  grouped 
around  the  Iledui  and  the  Sequani,  who  were  disputing  for  the 
leadership  and  supremacy.  In  Germania  this  tendency  is  not  be- 
trayed to  the  same  extent;  however,  there  are  independent  States, 
such  as  the  Ubii,  who  pay  tribute  to  the  Suevi,  and  federations 
like  that  of  the  Franks  and  the  Alamans  at  the  time  of  the  bar- 
barian invasions. 

»  Bulliotand  Roidot,  "La  Cit6  Gauloise,"  1879;  Lefort,  "R.  g^n.  de  Droit," 
1880  et  seq.  —  D'Arbois  de  Juhainville,  "R.  hist.,"  1886,  3,  does  not  seem  to 
me  to  have  established  the  existence  of  a  great  Gallic  Empire  extending  from 
Thrace  to  the  Atlantic  Ocean  about  the  fifth  century  b.  c.  We  cannot  apply 
to  the  Gauls  that  which  we  know  concerning  the  Galates  of  Asia:  Slrabo,  XII, 
5;  Robion,  "Hist,  des  Gaulois  d'Orient,"  p.  153. 

69 


§  83]  INTRODUCTION   TO   PRIVATE   LAW  [Intro. 

The  territory  of  each  town  was  divided  into  cantons  ("pagi"), 
and  each  canton  included  a  certain  number  of  villages  or  small 
towns  ("vici").  It  is  presumed  that  the  "pagus"  (or  "Gau") 
was  the  territorial  district  occupied  by  the  "millena"  or  group 
which  furnished  one  thousand  inhabitants;  it  seems  that  this  was  so 
in  the  case  of  the  Suevi.  As  to  the  "  hundred,"  the  recognition  of 
whose  existence  has  been  attempted  in  the  "Germania"  of  Taci- 
tus, without  having  any  direct  proof  of  it,  this  would  be  a  sub- 
division of  the  "pagus"  if  one  were  bound  to  see  in  it  a  territorial 
division,  and  then  one  would  be  tempted  to  liken  it  to  the  "  vicus. " 
But  the  silence  of  the  texts  will  not  allow  us  to  see  anything  in  it 
but  a  military  division,  the  contingent  of  a  certain  number  of 
lineages  or  "Sippen."  In  proportion  as  the  organization  of  the 
"gentilice"  becomes  weakened,  this  personal  grouping  (to  which 
can  be  likened  those  that  were  formed  around  the  "godis"  of 
Iceland)  has  a  tendency  to  be  transformed  into  a  territorial  divi- 
sion; the  family  is  no  longer  at  the  base  of  the  social  scheme;  it 
is  residence  in  a  given  place,  just  as  it  was  in  Rome  and  in  Greece. 
But  at  the  time  of  Tacitus  the  change  had  probably  not  taken 
place.  We  merely  read  that  in  Germany,  1st,  the  judges  had  a 
hundred  assessors;  2d,  that  each  "pagus"  furnished  foot  soldiers 
at  first  to  the  number  of  one  hundred  and  later  to  an  indetermin- 
ate number;  but  they  kept  the  name  of  "centeni,"  the  hundred,  as 
an  honored  title  (thus  they  used  formerly  to  say,  "the  hundred- 
guards").  These  numerical  divisions  of  a  military  origin  are  not 
peculiar  to  Germania.^ 

§  84.  Classes  of  Population.  —  Gaul  and  Germania  were  cov- 
ered with  forests  and  swamps;  the  rather  sparse  population  gave 
itself  up  especially  to  the  raising  of  cattle,  to  hunting  and  fishing; 
agriculture  was  very  little  advanced.  Tacitus  tells  us  that  the 
women  and  the  old  men  had  to  do  all  the  hard  work  in  Germania; 

1  The  town  of  the  Helvetii  had  4  "pagi,"  12  "oppida,"  and  400  "vici";  the 
"oppida"  and  "vici"  were  set  fire  to:  Coesar,  I,  5,  12  (the  "pagus"  of  the 
Tigurines  made  war  by  itself);  IV,  1  (the  Suevi  had  100  "pagi"),  3  (strip  of 
uncultivated  land  upon  the  frontier  of  the  Suevi);  Mela,  III,  3;  Tacitus,  VI, 
12,  16.  As  to  the  historical  geography  of  Gaul:  Lognon,  "Atlas  hist.,"  1888; 
Desjardins,  "Gcogr.  de  la  Gaule,"  1878;  Deloche,  "Mdm.  des  Savants  etrang.," 
2d  series,  IV,  I,  365.  —  Among  the  Anglo-Sa.xons  the  division  is  carried  out 
even  to  the  "  ten."  The  Salic  Law  speaks  of  the  "Centenarius."  Cf.  infra  on 
the  personal  or  territorial  character  of  the  Prankish  Hundred:  "L.  Wisig.,"  II, 
1,  26:  "millenarius,"  "quinquentenarius,"  etc.  —  Rome  had  its  tribes,  its  cen- 
turies, and  many  peoples  analogous  numerical  divisions.  "  Alamans,"  36,  1.  — 
W.  Sickel,  "Der  Deutsche  Freistaat,"  1879;  "Mitth.  d.  oest.  Instituts.," 
Ergdnz,  I,  7;  Waitz,  "Verfass.,"  I,  201;  Stubbs,  "Constit.  Hist,  of  England," 
I;  "Johns  Hopkins  University  Studies  in  History,"  3d  series,  143,  342. 

70 


Topic  3]  ORIGIN  OF  THE   STATE  [§  84 

the  men's  only  occupation  was  warfare;  in  time  of  peace  they  re- 
mained idle  ("ipsi  hebent").  In  Gaul,  in  the  time  of  Caesar,  the 
population  was  divided  into  several  classes:  1st.  The  Druids,  a 
powerful  clergy  with  privileges,  exemption  from  military  service 
and  taxation,  and  with  annual  assemblies  in  the  country  of  Char- 
tres  with  a  certain  hierarchy  among  its  members  ("si.quis  ,  .  . 
excellit  dignitate"),  with  a  supreme  head  elected  by  the  sacerdotal 
body.^  Germania  had  not  yet  specialized  the  religious  function; 
it  was  there  exercised,  no  doubt,  by  the  political  chiefs.  It  is  only 
in  the  time  of  Tacitus  that  we  find  priests  to  whom  the  Scandi- 
navian "godis"  (but  not  the  Icelandic  ones,  for  the  latter  have 
also  political  attributes)  may  be  likened.  —  2d.  The  Knights, 
"  Equites  "  ;  they  constituted  the  military  class,  the  nobility,  and 
alone  took  part  in  the  political  assemblies  and  gained  their  in- 
fluence through  the  number  of  their  slaves,  of  their  debtors  and 
of  their  clients.^  Among  the  Alemanni  the  nobility,  the  old 
families,  do  not  form  a  distinct  class  with  legal  privileges;  their 
clientele  and  their  wealth  give  them  a  better  position,  in  fact, 
than  mere  free  men.  The  result  of  this  is  that  their  family  can 
demand  for  them  a  greater  "Wergeld,"  and  that  it  is  among 
them  that  ordinarily  the  chiefs  and  the  kings  will  be  chosen.^  — 
3d.  The  "Plebs,""^  having  no  political  rights  and  scarcely  above 
slaves,  are  grouped  around  the  knights  and  constitute  their  clien- 
tele. In  Germania  there  was  not,  properly  speaking,  any  "plebs." 
Society  was  still  composed  of  only  two  classes,  free  men  and 
slaves,  which  is  an  indication  of  a  less  advanced  social  state.  — 

^  Ccesar,  VI,  13.  In  Ireland,  mere  men  of  letters,  "file,"  "brithem"  or  juris- 
consults, are  distinguished  from  the  priests.  Diodorus  of  Sicily,  V,  31,  also 
separates  the  Druids,  the  Bards,  and  the  "Vates"  in  Gaul:  Ritterling,  "Hist. 
Tasch.,"  1888,  195. 

2  Ibid.,  I,  31;  VI,  13. 

3  Ccesar,  VI,  23;  Tacitus,  "Germ.,"  7,  8,  13,  25;  "Ann.,"  11,  16;  Jordanes, 
"De  Reb.  Get.,"  5;  Greg.  Tours,  2,  9.  —  In  the  tenth  century  it  is  shown 
that  there  were  among  the  Saxons,  as  formerly,  three  classes  of  persons: 
nobles,  "edlingi,"  free  born,  "frilingi,"  "servi"  or  "luzzi";  "M.  G.  H.,  S.  S.," 
II,  361;  "Prisons,"  I,  5,  11,  15;  "Bavarois,"  II,  20;  "Angles,"  I,  10.  (Dif- 
ferences in  the  price  of  the  "Wergeld").  "The  Edda"  of  Soemund,  III,  173, 
gives  a  divine  origin  to  the  three  classes  of  men:  the  "Thrael,"  "servus"; 
the  "Karl,"  "vir";  the  "Jarl"  or  noble,  warrior.  —  Detailed  bibl.  in  Brunner, 
"D.  Rcchtsg.,"  §  14.  Whence  is  this  nobility  derived?  Perhaps  from  a  pro- 
longed holding  of  the  public  power  which  assumes  noteworthy  actions. 

*  Caesar,  VI,  13  {Viollet,  p.  13).  —  Were  the  "ambacti"  or  clients  of  the 
chiefs  free  men?  Casar,  VI,  15;  Festus,  see  "Ambactus";  "N.  R.  H.,"  1890, 
709.  The  "devoti"  or  "soldurii"  are  chosen  soldiers,  who  are  so  devoted  to 
the  chief  whom  they  follow  and  who  supports  them  that  they  wall  not  survive 
him.  —  In  Ireland  we  find  free  clients  and  vassals  who  are  serfs.  The  "clien- 
tele" is  connected  with  the  grant  of  a  farm  and  livestock  made  by  the  patron. 

71 


§  84]  INTRODUCTION   TO   PRIVATE    L.^\V  [  Intro. 

4th.  The  Slaves.  Among  the  Alemanni  they  are  rather  hke  free 
men;  there  is  scarcely  any  distinction  made  between  them  and  a 
freedman;  the  master  has  over  them  a  right  of  hfe  and  death,  but 
it  is  a  very  rare  thing  for  him  to  make  any  use  of  it.  He  gives 
them  lands  to  cultivate  and  a  separate  house;  he  treats  them 
rather  as  cultivators,  contenting  himself  with  demanding  from 
them  a  portion  of  their  profits.^ 

§  85.  The  Political  Function  was  still  very  little  developed. 
It  was  entirely  an  external  one,  the  same  as  in  a  league,  and  con- 
sisted especially  in  the  organization  for  attack  and  defense  against 
the  enemy.  Within,  clans  and  families  kept  their  independence; 
collective  action,  when  it  took  place,  was  the  result,  at  least  in 
Germania,  of  a  deliberation  on  the  part  of  the  assembly  of  the 
free  men.  The  State  has  no  jurisdiction  over  the  maintaining  of 
order  within  itself.  It  is  for  each  man  to  avenge  his  own  wrongs. 
The  only  procedure  known  is  private  warfare,  the  vendetta, 
w^hich  is  carried  on  from  generation  to  generation  until  the  families 
are  exterminated,  or  until,  tired  of  struggling,  the  two  parties 
come  to  terms,  just  as  to-day  among  States  arbitration  or  medi- 
ation puts  an  end  to  differences.  The  Druids  in  Gaul  and  the 
Brehons  in  Ireland  play  the  part  of  arbitrators.  Both  of  them 
enjoy  a  sort  of  magic  power;  it  is  this  which  causes  them  to  be 
chosen  and  which  accounts  for  the  fact  that  their  judgments  were 
respected;  Caesar  maintains  that  they  had  the  power  to  excom- 
municate those  who  disobeyed  them.  Already,  however,  along- 
side of  these  priests  there  appeared  in  Gaul  a  secular  system  of 
justice  which  was  administered  by  the  magistrates  of  the  town. 
In  Germania  "principes"  who  were  elected  dispensed  justice  in 
the  cantons  and  villages;  they  also  were  magistrates,  and  the 
people  aided  them  in  their  duties.^  This  intervention  of  the 
people,  which  was  perfectly  natural  at  a  time  when  the  political 

1  Tacitus,  "Germ.,"  24,  25,  20. 

2  Ccesar,  VI,  23;  Tacitus,  12.  One  can  bring  a  capital  accusation  before 
the  national  assembly;  to  each  one  of  the  chiefs  ("principes")  who  render 
justice  "perpagos  et  vicos"  are  joined,  in  order  to  serve  them  as  advisers 
and  to  lend  their  "auctoritas"  to  their  decisions  (that  is  to  say,  to  guarantee 
them,  to  validate  them)  one  hundred  assessors  taken  from  among  the  people 
("  Centeni  singuHs  ex  plebe  comites  consilium  simul  et  auctoritas  adsunt  ").  In- 
terpret the  word  "centeni"  as  you  will,  whether  it  concern  heads  of  families  or 
of  the  political  division  called  the  "  hundred,"  of  the  assembly  of  the  "  hundred," 
or  of  some  persons,  it  is  none  the  less  true  that  the  popular  element  plays  its 
part  in  the  rendering  of  justice.  Upon  the  part  played  by  these  "centeni" 
"comites,"  of.  infra  the  Frankish  "rachimbourgs":  Brunner,  I,  143;  Vander- 
kindere,  100;  Beaiidouin,  "N.  R.  H."  To  the  contrary:  Fustel  de  Coulanges, 
"Rech.,"  361. 

72 


Topic  3]  ORIGIN   OF   THE   STATE  [§  87 

power  was  feeble,  is  one  of  the  most  striking  characteristics  of 
Germanic  justice.  The  magistrates'  assessors  do  not  limit  them- 
selves to  giving  him  counsel,  as  in  the  Roman  tribunals;  they 
determine  upon  the  judgment  which  the  magistrate  puts  into 
execution. 

If  one  judges  it  by  traditions  and  the  later  law,  the  putting 
outside  of  the  law  seems  to  have  been  the  most  serious  penalty 
that  could  be  pronounced  by  the  Germanic  tribunals,  or,  rather 
the  first  of  them,  the  popular  assembly  (later  on,  the  king).^ 
This  is  a  sort  of  secularized  excommunication,  more  lay  than 
religious,  and  carrying  with  it  death,  confiscation  of  property,  and 
the  burning  of  the  man's  house.  The  individual  put  outside  of 
the  law,  "exlex,"  outlaw,  may  be  killed  with  impunity  by  the 
first  comer;  whoever  shelters  him  is  punished,  even  his  relatives, 
and  often  his  wife;  he  is  an  enemy  of  the  community;  he  has  only 
one  resource  left,  —  that  is  to  flee,  to  take  to  the  jungle,  as  the 
Corsicans  say,  and  he  is  hunted  there  like  a  wild  animal  ("war- 
gus,"  meaning  wolf),  to  exile  himself  and  to  go  and  live  abroad. 

§  86.  The  Political  Organs  of  each  town  are:  1st,  the  popular 
assembly;  2d,  the  senate  or  council  of  the  chiefs;  3d,  the  kings 
or  magistrates. 

§  87.   The  Popular  Assembly  -  in  Germania  is  composed  of  all 

*  Cf.  as  to  Gaul,  Ccesar,  V,  56  ("hostem  judicat  ...  in  concilio")-  — 
"L.  Sal.,"  56;  Edict  of  Chilperic,  10:  "homo  qui  per  silvas  vadit."  — 
"Z.  S.  S.,"  XI,  62. 

2  Montesquieu,  "Esprit  des  Lois,"  XI,  6:  "If  one  will  read  the  admirable 
work  of  Tacitus  upon  the  customs  of  the  Alemanni,  one  will  see  that  it  is  from 
them  that  the  Enghsh  have  derived  the  idea  of  their  pohtical  government. 
This  splendid  system  was  found  in  the  forests."  Guizot,  "Civihs.  en  France," 
I,  7:  "The  Alemanni  have  given  us  the  spirit  of  liberty."  Comparative  juris- 
prudence has  justified  these  theories.  At  a  certain  stage  of  their  civilization 
other  peoples  have  had  the  same  political  institutions  as  the  Alemanni. 

F.  de  Rocca,  "Les  Ass.  pohtiques  dans  la  Russie  ancienne"  ("R.  hist.,"  1895, 
LIX,  241).  Ancient  Russia  had  its  classes  ("boiars"),  and  among  them 
courtiers,  "kniajie,"  in  the  service  of  the  prince,  merchants,  villagers  and 
slaves.  The  nobles  did  not  enjoy  any  hereditary  privileges.  Every  free  man 
had  a  right  to  take  part  in  the  "Vetchc"  or  Popular  Assembly  and  to  speak 
therein  (but  because  of  the  paternal  power  the  son  could  not  take  part  in  it 
during  the  lifetime  of  his  father).  The  "V6tch6"  deliberates  upon  all  ques- 
tions; unanimity  is  required  in  its  decisions;  this  is  obtained  by  means  of  a 
friendly  agreement  or  by  force,  the  majority  forcing  their  will  upon  the 
minority;  at  Novgorod  the  dissenters  are  drowned  in  the  Volga.  The  meet- 
ings are  not  periodical;  the  convocation  emanates  from  the  sovereign  or  a 
group  of  citizens;  nobody  is  compelled  to  take  part  in  it.  The  "Vetclie"  has 
a  seal  and  officers  who  (mforcc;  its  decisions.  This  political  organ  is  found  to 
be  powerless  to  maintain  order  within  and  to  protect  indc^pendence  without. 
It  was  necessary  to  call  upon  the  princes,  with  whom  the  "V^tch^"  nego- 
tiated, rather  like  the  Italian  towns  with  their  "  podcstas."  The  "  V6tch('' "  ap- 
points and  removes  the  sovereign;  it  decides  upon  war  and  peace;  the  sovereign 
commands  the  troops,  administers  justice,  takes  part  in  the  "V6tche"  and 

73 


§  87]  INTRODUCTION   TO   PRIVATE   LAW  [Intro. 

the  free  men  who  are  capable  of  bearing  arms.^  They  come  to  it 
grouped,  no  doubt,  in  famihes  and  clans  ("propinquitas  Sippe"), 
as  though  it  were  a  matter  of  a  miUtary  expedition.  They  seat 
themselves  fully  armed  ^  in  the  open  air.  The  priests  command 
silence  and  compel  it  if  necessary.  The  king  or  the  chiefs  speak, 
seeking  rather  to  persuade  than  to  issue  orders.  The  crowd  gives 
evidence  of  its  disapproval  by  murmurs,  of  its  approval  by  the 
clash  of  arms.^  They  have  ordinary  sessions  at  the  time  of  the 
new  moon  and  the  full  moon,  and  extraordinary  sessions  when 
circumstances  call  for  them.  The  assembly  '^  decides  the  most 
important  affairs  of  the  town,  chooses  the  chiefs  who  administer 
justice  in  the  "pagi"  and  the  "vici,"  hears,  to  the  exclusion  of  the 
latter,  accusations  in  capital  cases,  —  such  as  high  treason,  cow- 
ardice, vices  against  nature,  —  inflicts  penalties,  death  or  putting 
outside  of  the  law;  it  is  in  its  presence  that  the  political  emanci- 
pation of  young  men  takes  place;  when  they  are  able  to  fight  a 
chief  or  a  relative  goes  through  the  ceremony  of  arming  them  with 
the  shield  and  the  staff.  ^ 

sees  that  all  its  decisions  are  carried  out.  The  invasion  of  the  Tartars  ruined 
the  "Vetche"  and  gave  the  Muscovite  princes  sufficient  power  to  unify 
Russia. 

1  The  Norwegians  who  emigrated  and  established  themselves  in  Iceland 
and  took  with  them  their  old  customs  had  a  popular  assembly  or  "Althing." 
It  sat  in  a  vast  plain  upon  an  isolated  block  of  lava,  called  the  "  Mountain  of 
the  Law  " ;  here  there  were  an  altar,  a  lake  from  which  they  took  water  to  wash 
away  the  blood  of  victims,  and  a  rock  from  which  the  condemned  were 
hurled.  The  sacrifices  were  followed  by  solemn  banquets.  During  the  hold- 
ing of  the  diet  private  warfare  was  suspended;  the  priests  proclaimed  a  holy 
truce.  —  Brunner,  I,  130,  thinks  that  in  the  Germania  of  the  time  of  Tacitus 
the  assembly  was  opened  with  religious  ceremonies. 

^  The  army  is  the  people  under  arms:  Coesar,  V,  56.  Miltary  service  is 
for  the  free  man  a  right  just  as  much  as  a  duty.  Also,  the  giving  of  arms  is 
a  method  of  freeing  slaves  among  the  Lombards:  Paul  Diacre,  "Hist.  Lan- 
gob.,"  I,  13,  and  the  taking  up  of  arms  is  for  the  young  man  the  formaUty 
by  which  he  enters  upon  political  life. 

^  General  custom  among  the  Alemanni  (laws,  election  of  kings).  Vdpnatak 
in  Norway:  Greg.  Tours,  "H.  Fr.,"  II,  40;  "Rotharis,"  386. 

^  Perhaps  unanimously.  In  the  primitive  Customs  they  are  scarcely  ever 
satisfied  with  a  majority  (the  Russian  "Vetche,"  the  Montenegran  assemblies, 
the  Ossetes  and  the  Abyssinians) :  Viollet,  I,  286;  "Cap.  Saxon,"  c.  26,  27. 

^  These  assemblies  are  once  more  found  after  the  invasion  among  the 
peoples  of  Germanic  race  under  the  following  names:  "Thing"  (Scandinavi- 
ans), "Ding,"  "Geddinge"  (Germans)  "Mallus"  (Franks),  "Gemot"  (Anglo- 
Saxons),  "Werf"  (Saxons,  Frisians).  The  " Landsgemeinde "  of  the  Httle 
Swiss  cantons  such  as  IM  and  Appenzell  is  nothing  more  than  the  old  popular 
assembly,  which  has  found  a  favorable  environment  and  has  perpetuated  it- 
self there  even  to  our  day.  Cf.  the  Kabyle  "Djemaa":  Masquerny,  "Form, 
des  Cites  chez  les  Pop.  sedent.  de  I'Algerie,"  1886;  Zimmerman,  "Volksver- 
samml.  d.  alt.  Deutschen"  in  Brandes,  "B.  (ib.  d.  Germ.  Gesellsch.,"  II, 
1863.  —  The  Italian  towms  and  the  French  Communes  of  the  Middle  Ages 
have  also  had  their  popular  assemblies;  in  these  cases  it  was  a  beginning  over 
again. 

74 


Topic  3]  ORIGIN   OF  THE  STATE  [§  88 

Thus  this  assembly  is  at  one  and  the  same  time  the  army,  the 
tribunal  and  the  political  body  that  exercises  the  direct  govern- 
ment, only  leaving  to  the  kings  or  chiefs  matters  of  secondary 
importance. 

Among  the  Gauls  popular  assemblies  are  not  in  the  foreground 
as  they  are  in  Germania.  However,  they  meet  in  each  town  and 
are  composed  of  all  the  armed  men.^  Csesar  also  speaks  of  a  na- 
tional diet  ^  which  he  himself  summoned  each  year,  and  in  which 
only  the  "principes  civitatum"  took  part;  but  he  is  not  certain 
that  this  "conciHum  totius  Galliee"  existed  [previously  to  his 
time;  it  is  an  institution  which  came  into  existence,  perhaps, 
owing  to  the  necessity  of  resisting  the  Romans;  they  call  to- 
gether national  diets  as  one  would  appoint  a  dictator;  Gaul  was 
compelled  to  effect  its  unity,  just  as  Greece  had  to  do  in  order  to 
resist  the  Persians,^ 

§  88.  Senate.  —  It  becomes  impossible  to  hold  general  assem- 
blies, if  for  no  other  reason  than  that  of  the  extension  of  territory 
and  the  increase  of  population;  they  are  only  held,  where  they  are 
still  in  use,  at  rare  intervals  and  for  questions  of  vital  importance. 
The  ordinary  affairs  of  state  are  in  the  hands  of  a  less  numerous 
assembly,  —  an  assembly  of  noblemen  or  elders,  of  a  senate. 
The  assembly  of  the  "principes"  in  the  Germania  of  Tacitus  is 
of  this  character  ("de  minoribus  rebus  principes  consultant,  de 
majoribus  omnes").  The  Gallic  senates,  which  were  composed, 
no  doubt,  of  the  best  of  the  knights,  seem  to  have  played  a 
more  important  part  and  to  have  almost  annihilated  the  popular 
assembly.  Among  the  Nervii  it  is  composed  of  six  hundred 
members;  among  the  Edui  two  relatives  cannot  sit  together 
in  it,  which  would  lead  one  to  suppose  that  it  only  includes  chiefs 
of  families  or  of  clans,  just  as  in  States  that  consist  of  an  aggrega- 
tion of  "gentes"  or  of  clans;  under  these  conditions  the  senate 
resembles  the  diet  of  the  modern  confederation.  In  a  country 
where  the  nobility  exists,  as  in. Hungary,  it  is  the  lords  who  form 
the  political  assembly ;  until  the  beginning  of  the  sixteenth  century 
they  used  to  meet  together  on  the  race  course  of  Ilakos  near 
Pesth.    The  same  thing  occurred  in  Poland. 

«  Cmar,  V,  6  ("Concilium  .Eduorum"),  56;  VI,  20,  23;  Cougny,  II,  499. 

2  Cirmr,  I,  30;  IV,  6;  V,  27,  54,  56;  VI,  3,  44;  VII,  1,  2,  63,  75;  II,  4 
("Concilium  Bolgarum").  —  Cf.  D'Arbois  de  Jubainville,  " lies  Assemblies  poli- 
tiques  de  I'lrlande,"  1880;  these  should  be  likened  to  the  annual  assemblies 
of  the  Druids  in  the  country  of  Chartres;  Post,  "Bausteine,"  II,  81. 

'  Another  symptom:  Orgetorix  contemplates  getting  possession  of  the 
"imperium  totius  Gallia;":  Ccesar,  I,  2. 

75 


§  89]  INTRODUCTION    TO    PRIVATE    L.\W  [Intro. 

§  89.  Kings  or  Chiefs.^  —  The  authority  of  the  chiefs  corre- 
sponds to  the  development  of  the  pohtical  function  and  is  conse- 
quently very  slight,  "lieges  habent  quorum  tamen  vis  pendet  in 
populi  sententia,"  is  said  of  the  old  Swedes.  It  is  the  same  thing 
with  respect  to  the  kings  of  Germania,^  whose  greatest  power  lay 
in  their  "clienteles."  Half  hereditary  and  half  elective,  the  rule  is 
to  choose  them  from  certain  families  because  of  their  nobility, 
whereas  military  chiefs,  in  countries  where  there  are  no  kings  to 
command  the  army,  and  also,  no  doubt,  where  the  kings  are  too 
old,  are  named  because  of  their  courage  ("reges  ex  nobilitate, 
duces  ex  virtute  summunt").  They  have  no  right  to  punish,  as 
the  military  chiefs  of  the  time  of  Csesar  had;  this  right  is  reserved 
to  the  priests,  who  are  supposed  to  carry  out  the  will  of  the  gods. 
They  are  to  be  distinguished  from  the  people,  somewhat  as  the 
chiefs  of  savage  tribes,  by  the  arrangement  of  their  hair  in  such  a 
way  as  to  give  them  a  more  martial  air  and  to  frighten  the  enemy 
(Suevi,  Franks).  It  is  customary  to  offer  them  presents;  a  portion 
of  the  composition  due  in  the  case  of  a  murder  is  paid  them, 
whereas  it  is  the  town  that  receives  it  where  there  are  no  kings. 
The  "principes,"  or  local  chiefs,  have  still  this  power  (cf.  "reguli," 
"ealdormen"  among  the  Anglo-Saxons;  "duces,"  Lombards). 
They  are  ordinarily  chosen  among  the  nobles;  but  there  is  this 
difference  between  them  and  kings,  —  that  birth  prevails  in  the 
case  of  kings,  w^hereas  with  chiefs  it  is  election;  it  is  not  certain 
whether  they  are  appointed  for  life. 

Gaul  has  kings,^  and  especially  magistrates;  the  "vergobret," 
who  is  a  supreme  magistrate  among  the  Edui,*  is  appointed  for 
a  year  by  the  priests  and  the  other  magistrates;  he  has  the  right 
of  life  and  death  and  he  cannot  leave  the  territory  of  the  town, 

'  Braumann,  "Principes  der  Gallier  u.  Germ.,"  1883;  Sybel,  "Entstehung 
d.  Deut.  Koenigthums,"  1881;  Dahn,  "Koenige  der  Germanen,"  1861-85; 
Voss,  "Republilc  u.  Koenigthum  in  alt.  Germ.,  188.5;  Waitz,  "Forsch.,"  II, 
387;  Brunner,  §  17  (bibl.);  Ccesar,  I,  31;  II,  5,  28;  III,  16,  17;  IV,  11;  V,  54; 
VII,  32,  33;  VIII,  21;  Hoffmeister,^  "Das  Koenigt.  i.  altg.  Staats.,"  1886. 

2  The  king  or  "princeps  civitatis"  (Tacitus,  lO)  is  called  "thiudans,"  from 
"thiuda,"  meaning  people  (cf.  "L.  Sal.,"  46:  "ante  theoda,"  meaning  "ante 
dominum");  "chunning,"  "konungr"  ("koenig")  from  "chunni,"  "kunne," 
meaning  race,  nation;  "leod"  (Anglo-Saxons),  word  which  also  means  people: 
"M.  G.  H.,  S.  S.,"  VII,  377;  Waitz,  I,  322  (deposition);  Grimm,  "R.  A.,"  231; 
Caesar,  VI,  23. 

3  Val.  Maxime,  9,  6,  3;  Ca;sar,  I,  3;  II,  4;  IV,  21;  V,  25,  26,  54;  VII,  4. 

*  Ccesar,  I,  4,  16;  VII,  32,  .33  ("  intermissis  magistratibus,"  that  is  to  say, 
with  the  intervention  of  the  other  magistrates  of  the  town  and  of  the  chief 
alderman  in  his  official  capacity) ;  others  translate  in  the  absence  of  the  magis- 
trates; Strabo,  4,  4,  3.  The  "Lexovii"  also  have  a  chief  alderman.  Cf.  Robert, 
"R.  archdol.,*'  1886. 

76 


Topic  3]  ORIGIN   OF   THE   STATE  [§  90 

which  compels  him  in  case  of  war  to  appoint  a  miUtary  chief  to 
rule  with  him.  The  authority  of  this  magistrate  seems  to  be 
greater  than  that  of  the  Germanic  chiefs;  however,  they  complain 
that  mere  individuals  have  more  influence  than  they  in  the  State. 
The  military  aristocracy  with  its  clientele,  and  the  priesthood  of 
Druids,  counterbalance  their  power. 

§  90.  Composite  Societies.  —  The  political  apparatus  becomes 
more  complicated  within  these.  The  central  organ  includes 
various  elements:  thus  in  a  monarchy  we  will  find  near  the  king  a 
Council  composed  of  officers  or  ministers  chosen  from  the  king's 
relatives  or  servitors,  —  for  example,  the  eunuchs  under  the 
Lower  Empire,^  —  and  bureaus  besides  these  ministers.  In  pro- 
portion as  the  attributes  of  the  State  become  extended  the  au- 
thority of  the  ministers  increases;  the  king,  who  is  physically 
incapable  of  doing  everything,  only  keeps  the  general  direction  of 
public  affairs;  and  often  even  the  real  power  passes  to  a  prime 
minister,  or  a  grand  vizier;  the  king  reigns  but  does  not  govern. 
At  the  head  of  the  territorial  divisions  there  are  established  local 
organs  which  are  a  reproduction  of  the  central  organ  on  a  small 
scale,  and  which  model  themselves  after  it  and  are  subordinated 
to  one  another  in  a  hierarchic  manner.^  The  central  organ  is 
charged  with  co-ordinating  the  action  of  the  local  organs,  and  also 
of  the  special  apparatus  which  comes  to  be  formed  little  by  little 
alongside  of  it  and  at  its  expense :  judiciary,  military,  and  financial 
apparatus,  —  all  with  the  same  hierarchy  and  the  same  centrali- 
zation. The  separation  of  powers  is  a  consequence  of  the  division 
of  labor,  and  even  more  pronounced  separation  takes  place  in 
modern  societies:  the  industrial  apparatus  and  the  religious  ap- 
paratus are  distinct  and  to  a  very  great  extent  independent  of 
the  political  apparatus.     Not  that  there  are  no  protests  raised 

1  Mistresses  of  the  king  (Louis  XV),  lovers  of  the  queen  (Catherine  II), 
favorites  of  either  one  or  the  other  have  important  pohtical  effects  in  mon- 
archies.   Nepotism  is  in  modern  systems  a  survival  of  the  past. 

2  The  local  organs  are  sometimes  created  directly  by  the  central  organ 
(colonies,  etc.).  At  other  times  this  central  organ  is  contented  with  subordi- 
nating to  itself  powers  which  already  exist,  with  transforming  local  chiefs  into 
mere  functionaries.  In  confederated  States  these  chiefs  give  up  only  a  small 
portion  of  their  attributes.  The  English  have  allowed  little  potentates,  ra- 
jahs, who  have  a  great  nominal  authority,  to  continue  in  India.  WTiatever 
their  origin  may  be,  the  local  organs  have  a  tendency  to  resemble  the  central 
organ.  In  the  Persian  monarchy  the  satraps  usurped  the  right  of  life  and 
death.  In  Greece  Sparta  propagated  aristocratic  institutions  and  Athens 
democratic  institutions.  The  free  towns  adopted  in  the  Roman  Empire  the 
constitution  of  republican  Rome,  which  apparently  had  still  remained  in 
force, 

77 


§  90]  INTRODUCTION   TO    PRIVATE    L.iW  [Intro. 

against  this  tendency.  The  sociaUstic  theory  of  the  organization 
of  labor  makes  of  the  State  a  great  manufacturer,  and  even  the 
only  possible  manufacturer.  In  religious  matters  the  ultramon- 
tanes,  even  Auguste  Comte,  want  a  State  religion.  Some  of 
them  restore  to  the  State  the  religious  function  which  it  had  for 
so  long  a  time  during  antiquity,  and  almost  everywhere  until  our 
own  day;  others  give  it  the  economic  function  of  which  it  has  de- 
prived itself  for  so  long  a  time.  Even  when  we  set  aside  these 
radical  theories,  there  remain  open  questions  as  to  the  relation- 
ship of  the  Church  and  the  State,  and  as  to  the  intervention  of  the 
State  in  matters  of  industry  and  commerce. 

The  patriotism  of  old  times  required  a  man's  entire  devotion; 
we  must  picture  to  ourselves  the  States  of  olden  times  as  towns 
in  a  state  of  siege  and  reflect  that  some  trivial  act  in  time  of  peace 
becomes  a  crime  when  facing  the  enemy.  In  our  own  day  there 
is,  as  it  were,  a  tendency  to  return  to  militarism;  the  State  takes 
possession  of  the  telegraphs  and  the  railways;  it  enacts  laws 
against  drunkenness;  there  is  a  desire  to  make  people  happy 
whether  they  like  it  or  not,  and  virtuous  by  decree.  But  liberal 
institutions,  —  such  as  free  exchange,  freedom  of  conscience,  and 
freedom  of  the  press,  —  urge  the  State  to  take  everything.  The 
modern  State  has  gained  in  strength  almost  as  much  as  the  in- 
dividual has  in  independence,  —  a  thing  which  has  solved  a  prob- 
lem as  difficult  in  appearance  as  the  squaring  of  the  circle.  If  the 
system  of  State  control  is  to  be  the  system  of  the  future,  rather 
than  anarchy,  it  is  a  mistake  to  believe  that  the  State  must  be 
everything  and  the  individual  nothing.  The  body  draws  its 
strength  from  the  vitality  of  its  cells;  these  must  have  an  inde- 
pendent life  of  their  own;  it  is  the  same  in  society;  the  more 
vigorous  the  individual,  the  more  powerful  the  society;  it  is  not 
the  atrophy  of  the  individual  that  should  be  sought;  it  is  his  com- 
plete development. 

§91.  The  Ancient  Town  and  its  Revolutions.  —  The  little 
Greek  towns,  even  Rome  itself,  were  originally  organized  according 
to  the  type  of  the  Gallic  or  Germanic  city,  having  popular  as- 
semblies, senates,  kings,  or  magistrates.  But  in  time  their  consti- 
tution became  more  complicated  and  was  transformed.  The 
history  of  their  public  institutions  shows  a  great  uniformity;  the 
old  writers,  Polybius  among  others,  had  noticed  it  and  had  given 
the  curve  of  their  revolutions.  For  the  most  part  they  passed 
through   the  following   phases:    1st.   Patriarchal  royalty,   as  at 

78 


Topic  3]  ORIGIN   OF   THE   STATE  [§91 

Rome.  2d.  Aristocracy  of  race,  patriarchate  being  substituted  for 
royalty,  which  had  become  tyrannical.  3d.  Aristocracy  of  fortune, 
taking  the  place  of  the  old  nobility  (the  constitution  of  Solon  at 
Athens  and  of  Servius  TuUius  at  Rome,  political  rights  dependent 
upon  wealth).  4th.  Democracy,  based  upon  equality  between 
the  "  plebs ' '  and  the  patriarchate.  The  military  and  financial  charges 
weigh  upon  the  "plebs"  as  well  as  upon  the  patriarchate,  upon  the 
poor  as  well  as  upon  the  rich.  Those  who  pay  a  part  of  these 
charges  wish  to  have  a  part  in  these  rights.  Artificial  divisions 
that  are  purely  territorial  take  the  place  of  the  old  ethnical  or 
family  divisions  (tribes  and  "demes"  at  Athens);  the  assemblies 
of  the  citizens  voting  by  tribes  having  the  last  word  as  to  all  affairs 
of  importance;  the  magistrates  are  temporary  and  may  have  their 
authority  revoked  by  the  people,  and  they  are  responsible  to  them; 
they  are  chosen  by  means  of  drawing  lots,  election  still  having 
something  aristocratic  about  it  {cf.  the  Athenian  jury  of  the  Heli- 
astes  drawn  by  lots  and  the  Roman  judges  taken,  even  to  the 
Gracchi,  from  among  the  senatorial  class).  5th.  Tyranny.  The 
social  question  has  always  been  the  danger  in  the  old  democracies. 
After  the  attainment  of  the  equality  of  political  rights,  equality 
of  fortune  has  been  demanded.  In  the  pursuit  of  this  object,  which 
is  as  chimerical  as  equality  of  strength  or  intelligence,  rich  and 
poor,  fat  and  thin,  struggle  without  respite.  If  the  poor  and  the 
thin  are  the  strongest,  they  profit  by  it  to  obtain  from  the  State 
distribution  of  the  wheat  and  the  food,  the  cancelling  of  debts, 
and  the  dividing  up  of  the  soil.  The  troubles  arising  from  these 
measures  cost  the  town  its  freedom  and  its  political  rights,  A 
tyrant,  a  Csesar,  ordinarily  chief  of  the  democratic  party,  is  found 
ready  to  re-establish  order  and  repress  the  anti-social  tendencies. 
This  is  submitted  to  as  an  evil  in  order  to  avoid  a  still  greater 
evil:  anarchy. 


79 


§  92]  .  HISTORY   OF   PRIVATE    LAW 


HISTORY  OF  PRIVATE  LAW 

§  92.  General  Evolution.  —  Private  law  was  but  slowly  de- 
tached from  public  law,  with  which  formerly  it  came  near  to 
being  confused.  That  which  to-day  is  demanded  of  the  State, 
the  maintenance  of  order,  the  security  of  the  individual,  was 
formerly  the  concern  of  the  family.  With  Feudalism  public 
power  passes  into  the  hands  of  the  feudal  lords  as  a  tribute  to 
their  proprietary  right,  that  is  to  say,  of  private  power;  that 
which  the  sovereign  has  succeeded  in  preserving  for  himself  is 
a  portion  of  his  domain.  The  monarchy  was  compelled  to  make 
a  sustained  effort  in  order  to  re-establish  the  sovereign  power 
and  distinguish  it  from  private  power.  At  the  same  time,  and 
thanks  to  this  evolution,  a  movement  towards  civil  equality  took 
place;  private  condition  depended  a  great  deal  upon  political 
condition;  little  by  little  class  distinctions  became  more  scarce; 
the  Revolution  abolished  them  and  left  in  existence  only  eco- 
nomic inequalities,  a  simple  expression  in  the  majority  of  cases 
of  physical  or  intellectual  inequalities. 

It  is  also  due  to  the  changes  in  political  and  religious  order, 
under  the  action  of  economic  causes,  that  the  emancipation  of  the 
individual  from  the  family  ties  and  the  individualization  of  owner- 
ship took  place.  From  a  state  of  perpetual  war  and  violence,  carry- 
ing with  it  the  subjection  of  the  individual,  something  like  a  state 
of  siege,  progress  was  made  towards  a  system  of  internal  peace 
and  order,  and  consequently  towards  a  system  of  liberty.  The 
result  of  this  revolution  makes  itself  felt  in  every  branch  of  private 
law. 

Outside  of  these  logical  results,  which  occupy  so  large  a  place 
in  our  ancient  legal  history,  one  can  say  that  private  law  is 
extended  and  becomes  complicated,  is  enlarged  and  refined.  Re- 
lations which  for  a  long  time  remain  strangers  to  law,  as  certain 
forms  of  contracts  and  possession,  are  regulated.  Neighboring  in- 
stitutions are  differentiated:  thus  from  that  common  stock,  the 
domestic  power,  are  detached  the  power  of  the  husband,  the 
power  of  the  father,  the  power  of  the  guardian;  credits  and  guar- 
antees are  organized  in  divers  forms;  transfers  "inter  vivos," 

80 


GENERAL   EVOLUTION  [§  92 

gifts  "causa  mortis,"  pacts  based  on  future  inheritances,  deeds  of 
last  will,  are  contrasted  with  one  another.  Roman  legislation 
now  harmonized  with  the  spirit  of  modern  law,  the  canon  law 
and  Christian  ideas,  the  conception  of  equity  and  national  right, 
are  mingled  with  old  Germanic  bases  in  customs,  laws,  jurispru- 
dence and  doctrine,  in  order  to  complete  the  extensive  structure 
of  our  old  private  law. 


81 


§93] 


THE   FAMILY 


[Chap.  I 


Topic 

1. 

Topic 

2. 

Topic 

3. 

Topic 

4. 

Topic 

5. 

Topic 

6. 

Topic 

7. 

Topic 

8. 

Topic 

9. 

Topic 

10. 

Topic  11. 

Topic 

12. 

Topic 

13. 

Topic  14. 

CHAPTER  ONE 

THE  FAMILY 

Marriage.    Legislation  and  Jurisdiction. 

Betrothals. 

Celebration  of  Marriage. 

Impediments  to  marriage. 

Effects  of  Marriage. 

Dissolution  of  Marriage. 

Second  Marriages. 

Unions  Other  than  Marriage. 

Power  of  the  Husband. 

The  Paternal  Power. 

Concerning  Illegitimate  Children. 

Adoption. 

Condition  of  Women. 

Guardianship  and  Custody. 


§  93.  General  Ideas. 

I  94.  Relationship. 

§  95.  The  House,  or  "mesnie." 

§  93.  General  Ideas.  —  Following  the  invasions,  the  barbarian 
family  appears  under  two  aspects :  (A)  under  that  of  Relationship 
or  Lineage,  a  vast  circle  embracing  all  the  relatives,  constituting 
an  association  whose  members,  united  by  close  mutual  assistance, 
must  defend  one  another  and  assist  one  another  under  all  condi- 
tions; (B)  under  that  of  the  House,  "domus,"  "mesnie,"  a  less 
extended  group,  only  taking  in  the  nearer  relatives,  those  who 
dwell  together.    Relationship  is  a  confederation  of  "mesnies." 

§  94.  Relationship  extends  as  far  as  the  ties  of  blood  are  to  be 
recognized.  In  the  purely  patriarchal  system  it  ought  only  to 
take  in  the  relations  designated  as  males  or  agnates,  not  the  rela- 
tions designated  as  women  or  cognates.  But  from  the  time  of 
Tacitus  remnants  of  the  matriarchate  give  to  those  who  are  mere 
cognates  a  place  alongside  of  the  agnates;  it  is  the  same  thing  in 

82 


Chap.  I]  THE  FAiilLY  [§  94 

the  Salic  Law.^  As  a  general  rule,  however,  one  can  truthfully 
say  that  agnatic  relationship  alone  is  taken  into  consideration.^ 
The  relations  by  the  sword,  by  the  spear  ("Schwertmagen," 
"Speermagen"),  are  contrasted  with  the  relations  by  the  distaff, 
by  the  spindle  ("Spillmagen,"  "Kunkelmagen").^  There  are 
here,  as  it  were,  two  distinct  circles,  of  which  the  second  comes  to 
resemble  the  first  more  and  more.  The  proximity  of  relationship 
is  not  calculated  by  the  number  of  generations,  as  in  Roman  law, 
but  in  a  more  rough  and  ready  way  by  comparing  the  family  to 
the  human  body,  and  placing  the  relatives  in  each  limb.  We  shall 
come  across  this  system  further  on  in  relation  to  marriage  and 
inheritance.^ 

The  effects  of  relationship  were:  1st.  Solidarity  in  the  vengeance 
for  wrongs  committed  against  one  of  its  members,  and  in  the  re- 
sponsibility for  those  which  they  committed  against  third  per- 
sons.^ 2d.  The  obligation  of  assistance  in  justice  (oath  takers). 
3d.  Right  of  inheritance  ^  and  of  repurchase,  4th.  The  right 
and  the  obligation  of  the  guardianship  of  minors  and  women.  The 
rights  and  duties  of  relatives  became  weakened  throughout  the 
whole  of  the  Old  Regime,  so  much  so  that  in  our  day  they  are 
reduced  to  almost  nothing,  and  one  has  some  difficulty  in  justifying 
them,  relatives  having  become  almost  strangers  to  one  another. 
Formerly,  on  the  contrary,  men  of  the  same  lineage,  always  ready 
to  risk  their  life  and  their  fortune  for  one  another,  with  good 
reason  looked  upon  their  rights  as  the  reward  and  compensation 
accruing  from  the  heavy  duties  of  assistance  which  weighed  them 
down.  It  is  the  State  which,  in  guaranteeing  public  order,  has 
rendered  useless  these  associations  of  mutual  protection  and  has 
indirectly  overthrown  these  leagues  of  relatives  whose  existence 
was  sometimes  a  menace  to  itself.  Nor  have  economic  changes 
failed  to  assist  in  bringing  about  this  result.  It  has  resulted  very 
slowly  and  in  an  imperceptible  manner.  The  relatives  did  not 
have  formally  to  break  the  tacit  agreement  which  united  them. 

*  Tacitus,  "Germ.," 20;  infra,  "Inheritances";  Brunner,!,  81; Ficker,  op. cit. 

2  Lcfebvre,  "Hist,  du  Dr.  Matrim.  Fr.,"  II,  315. 

3  Rosin,  "Schwertm.  i.  Rechtsbuch.,"  1877;  Stutz,  " Verwandschaft.  d. 
Sachsensp.,"  p.  7;  Heusler,  §  130. 

*  Infra,  cf.  Viollet,  392;  Morgan,  "Syst.  of  Sanguinity,"  1871. 
6  Brunner,  "Sippe  u.  Wergeld"  ("Z.  S.  S.,  G.  A.,"  16). 

«  The  obHgation  to  furnish  nourishment,  which  in  our  day  is  confined  to 
the  very  near  relatives,  must  formerly  have  extended  to  the  entire  circle 
of  relatives:  Ciccaglione,  "Enciclop.  Giur.  Ital.,"  see  "Alimenti";  Salvioli, 
p.  332;  Pothier,  VII,  25;  Merlin,  see  "Aliments";  Henrys,  IV,  681;  "Z.  f. 
Privat.  u.  Off.  R.,"  1893,  20,  481. 

83 


§  94]  THE    FAMILY  [Chap.  I 

Formerly  the  abandonment  of  the  family  was  permitted  and 
regulated  by  usage;  ^  possibly,  the  relatives  even  had  the  power 
to  deprive  of  his  rights  the  one  among  them  whom  they  considered 
as  unworthy,  or  whose  conduct  might  involve  their  responsibility 
to  too  great  an  extent. 

§  95.  The  House,  or  "mesnie,"  ^  the  family  in  a  narrow  sense,  is 
organized  according  to  the  patriarchal  type,  almost  like  an  army, 
as  required  by  the  social  condition  which  was  so  troubled  in  olden 
times,  the  lack  of  all  security,  the  result  of  violent  customs  and 
of  the  weakness  or  the  negligence  of  public  powers.  Such  at 
least  is  the  conception  which  seems  to  us  to  be  most  exact;  al- 
though it  has  against  it  an  opinion  which  is  still  very  widespread, 
contrasting  "the  Germanic  family,  which  rests  before  everything 
else  on  the  idea  of  protection,  with  the  Roman  family,  which  rests 
upon  the  principle  of  authority,"  and  a  more  recent  thesis  ac- 
cording to  which  these  two  families  are  rather  to  be  discriminated 
because  the  first  of  them  might  contain  vestiges  of  the  primitive 
matriarchate.^    As  we  look  at  it,  the  head  of  the  Germanic  family 

1  "Sal.,"  60;  cf.  "L.  Henrici  I,"  c.  88.  In  Hainaut  the  relatives  of  the 
homicide  forswear  him,  that  is  to  say,  they  make  a  declaration  to  the  effect 
that  they  renounce  every  relation  with  him,  so  as  to  escape  the  consequences 
of  private  warfare:  Cattier,  "Evol.  du  Dr.  Penal  Germ.,"  1894,  p.  135. 

2  Cf.  Law  of  the  Valleys  of  the  Pyrenees.  The  house  or  the  hearth  ("  Lar ") 
goes  to  the  eldest  son  or  daughter  (heir  or  heiress)  to  the  exclusion  of  the 
other  relatives.  It  is  not  a  rare  thing  for  each  family  to  have  its  own  system 
of  succession.  The  house  in  which  it  has  its  seat  is  indivisible,  inalienable, 
and  inviolable.  The  children  (for  example,  those  who  are  in  poor  health)  all 
have  a  right  to  live  there,  as  well  as  the  uncles  and  aunts  who  are  not  married. 
The  younger  sons  pass  into  another  family  when  they  marry  heiresses;  in 
the  same  way  the  younger  daughters  do  this  when  they  marry  heirs.  If 
they  married  one  another  (younger  sons  or  younger  daughters)  they  formed 
a  new  family,  a  sort  of  colony  of  the  parent  house;  the  latter  was  like  a  center 
which  drew  to  itself  sometimes  the  possessions  of  each  one  of  these  colonies 
to  the  exclusion  of  the  others:  "Bayonne,"  ed.  Balasque,  II,  622;  "  F.  de  Na- 
varre," 2  and  4,  8;  "  Fors  de  Beam,"  passim  (Nogues);  "Gout,  de  Bareges," 
1760  and  1789;  Lagrhe,  "La  Navarre,"  II,  211;  "Le  Dr.  dans  les  Pyrenees," 
1867;  Cordier,  "R.  h.  Dr.,"  1859,  257;  1868,  332;  "Boletin  de  la  Inst,  libre  de 
Ensefianza;"  1886,  pp.54,  73  (Wentworth-Wehster);  Ricaume,  "These,"  1897; 
Maurel,  1900;  Butel,  "La  Vallee  d'Ossau,"  1894;  Flach,  "Grig,  de  I'anc.  Fr.," 
II,  455. 

3  It  may  be  that  after  the  invasions  the  family  preserved  some  traces  of 
the  matriarchate,  but  they  are  anomalies  arising  from  characteristics  which 
may  be  left  to  one  side  in  an  outline  like  this.  In  our  opinion  the  patriarchal 
type  already  dominated  in  the  time  of  Tacitus.  To  look  upon  the  Germanic 
family  as  founded  upon  an  idea  of  protection  is  to  commit  an  anachronism 
and  to  carry  into  the  past  a  conception  which  is  relatively  modern  and  due  to 
the  influence  of  Christianity  and  the  changes  in  social  and  political  status. 
As  these  changes  took  place  little  by  little,  and  they  are  only  proved  by  doc- 
uments which  are  not  very  precise  and  are  very  incomplete,  one  has  no  diffi- 
culty in  understanding  the  divergency  of  views  held  by  historians  of  law: 
Glasson,  III,  1;  Meynial,  "Le  Mar.  apres  les  Inv.,"  1898;  Heusler,  §  130; 
Simonnet,  "Le  Mundium  dans  le  Dr.  de  Famille  Germ.,"  1898;    Among  the 

84 


Chap.  I]  THE   F.UIILY  [§  95 

differs  but  little  from  the  Roman  "paterfamilias";  he  enjoys  an 
almost  unlimited  power  over  persons  and  possessions.  Whoever 
is  a  member  of  the  household  must  submit  to  him :  ^  his  wife,  his 
sons  and  his  daughters,  their  wives  or  their  husbands,  still  more 
so  their  children,  his  brothers  and  sisters  living  with  him,  his 
mother,  and  lastly  the  servants.^  Over  all  of  them  extended  the 
domestic  power  or  "  mundium,"  ^  the  patriarchal  right  which 
was  the  same  for  all,  but  which,  however,  was  exercised  in  a  differ- 
ent way  according  to  the  person;  ^  the  lawful  wife  was  more  re- 
spected if  there  were  any  chance  of  her  relatives  taking  her  part; 
the  children,  presumptive  heirs,  were  treated  better  than  the 
servitors;  in  the  same  way,  the  brothers  were  equal  in  strength  to 
the  head  and  had  the  right  of  going  away;  the  house  servants, 
in  continuous  contact  with  the  master,  were  in  their  turn  sepa- 
rated from  the  cultivators  working  at  a  distance  on  far-away  lands. 
The  germs  of  differentiation  which  already  existed  in  very  old 
times  began  to  be  developed.  The  pride  of  power  of  the  head  of 
the  family  diminished  in  proportion  to  the  growth  of  public  power. 
The  State  becomes  the  guardian  of  defenseless  persons,  —  the 
clergy,  widows,  orphans,  poor  persons  and  strangers.  He  who 
has  no  longer  a  family  finds  a  protector  in  the  king;  it  is  the  same 
with  the  man  who  is  forsaken  by  his  family.  From  this  supply- 
ing function  the  State  passes  to  a  more  active  role:  it  controls 
and  oversees  the  exercise  of  the  domestic  power  and  checks  the 
abuses  of  the  same.^    As  there  is  no  form  of  tyranny  which  can  be 

old  authors  see:  Koenigswarier,  Laboulaye,  and  P.  Gide.  In  order  to  appre- 
ciate the  degree  of  uncertainty  to  which  one  is  reduced  on  these  important 
questions,  see  Lefebvre,  "Hist,  du  Dr.  Matrim.  Fr.,"  whose  ideas,  which  are 
hard  to  sum  up,  are  very  far  removed  from  many  of  those  that  are  commonly 
received.  According  to  this  learned  man,  out  of  a  confused,  anarchistic  and 
disorganized  situation  Christianity  drew  a  legislation  which  was  well  organ- 
ized on  the  subject  of  the  family.  It  is  owing  to  the  Christian  guidance  that 
all  the  matrimonial  law  of  the  barbarian  period  and  the  Middle  Ages  is  to  be 
accounted  for;  the  Germanic  origins  amount  to  little  compared  with  this.  It 
seems  to  us  that  M.  Lefebvre  gives  an  exaggerated  importance  to  one  of  the 
factors  of  our  old  law,  —  a  factor,  moreover,  the  effect  of  which  no  one  con- 
tests. To  judge  from  the  Customs  of  feudal  society,  which  were  often  so  far 
from  being  Christian,  it  is  very  hard  to  believe  that  this  legislation  was  en- 
tirely inspired  by  religion. 

*  "  C.  de  Bareges,"  1670,  Art.  16:  the  younger  son  was  called  "esclau,"  which 
means  slave. 

^  One  can  add  to  these  free  men  such  as  "  recommand^s "  and  "vassi." 
Thevenin,  "Tcxtes,"  nos.  26,  51,  and  144. 

'  For  the  Frankish  words  see:  1)' Arhois de  Jubainville,  "Etudes  s.  la  Langue 
des  Francs  a  I'Epoque  Merov.,"  1900;  Calmettes,  "Bch.,"  1900. 

*  Aristotle,  "Polit.,"  I,  5;  /iof/w," R(^pub.,"  I,  2. 

^  During  the  Revolutionary  period,  owing  to  a  curious  phenomenon  of 
regression,  family  lawsuits  are  taken  out  of  the  jurisdiction  of  the  connnon  law. 

85 


§  95]  THE   FMIILY  [Chap.  I 

compared  to  that  which  is  exercised  by  the  head  of  the  family 
over  his  own,  a  tyranny  exercised  at  every  moment  and  under  the 
most  futile  pretexts,  so,  as  soon  as  the  State  assures  order,  the 
emancipation  of  the  individual  takes  place  of  its  own  accord. 
Free  domesticity  takes  the  place  of  servile  domesticity.  Having 
arrived  at  manhood,  the  children  are  freed  from  the  paternal  power; 
they  are  only  subjected  to  it  during  their  minority,  when  it  is  for 
their  interest,  and  never  as  in  the  past  because  of  the  greater  in- 
terest of  the  family.  Woman  becomes  the  equal  of  man,  if  she  is 
not  married,  and  when  she  is,  her  incapacity  still  exists,  but  it  has 
no  longer  its  "raison  d'etre"  in  the  constitution  of  the  "domus," 
it  pertains  to  the  marriage,  to  the  necessity  of  the  presence  of  a 
head  in  the  house;  also,  the  power  of  the  husband  is  singularly 
decreased.  This  group  of  persons,  which  found  itself,  so  to  speak, 
outside  of  the  State,  because  the  State  paid  no  attention  to  them, 
and  which  only  belonged  to  the  family,  thus  ends  by  belonging  also 
to  the  State,  in  the  same  way  and  in  as  direct  a  manner,  as  the 
head  of  the  family  himself.  Thenceforth,  the  unity  of  inheritance 
which  the  primitive  "domus,"  assumed,  ceases  to  exist  on  prin- 
ciple: the  wife,  the  children,  "a  fortiori"  the  other  members  of 
the  family,  have  or  can  have  possessions  of  their  own  distinct  from 
those  which  are  in  the  hands  of  the  head  of  the  family.  States  of 
transition  are  met  with,  such  as  joint  ownership  among  members, 
where,  because  of  the  joint  possession  of  goods,  the  house  seems 
to  exist  as  it  did  under  a  single  head.  But  these  institutions  are 
set  aside  in  the  same  way,  the  conception  of  the  maintenance  of 
the  family  inheritance,  of  the  conservation  of  property  in  the 
family,  lasted  as  long  as  did  the  old  law  (theory  of  personal 
belongings.)  ^ 

1  Verdelet,  "Du  Bien  de  Famille  en  Allemagne,"  1900. 


86 


Topic  l]       MARRIAGE.      LEGISLATION   AND   JURISDICTION 


§90 


Topic  1.     Marriage.     Legislation  and  Jurisdiction 


96.  IMarriage    after    the    Invasions. 

97.  The  Church  and  the  ReUgious 

Marriage. 

98.  Civil  Marriage. 


§    99.  Legislation  and  Jurisprudence 

of  the  Monarchic  Period. 
§  100.  The  Revolutionary  Law. 


§  96.  Marriage  after  the  Invasions.  —  Marriage  in  old  French 
law  passed  through  three  phases,  corresponding  pretty  nearly  to 
the  Barbarian  period,  the  Feudal  period,  and  the  Monarchic 
period.  The  Germanic  Customs  and  the  Roman  law  are  mingled 
during  the  barbarian  period  into  a  rather  confused  stream/  to 
which  were  joined  the  limitations  devised  by  the  Church.  From 
the  time  of  the  Roman  period  the  canon  law  was  in  process  of 
formation,  the  emperors  had  drawn  their  inspiration  from  it  in 
their  constitutions,  and  the  Capitularies  often  borrowed  from  it. 
The  civil  legislation  receives  the  imprint  of  Christian  ideas  more 
and  more.  In  theory,  however,  as  under  the  Roman  Empire, 
legislation  as  regards  marriage  and  the  decision  of  questions  deal- 
ing with  matrimony  still  belong  to  the  State.^  The  Church  has 
not  yet  any  legislative  power  over  marriage;  it  leaves  it  to  the 
decision  of  the  civil  law  and  superimposes  upon  it  its  own 
rules,  limiting  itself  to  punishing  by  means  of  penances  the 
faithful  who  do  not  respect  them.^  Marriage,  upon  the  condi- 
tion and  the  effects  of  which  the  civil  judges  are  still  pronoun- 
cing their  views,  is  always  a  private  act,  a  pact  between  two 
families,  wherein  the  avoidance  of  misalliances  is  especially 
sought  for,  where  the  wishes  of  the  parties  are  not  always 
taken  into  consideration  and  the  rupture  of  which  is  possible 
by  means  of  divorce. 

1  Meynial,  "Le  Mar.  ap.  les  Invasions,"  ("N.  R.  H.,"  1898);  Lefebvre,  op. 
cit.,  also  correctly  lays  great  stress  on  the  law  of  the  Lower  Empire;  "Wis.," 
Ill  and  IV. 

2  "Capit.,"  "  Compiftgne,"  "  Verberie " :  the  Papal  legate  says:  "  hoc  ecclesia 
non  recipit,"  "Edit  Pistes,"  30,  31  (marriages  of  slaves).  Upon  secular  juris- 
diction, see:  "Bai.,"  7,  1.  "Alam.,"  39;  Council  of  Tours,  567,  c.  1.5;  liuzicre, 
"Form.,"  113.  Neither  the  "False  Decretals,"  nor  Reginon  (906)  attributes 
exclusive  jurisdiction  to  the  Church. 

*  The  secular  power  intervened  when  the  Church  was  powerless.  "Edit 
de  Childeb.,"  596,  c.  2;  "Cap.,"  802,  c.  33,  35;  826,  c.  13;  829,  c.  3.  "F. 
Capit.,"  5,  9.  The  Church  is  the  au.\iliary  of  the  civil  power.  One  must  not 
conclude  from  these  texts  that  its  disciplinary  action  had  the  effect  of  de- 
priving the  State  of  its  rights.    Anseg.,  I,  104;  "Edit  Pistes,"  864. 

87 


§  97]  THE    FAillLY  [Chap.  I 

§  97.  The  Church  and  the  Religious  Marriage.  —  In  the  tenth 
century  ^  the  Church  profits  by  the  anarchy  resulting  from  Feu- 
daHsm  to  reserve  for  its  tribunals  the  exclusive  cognizance  of 
questions  relating  to  marriage.^  Its  legislation  ^  is  rounded  out 
by  borrowing  from  the  Roman  law,  from  the  Germanic  Customs, 
and  even  from  the  Jewish  law.^  Not  content  with  designating  the 
birth  of  children  and  a  life  in  common,  with  the  effect  of  lending 
one  another  mutual  assistance,  as  the  object  of  marriage,  it  caused 
its  matrimonial  law  to  rest  primarily  on  two  fundamental  ideas :  ^ 
(a)  marriage  is  a  remedy  for  incontinence;  ®  (6)  it  is  a  sacrament, 
a  religious  deed,  which  symbolizes  the  union  of  Christ  with  the 
ChurchJ    From  this  conception,  which  in  one  sense  is  very  ideal- 

^  Date  disputed;  in  the  writings  of  Hincmar  the  exclusive  right  of  the 
Church  is  not  recognized.  "Cone,  de  Tribur.,"  895,  39,  Dig.  X,  4,  1,  1; 
Sohm,  "Z.  f.  Kirchenr.,"  1870,  p.  193;  Dove,  "De  Jurisd.  EccL,"  1855;  Fried- 
berg,  "De  Fin.  Int.  Eccl.  et  Civit.,"  1861. 

2  The  East:  "Nomocanones"  (the  combination  of  ci\al  laws  and  canons 
of  the  Church);  the  emperor,  a  sovereign  judge,  grants  dispensations;  the 
tribunals  who  give  judgment  upon  matrimonial  actions  are  composed  half  of 
laity  and  half  of  clergy.  "Bulle  d'or"  of  Alexis  Commene,  1086,  giving  up 
matrimonial  actions  to  the  bishops.  Cf.  as  to  Russia,  Esmein,  I,  27;  Mitrovits, 
"Die  Kormtschayakniga,"  1898  ("N.  R.  H.,"  1899,  760). 

3  Gratian,  2d  part,  C,  27-33,  q.  3;  C,  33,  q.  4,  2,  C„  36;  Dig.  X.,  4  ("de 
sponsalibus  et  matrimoniis");  Trans,  and  notes  in  "  Jostice,"  X;  Council  of 
Trent,  Sess.  24;  Zdekauer,  "La  Confessione  di  Legge  nei  Patti  Dotah  di  Fi- 
renze"  ("R.  Ital.  p.  le  Scienze  Giurid.,"  Ill,  1887,  p.  237),  publishes  the 
chapter  on  marriage  of  Rainier  de  Perouse,  "De  Contractibus  Juchciis  et 
Voluntatibus  Ultimis";  Wunderlich,  "Tancredi  Summa  de  Matr.,"  1841; 
Freisen,  XIII;  Maitland,  "  Vacarii  Summ.  d.  Matr."  ("  L.  Q.  R.,"  XIII,  133). 
"Ass.  de  J.,"  "C.  d.  B.,"  107;  "Siete  Part.,"  IV;  P.  Durand,  "Specul.,"  4,  4. 

*  Rabbinoviez,  "L^gisl.  Civile  du  Talmud,"  1880;  "L.  de  Compiegne  de 
Veille,"  "HiEbrorumde  connubiis,"  1673;  "  L.  de  Modene,"  "Cer6m.  et  Cou- 
tumes  .  .  .  parmi  les  Juifs,"  tr.  Simonville,  1710;  Ewald,  "Alterh.  d.  Volk. 
Israel,"  1866;  Dareste,  "Etudes,"  p.  18;  Duschak,  "Mos.  Talmud.  Eherecht," 
1864;  Pavly,  "Code  du  Jud.,"  1896. 

s  Friedberg,  "R.  d.  Eheschl.,"  142,  546;  Freisen,  29;  Esmein,  I,  63; 
II,  122,  151;  P.  Lombard,  "Sent.,"  Pars.  IV,  Dist.  25  (Vol.  VII  of  "Op.  S. 
ThomtB,"  1612;  St.  Bonaventure,  "Sent.,"  IV,  27  (Op.,  1681);  "Summa 
Hostiensis,"  1568,  p.  284;  Panorm.,  "in  Decretal.,"  ed.  1547,  Vol.  VII;  Felin. 
Sandeus.,  "in  Decretal.,"  ed.  1529,  Vol.  Ill,  "deSpons.";  Sanchez,  van  Espen, 
etc.;  Tephany,  "Expos,  du  dr.  Canon.,"  1891;  Schuitzer,  "Kathol.  Eherecht," 
1898;  Hinschius,  etc. 

8  Paul,  "  1  Cor.,"  vii,  2,  9  (cf.  "  1  Tim.,"  v,  14).  Cf.  "Eph.,"  v.  According 
to  the  Christian  idea,  the  sexual  union  has  something  impure  in  it,  and  con- 
tinence is  a  state  which  is  superior  to  marriage.  —  Cf.  disfavor  towards  celibacy 
in  the  old  legislations;  in  the  Middle  Ages,  privileges  of  married  persons,  of 
those  who  have  a  large  number  of  children:  Salvioli,  no.  180.  Under  the 
monarchv,  privileges  to  persons  married  under  25  years,  fathers  having  10  to 
12  children  (1666;  Isamb.,  18,  90;  1667,  id.,  190).  Trent,  sess.,  24,  c.  10. 
Contra,  Protestants,  "  Genesis,"  ii,  18. 

"  Paul,  "Eph.,"  V,  32:  "Sacramentum  hoc  magnum  est."  Can  the 
Greek  " nva-T'fjpiov"  be  understood  as  appl>'ing  to  a  Sacrament  in  the  technical 
sense?  hammer,  "Sacr.  d.  Ehe.,"  1858;  Hahn,  "Lehre  v.  d.  Sacram.,"  1864; 
Freisen,  29;  Viollet,  p.  395,  n.  Ij  cites  de  Smedt,  "Principes  de  Critique 
Histor.,"  p.  Ill,  as  to  St.  Augustme,  "De  Bono  Conjug.,"  18,  21  {cf.  here- 


Topic  l]        MARRIAGE.      LEGISLATION   AND    JURISDICTION  [§  9S 

istic  and  in  another  very  commonplace,  the  Church  drew  its 
governing  ideas  on  the  subject  of  the  celebration  of  marriage,  the 
conditions  or  impediments  brought  to  bear  upon  its  formation 
and  its  effects  and  its  dissolution.  It  gave  Europe  a  uniform 
law  of  marriage,  and  it  is  also  only  just  to  add  that  "it  made  the 
conjugal  union  moral,  and  protected  the  weakness  of  Vv'omen" 
without  weakening  the  authority  of  the  husband,  took  care  of 
the  children,  and  imposed  the  law  upon  the  spouses  if  they  hap- 
pened to  forget  it  in  order  to  give  preference  to  their  personal 
convenience  or  their  caprices.  It  is  the  Church,  moreover,  which 
founded  the  modern  family.  But  its  legislation  is  not  perfect; 
we  must  make  reservations,  especially  on  the  subject  of  its  repul- 
sive casuistry,  on  that  excessive  number  of  impediments  which  it 
devised,  on  the  extremities  to  which  it  went  as  far  as  divorce  is 
concerned.  Its  jurisdiction,^  which  originally  only  related  to  the 
existence  of  the  sacrament,  of  the  bond  ("foedus  matrimonii"), 
extended  to  the  accessories:^  adultery,  legitimacy  of  children, 
judicial  separation  (and  separate  maintenance),  marriage  con- 
tracts (marriage  portion,  dower). 

§  98.  Civil  Marriage.  —  The  Reformation  weakened  the  au- 
thority of  the  Church  in  matters  of  marriage;  it  ceased  to  see 
therein  a  sacrament,^  and,  while  preserving  the  canon  legislation 
in  its  entirety,  it  modified  many  of  its  provisions  by  way  of  inter- 
pretation or  even  by  amendments.  In  certain  Catholic  coun- 
tries,'^ particularly  in  France,  the  rights  of  the  Church  sustained  a 
severe  blow  caused  by  the  decline  of  its  authority  under  the  prog- 
ress of  monarchic  absolutism.^    Both  legislation  and  jurisdiction 

inafter,  Divorce),  and  a  few  important  passages  from  Tertullian  upon  the 
primitive  Christian  conception  of  marriage:  "Ad  Uxor.,"  2,  9;  "De  Pudic," 
4;  "De  Monog.,"  11.  —  As  to  the  meaning  of  "sacramentum,"  c/.  "Acad. 
Inscr.,"  Mar.  1,  1901. 

1  Lesurre,  "  Jurid.  de  I'Eglise  s.  le  c.  de  Ma,r.,"  1823. 

2  Concurrence  of  the  secular  tribunals:  legitimacy  (with  respect  to  a  feudal 
inheritance);  marriage  agreements:  Beaurnanoir,  18,  1;  13,  3,  9,  10.  Cf. 
Conference  of  Vincennes;  P.  Pithou,  "Roisin,"  p.  373;  St.  Thomas,  book 
infra  cit.,  p.  1010;  Siciliano,  "Giurisd.  Eccles.,"  1896. 

'  Luther,  "Von  Ehesachen,"  1530;  "Tischreden,  pass.";  Calvin,  "Inst.," 
4,  19;  Slrampff,  "Luther  iid.  die  Ehe.,"  1857 ;  Friedberg,  "R.  d.  Eheschl.," 
153;  Scheurl,  "Abhandl.,"  437.  Moreover  civil  marriage  made  its  appear- 
ance only  momentarily  in  England,  under  Cromwell;  in  Holland  it  has  been 
optional  since  1580. 

''  The  Church  preserves  its  rights  in  Italy  and  Spain,  but  not  in  Austria 
and  P>ance:  Huszar,  "De  Potest.  Eccles.  circa  Matr.,"  1900. 

*  Launoy,  "Regia  in  Matrim.  Potestas,"  1674;  Gerbais,  "Pouv.  de  1  Eglise 
et  des  Princes  s.  les  Emp6ch.  du  Mar.,"  1690;  Boileau,  "Emp6ch.  du  Mar.," 
1691;  Mantrot,  "Veritable  Nature  du  Mar.,"  1788;  Le  Ridant,  "Deux  Quest, 
sur  le  Mar.,"  1753;  Dujour,  "Dr.  des  Souv.  s.  les  Emp^ch.  Dir.,"  1787;   "Rel. 

89 


§  98]  THE   F.\iIILY  [Chap.  I 

were  almost  entirely  taken  away  from  it,  or,  at  least,  it  was  re- 
duced to  that  disciplinarian  effect  over  the  faithful  which  belonged 
to  it  in  the  Roman  period,  which  still  belongs  to  it  to-day,  and 
which  is  scarcely  of  a  nature  to  arouse  the  distrust  of  the  State. 
The  point  of  departure  of  this  remarkable  evolution  was  in  a 
theological,  legal  theory  of  which  Saint  Thomas  Aquinas  was  per- 
haps the  first  to  give  the  formula.^  According  to  that  writer, 
marriage  could  be  regarded  at  one  and  the  same  time:  1st.  As  a 
contract  of  natural  law  (a  borrowing  from  the  Roman  writings, 
which  understood  by  this  the  law  which  is  given  to  man  and  to 
animals).  2d.  The  civil  contract,  that  is  to  say,  one  governed 
by  the  Roman  law  as  it  was  organized,  so  long  as  the  Church  did 
not  have  the  monopoly  concerning  questions  relating  to  marriage. 
3d.  A  sacrament,  of  which  the  contract  was  the  element  and 
which  could  not  exist  without  the  latter.  The  civil  marriage 
and  the  religious  marriage  are  separated  in  this  analysis,  whereas 
in  former  times  they  were  not  distinguished.  These  speculations, 
which  had  no  very  great  bearing  so  long  as  they  remained  shut 
up  within  the  Schools,  were  propagated  during  the  sixteenth  cen- 
tury by  virtue  of  the  favor  shown  them  by  the  Renaissance  and 
the  Reformation;  they  w^ere  presented  before  the  Council  of 
Trent  by  more  than  twenty  prelates  and  theologians,  and,  a 
more  serious  thing,  the  jurists  took  possession  of  them  in  order  to 
make  of  them  a  weapon  against  the  Church.^  From  this  they 
came  to  the  conclusion  that  marriage  ought  to  be  subjected  to 
the  Church  in  so  far  as  it  was  a  sacrament,  to  the  State  in  so  far 
as  it  was  a  civil  contract.  To  each  one  of  these  powers  its  own 
sphere;  a  good  solution  —  if  we  could  tell  w^here  one  ceases  and 
the  other  begins.  Theologians  and  jurists  fiercely  contested  with 
one  another  for  a  large  portion  of  the  ground,  and  the  battle, 
very  keen  in  the  time  of  Pothier,  has  lasted  until  the  present 
time.^     But,  rightly  or  wrongly,  the  kings  did  not  hesitate,  from 

de  la  Contest.  61  dans  rUniv.  de  Louvain,"  1785;  Lorry,  "Rech.  s.  le  Mar.," 
1760;  Va7itroys,  "Th.,"  p.  3. 

1  "  Somme  c.  les  Gentils,"  I,  4,  c.  78.     Cf.  "Summa  theol.,"  Ill  add.  41. 

2  Parliamentarians  and  Galileans,  second  haK  of  the  XVIth  cent.  See  es- 
pecially Launoy,  op  cit.,  in  "Opera,"  1731,  I,  2;  Le  Ridant,  etc.;  Maultrot, 
"Ex  des  Principes  du  Pastoral  de  Paris  s.  le  Contrat  de  M."  (1788);  Boyer, 
"Examen  du  Pouv.  Legisl.  de  I'Eglise  s.  le  Mariage,"  1817.  The  Itahans, 
such  as  Bellarmin,  do  not  admit  that  the  civil  contract  was  distinct  from  the 
sacrament:  Tabaraud,  "Principes  sur  la  Dist.  entre  le  Contrat  et  le  Sacr.," 
1825.  Pius  IX  in  the  "Syllabic,"  65,  s,  condemns  opinions  which  are  contrary 
to  this  doctrine. 

3  Encycl.  of  Leo  XIII,  Feb.  8,  1880.     Cf.  Trent,  s.  24,  c.  3-12. 

90 


Topic  l]       MARRIAGE.      LEGISL-\TION   AND   JURISDICTION  [§  99 

the  sixteenth  century  on,  to  enact  laws  on  the  subject  of  mar- 
riage, creating  impediments.^ 

§  99.  Legislation  and  Jurisprudence  of  the  Monarchic  Period. 
—  In  a  general  way,  the  State  borrowed  its  law  from  the 
Church;  ^  it  adopted  it  and  made  it  its  own,  not  by  virtue  of  a 
general  law,  but  in  the  way  of  court  decisions,  and  it  was  under- 
stood that  the  invasions  of  the  canon  law  should  not  be  applied 
by  the  French  tribunals  unless  they  were  promulgated  as  laws  of 
the  State.  Thus,  the  decrees  of  the  Council  of  Trent  relative  to 
marriage  were  not  received  in  a  lump,  but  the  most  important 
provisions  were  promulgated  and  sanctioned  by  the  Royal  Ordi- 
nances.^ Without  having  its  jurisdiction  disputed,  any  more  than 
its  power  of  legislating  was  denied  it,  the  Church  came  to  lose 
its  jurisdiction  over  the  majority  of  questions  relating  to  matri- 
mony. Litigations  over  which  the  State  had  never  lost  all  right 
reverted  back  to  the  tribunals  of  the  State:  system  of  posses- 
sions between  spouses,  separate  maintenance,  legitimacy  of  chil- 
dren, adultery.'*  As  to  marriage,  the  lay  judges  seized  hold  of 
the  difficulties  which  it  gave  rise  to  every  time  the  sacrament 
was  not  made  use  of.  Judicial  separation,  says  Pothier,  does  not 
affect  the  tie  of  marriage,  because  this  tie  still  goes  on  existing; 
the  re-establishment  of  the  conjugal  domicile  by  the  wife  is  a 
question  of  the  police  power  and  springs  from  the  force  of  the 
State;  impuberty  is  a  question  of  fact;  rape,  concealment,  bigamy, 
are  offenses  punished  by  the  Decrees.  They  thus  come  to  an- 
nulling not  the  sacrament,  but  the  contract,  without  which  the 
sacrament  could  not  exist.  As  to  the  little  which  remained  to  the 
ecclesiastical  judges,  questions  of  "fcedere  matrimonii,"  the  ap- 
peal against  abuse  of  power  permitted  of  the  submission  of  the 
judgments  of  the  ecclesiastical  judges  and  the  acts  of  ecclesiastical 
authority  to  the  Parliaments.^    The  Courts  of  the  Church  thus 

1  For  example,  prohibition  of  marriage  between  whites  and  persons  of 
color  (1778;  Isamb.,  XXV,  596).  Soldiers  cannot  marry  without  the  king's 
permission  (1788;  Isamb.,  XXXVIIl,  596);  Isa7nb.,  XXI,  319,  121.  Pro- 
hibition of  marriages  abroad.     lb.  19,  370,  510.     Cf.  D.,  March  8,  1793. 

2  Le  Ridant,  "Code  Matrim."  (texts),  ed.  1770  (bibl.);  Du  Perrat/,  "Tr.  du 
Contr.  deMar.,"  1741;  ed.  Serieux,  1761;  Pothier,  1768;  Horry,  1750;  Astruc, 
1758;  Indices:  Ferriere,  Guyot,  etc.,  see  "Manage,"  etc.,  Launay,  "Instit.," 
etc.     Basdevant.  "Th6se,"  1900.     Glasson,  "Acad.  sc.  mor.,"  1900,  32. 

'  Maultrot,  Examen  des  D6cr.  du  Cone,  de  Trente  et  de  la  Jurisp.  Fr. 
en  Mat.  deMar., "1788. 

*  Viollet,  p.  399,  n.2,  cites  Chenu,  "Rtatuta  Judicior.  Ecclesiastic."  (Gal- 
lician  Council  of  1606),  1621.     Benidemps-Iieaupre,  "Cout.  de  I'Anjou,"  I,  52. 

'  Pothier,  no.  350.  Doc.  of  1712,  cited  by  Davergier,  "Et.  de  Leg,"  p.  37. 
The  ParUaments  having  cognizance  of  cases  of  nullity  can  demand  that  the 

91 


§  99]  THE   F.UIILY  [Chap.  I 

found  themselves  abandoned,  and  in  the  rather  infrequent  cases 
when  they  were  appealed  to  their  decisions  were  subordinate  to 
the  good  will  of  the  judges  of  the  king.  In  1789  their  com- 
petence was  purely  theoretical. 

§  100.  The  Revolutionary  Law/  had  but  little  to  do  except  to 
round  out  the  Monarchic  legislation,  starting  with  the  new  prin- 
ciple of  the  liberty  of  the  conscience.  As  both  logic  and  tolerance 
required,  civil  marriage  was  organized  by  the  State  independ- 
ently of  the  religious  sect  to  which  the  husband  and  wife 
belonged,  and,  if  one  may  say  so,  parallel  to  the  religious  mar- 
riage. Leaving  the  Church,  or,  rather,  the  churches,  free  to  im- 
pose upon  their  faithful  the  conditions  or  the  forms  which  might 
please  them,^  the  State  limited  itself  to  not  recognizing  marriages 
which  did  not  conform  to  the  rules  which  it  had  established.^ 

parish  priest  give  the  parties  the  nuptial  benediction:  Houard,  "Diet  de  dr. 
Norm.,"  I,  337. 

1  Perreau,  "E16m.  de  Legisl.  Naturelle,"  year  IX;  Viollet,  p.  398,  n.  1, 
cites  a  small  Code  relating  to  marriage  which  was  the  work  of  the  Constitu- 
tional Church  ("Collection  des  Pieces  impr.  p.  Ordre  du  Concile  National," 
1797)  and  which  departs  from  the  Civil  legislation.  Nougarede,  "Leg.  s.  le 
Mar.,"  year  X;  "Hist,  des  Lois  s.  le  Mar.,"  1803. 

2  Could  the  reUgious  ceremony  precede  the  ci\dl  marriage?  The  "Art. 
Org.,"  18,  Germ.,  year  X,  3,  54,  forbade  it. 

3  Bassibey,  ov.  cit.  1899  (Procedure);  Peries,  "Le  Canoniste,"  1892. 


92 


Topic  2] 


BETROTHALS 


[§101 


Topic  2.     Betrothals 


§  101.  Barbarian  Period. 
§  102.  The     Same.     Betrothal 
sential. 


Es- 


§  103.  Consent     replaces     Betrothal. 

The  Canon  Law. 
§§  104,  105.  Betrothal  Restored. 


§101.  Barbarian  Period.  —  The  Betrothals  (or  promises  of 
marriage)  which  were  in  constant  use,  it  seems,  in  the  ancient 
Roman  Law,^  acquired  a  special  importance  under  the  Lower 
Empire^  w^th  the  very  widespread  practice  of  the  gift  "ante 
nuptias."  They  were  accompanied  by  the  giving  of  earnest-money, 
of  a  ring,^  and  sealed  with  a  kiss  ^  ("osculo  inter veniente").^  If 
they  were  broken  before  the  "osculum,"  the  gifts  of  the  engaged 
woman  had  to  be  restored  in  their  entirety;  after  the  "osculum" 
she  kept  half  of  them.  Thus  they  already  amounted  to  half  the 
marriage.^ 

In  the  Germanic  Law  marriage  is  split  up  into  two  acts:  1st, 
the  betrothals;  2d,  the  nuptials  or  marriage  properly  so  called.^ 
The  betrothals  ^  consisted,  among  the  early  Germans,  as  among 
many  primitive  people,  in  the  purchase  ^  of  the  w^oman  ^^  from  her 

1  And  in  the  Jewish  law:  Freisen,  206,  p.  1009;  Mayer,  "Rechte  d. 
Israeht.,"  1866;  Frankel,  "IVIos.  Talmud.  Eher."  1860. 

2  Meynial,  op.  cit.  (effects  since  the  "Lex  JuUa");  Laroque,  "Don  entre 
Fiances.,"  1898;   Lefebvre,  op.  cit. 

3  Deloche,  "Le  Port  des  Anneaux"  ("Mem.  Ac.  Inscr.,"  35);  Kornmann, 
"De  Annulo  Triphci,"  1756.  CJ.  Jewish  Customs.  Bruns,  "Pontes,"  p.  390 
(5th  ed.);  Hoffman,  "Wien.  Akad.,"  1870,  825;  Chaisemartin,  "Prov.," 
p.  288. 

*  Christian  usage:  Tertullian,"De'Ve\.  Yirg.,"  c.  2  ("deosculosponsahtio"). 
Cf.  Rivier,  "Dr.  de  Famille  Remain,"  p.  135. 

6  Tarnas.na,  "Osculum  Interveniens "  ("  R.  Stor.  Ital.,"  1885,  II,  259). 
"L'oscle,"  in  the  documents  of  the  Middle  Ages  means  the  gift  itself:  Girart 
de  Roussillon,  pp.  8,  17,  35,  ed.  Meyer.  See  Du  Cange.  See  post,  "Increase 
of  Marriage  Portion."  Viollet,  421;  mentioned  in  the  eighteenth  century  at 
Limoges.     "  Touraine,"  13;  Lattes,  "Dir.  Consuetud.  Lomb.,"  229. 

6  Constantine,  "Cod.  Thdod.,"  3,  5,  5;  "Cod.  Just.,"  5,  3,  16;  Esmein, 
"M61anges,"  p.  416;     "Wis.,"  3,  1,  5;  "  Fuero  Viejo  de  Castille,"  5,  1,  4. 

^  Cf.  Roman  sale  and  delivery  which  follows  it. 

8  Koenigsivarter,  "Et.  hist.  s.  le  D6vel.  de  la  Soc,"  1850,  p.  19;  TMvenin, 
"N.  R.  H.,"  1880,  i^l;  Schupfer,  "Arch.  Giur."  1868;  Friedberg,  §  1.53,  n.  12; 
Beauchet,  "Form,  et  Dissol.  du  Mar.  d.  le  Dr.  Islandais,"  "  N.  R.  H.,"  1883; 
Marignan,  op.  cit.;  Grimm,  "R.  A.,"  421,  Schmid,  "Ges.  de  Angels.,"  Table. 
8ee"Ehe." 

'  Criticism  of  this  idea  by  Lefebvre,  II,  354;  Meynial,  pp.  78,  90.  Cf. 
"Acad.  16g.  Toulouse,"  1900  ("Le  mariage  par  Achat");  Viollet,  "Burg.,"  42, 
2,  Esmein,  "  N.  R.  H.,"  1899,  613;  Chaisemartin,  "Prov.,"  p.  285. 

1°  Or  of  the  "mundium"  over  the  wife,  according  to  a  formula  which  does 

93 


§  101]  THE   FAjMILY  [Chap.  I 

father  (or  from  her  "mundoaldus").^  The  price  was  fixed  by  the 
parties,^  that  is  to  say,  by  the  relatives  of  the  betrothed  woman 
and  by  her  betrothed,  assisted  or  not  assisted  by  the  members  of 
the  family.  In  time  a  Customary  or  legal  rate  came  to  be  estab- 
lished,^ as  in  the  case  of  "Wergeld."  The  pa^^l^ent  of  the  price 
was  an  indispensable  condition  of  the  betrothal;  in  conformity 
with  the  ancient  theory  of  obligation,  it  was  a  contract  "in  re."  ^ 
The  engaged  man  negotiated  with  the  relatives  of  the  woman 
without  the  latter  necessarily  being  consulted.^ 

From  this  primitive  legislation  progress  was  made,  little  by  lit- 
tle,^ to  a  law  by  means  of  which  the  betrothals  did  not  disappear, 
but  were  consummated  in  another  way.  The  purchase  price  be- 
came divided  into  two  parts:  a  small  sum  paid  for  symbolic  pur- 
poses to  the  relatives  of  the  woman  ("sou  et  denier"  among  the 
Franks),^  and  a  stipulated  marriage  portion  to  the  woman  herself.^ 
The  consent  of  the  relatives,  always  necessary,  was  no  longer 
sufficient;  ^  that  of  the  woman  was  also  required.^"  The  roles  be- 
not  fundamentally  differ  from  ours,  but  which  brings  out  the  difference  be- 
tween betrothals  and  the  purchase  of  a  slave:  "Alam.,"  54,  2,  "Liut.,"  127 
("mundium  facere  ex  ea"). 

1  Marriage  by  means  of  abduction  is  still  possible  as  an  exception  in  cer- 
tain barbarian  laws:  "Sal.,"  13,  10;  "Alam.,"  52,  51;  "Burg.,"  11; 
"Add.,"  1,  14;  "Saxon.,"  6;  "Roth.,"  190;  "Liut.,"  119;  "Bar.,"  8, 
16;  "Wis.,"  3,  1,  2;  Dargun,  "Mutter.,"  1883,  21,  111.  See  post,  "Mar- 
riage without  Betrothals."     "  Z.  V.  R.,"  V,  334;  XII,  129. 

2  "Burg.,"  34,  52;  "Wis.,"  3,  4,  2;  "Roth.,"  213;  Val.  de  Lievre,  "  Laune- 
gild,"  1877,  pp.  18,  130,  212,  277. 

3  "Sax.,"  VI  (3003.). 

*  "  Wis.,"  3,  4,  2  (Anc),  "  Roth.,"  215;  "Burg.,"  52,  3. 

^  It  is  the  same  in  the  old  Roman  law:  "  Vit.  Salaberg.,"  6;  Blade,  "Contea 
Pop.  de  la  Gascogne,"  III,  23.  Henry  IV  marries  his  daughter,  the  Princess 
Triste-Mine,  without  consulting  her;  afterwards  he  breaks  the  marriage  in 
the  same  way  as  he  had  formed  it.  "Liut.,"  12,  19.  Infra,  "Marriage 
without  Betrothals." 

*  The  evolution  has  taken  place  more  or  less  rapidly  according  to  the  people; 
it  has  not  always  been  very  regular.  From  tliis  there  arise  difficulties,  the 
details  of  which  we  cannot  enter  into.     Cf.  "Contract  of  Marriage." 

'  Marriage  of  Clovis:  FredSgaire,  18;  Junghaus,  "Hist,  de  Childerich  et 
Clodovech,"  p.  140  {Monod  trans.);  Greg.  Tours,  9,  16;  Rozihre,  "Form.," 
230  s:  "Roth.,"  178;  "Liut.,"  VI,  119. —  This  fictitious  price  is  sometimes 
callea  "arrha."  Examples  of  betrothal  contracts:  Thevenin,  "Textes,"  nos 
4,  48  and  135;  Ficker,  "Forschungen,"  IV,  458,  505;  Prampero,  "Matrim. 
e.  Patti  Dotali.  Doc.  Friul.  de  Sec.  XIII,"  1887.  Persistence  of  these  forms  in 
Swedish  law:  Lehr,  "Grande  Encycl.,"  see  "Mariage";  Dareste;  Beauchet. 

*  See  "Contract  of  Marriage,''  Council  of  Aries,  524;  Yves  de  Chartres, 
"Part.,"  8,  e.  144;  Labbe,  "Cone,"  VIII,  633;  Martene,  "Thesaur.,"  I,  142  6; 
Viollet,  356. 

9  "Form.  Tur.,"  14;  Lindenbr.,  7;  Rozihre,  231.     Cf.  Dig.,  2,  7,  11. 

10  "Roth.,"  182,  195;  "Liut.,"  120;  "Wis.,"  3,  3,  1  and  3,  1,  2  (prohibition 

forbidding  relatives  to  marry  a  woman  off  against  her  wishes) ;  Marculfe,  2, 

16.  29;  Greg.  Tours,  "de  Vit.  Patr.,"  16,  20.    "^Life  of  St.  Bertha,"  D.  Bouquet, 

III,  622;  "Praecept.  Chlot.,"  7:  that  no  one  shall  wed  a  woman  against 

94 


Topic  2]  BETROTHALS  [§102 

came  reversed.  The  woman  engaged  herself/  the  relatives  being 
limited  to  giving  her  the  authority  to  do  so.  At  the  same  time, 
the  contract,  which  was  already  "  in  esse,"  became  express}  Under 
the  Roman  influence  was  introduced  the  custom  of  stating  in 
writing  the  delivery  of  the  marriage  portion  by  the  husband  to 
the  woman,  and  consequently  the  betrothals  themselves,  of  which 
this  was  a  clause  ("libellus  dotis").  The  "carta"  could  thus  be 
the  only  formal  element  of  the  contract,  but  the  drawing  up  of  a 
writing  never  became  a  necessary  condition  of  the  formation  of 
the  latter.^ 

Already  in  certain  barbarian  laws  one  sees  the  woman  thus 
stepping  into  the  foreground  when  it  is  a  question  of  contracting 
a  marriage.  Outside  of  economic  considerations,  which  will  be 
pointed  out  later  on,  it  is  to  the  Roman  customs  and  Christian 
ideas  ^  that  this  transformation  should  be  attributed. 

§  102.  The  Same.  Betrothal  Essential.  —  Whatever  their  form, 
betrothals  are  indispensable.^     Such  is  their  importance  that  it 

her  will  by  invoking  the  "auctoritasregia."  "L.  Rom.  Wis.";  "Cod.  Th6od.," 
3,  10,  1:  Lining,  12,  581. 

1  In  the  novel,  "Perceforest,"  a  young  girl  answers  to  the  man  who  is 
asldng  for  her  consent:  "Sir,  what  is  the  pleasure  of  my  friends  pleases  me." 
Dumeril,  "Etudes  d'Archeol."  p.  40.  "T.  A.  C,  Norm.,"  3.  In  Navarre  the 
girl  may  refuse  two  of  the  suitors  who  are  offered  to  her  by  her  father,  but  she 
is  compelled  to  accept  the  third  one;  Yanguas,  "Dice,  de  las  Antigued,  de 
Navarra,"  see  "Matrimonis."  "Le  Fuero  Real,"  4,  10,  8,  forbids  the  father 
to  marry  off  his  daughter  against  her  wishes:  J.  d'Ibelin,  171. 

2  Cf.  "N.  R.  H.,"  1880,459;  Val  de  Lihvre,  "Launegild,"  18,  130,  239. 
Schupf.,  I,  116.  Giving  of  a  rmg  in  the  guise  of  earnest-money:  "Liut.," 
5,  30;Girart  de  Roussillon,  p.  17.  Giving  of  the  "  Festuca  " :  Edict.  Chilp.,  c.  7. 
Real  or  simulated  oath,  "manuahs  porrectio"  ("Sikirheit") ;  Ass.  Jdrus.,  "  C.  d. 
B.,"162;  "Reg.  Grim,  du  Chatelet,"  I,  151.  Cf.  "Contracts."  —  On  the  ring 
and  the  earnest-money  see :  Sohm,  "Eheschl.,"  103,  162;  Friedberg,  26;  Stobbe, 
"  Z.  R.  G.,"  XIII,  228;  Hofmann,  "  Wien.  Akad.,"  1870,  834;  Grimm,  111,  432; 
"Fragm.  Juris  Sicuh,"  ed.  Merkel,  1856,  p.  20.  — Burgundy,  exchange  of  food, 
etc.  —  Giving  of  the  money  in  the  Catholic  Uturgy  (Rituals  of  the  Middle 
Ages:  the  fianc6  puts  13  deniers  in  a  plate).  Goncourt,  "Hist,  de  Marie- 
Antoinette,"  p.  22:  in  1770  Louis  XVI,  who  was  at  that  time  dauphin, 
presented  13  pieces  of  gold  to  Marie  Antoinette  with  his  ring.  The  same 
custom  is  found  in  Barrois,  Dijon,  and  Bordeaux,  according  to  Viollet,  419,  3. 
Cf.  "Etabl.  de  S*.  Louis,"  I,  247:  the  number  13  is  not  arbitrary;  in  the  old 
Prankish  system  of  coinage  13  "  deniers  were  equal  to  one  sou  and  one  denier; 
then  the  marriage  took  place  by  the  sou  and  the  denier."  "Gr.  Encycl.," 
see  "Anneau";  Brandileone,  "Z.  f.  Kirch.,"  1900,  311. 

3  "Rib.,"  37,  2;  "Wis.,"  3,  1,  9.  Cf.  "_Conc.  Aries,"  524.  In  the  absence 
of  the  setting  of  a  marriage  portion,  marriage  degenerated  into  concubinage: 
Bruns,  "Canon.  Apost.  et  Cone,"  1839,  does  not  give  this  canon,  which  is 
found  in  R^ginon,  Yves,  etc.     Gratirm,  D.,  30,  q.  5,  c.  6  (ed.  Richter). 

*  The  church  proclaims  the  principle  that  after  a  certain  age,  15,  16, 
17  years,  one  cannot  be  "desponsata  against  one's  will:  Wasserschleben, 
"Bussordn.";  "Cap.  Thcod.,"  c.  18;  "  Poenit.  Theod.,"  II,  12,  36;  "Cone. 
CompiSgne,"  757,  c  VI. 

*  "Marriage  without  previous  betrothals":  Kohler,  "Ehe  mit  u.  Ohne 

95 


§  102]  THE   F-\MILY  [Chap.  I 

could  even  be  maintained  that  the  marriage  related  back  to  the 
betrothals.  It  is  certain  that  they  carried  with  them  several  of 
the  effects  of  marriage.  The  duty  of  fidelity  is  the  same  between 
persons  who  are  engaged  as  between  spouses.^  Of  two  consecu- 
tive marriages  contracted  by  the  same  person,  the  only  one  which 
is  valid  is  the  one  which  is  preceded  by  betrothals.^  But  we  have 
here  results  which  are  rather  penal  than  civil,  and  from  which  we 
must  not  conclude,  consequently,  that  marriage  can  be  reduced 
to  a  question  of  betrothals.^  This  would  be  to  run  counter  to 
the  most  well-established  facts.  The  "traditio  puellse"  or  the 
"nuptise"  are  clearly  to  be  distinguished  from  the  betrothals  and 
are  added  to  them  in  order  to  make  them  complete;^  it  seems  that 

Mimdium"  ("Z.  V.  R.,"  6,  321);  Dargun,  "Mutterrecht,"  pp.  23-43.  Infra, 
"Abduction."  "Consent  of  the  Relatives."  —  (A)  The  father  who  kept  his 
"mundium  over  the  woman  who  had  been  taken  away  was  authorized  to 
take  her  back  from  her  husband,  although  she  had  gone  with  the  latter  will- 
ingly, and  thus  break  the  first  marriage:  Heusler,  II,  277.  But  the_  mar- 
riage existed,  nevertheless,  and  produced  certain  of  its  effects  (repression  of 
the  adultery  of  the  wUe,  "Liut.,"  139).  The  husband  does  not  acquire  the 
"mundium;"  the  wife  loses  the  right  to  inherit  from  her  parents  and  cannot 
have  the  benefit  of  the  rights  of  widows:  "Liut.,"  5,  114,  119;  "Wis.,"  3, 
2,  8;  "Thur.,"  47;  "Roth.,"  188-218;  "Liut.,"  126.  If  the  abductor  pays 
a  composition  to  the  relatives,  Zeumer,  "Form.,"  277,  the  marriage  is 
validated  retroactively:  "Burg.,"  12,  3;  34,  2;  525  (pecuniary  penalties) 
Greg.  Tours^  9,  33.  (B)  In  the  law  of  the  second  formation  nulhty  of  the  mar- 
riage and  illegitimacy  of  the  children:  Greg.  Tours,  9.  33;  "Alam.,"  54 
"Bai.,"  8,  16;  "Sal.,"  71,  1;  "Wis.,"  3,  1,  2;  "Capitul.,^'  3,  413;  Schroeder, 
"Gesch.  d.  Ehel.  g.,"  I,  8.  To  this  inferior  type  of  union,  which  is  a  trace  of 
the  marriage  by  abduction,  we  can  liken  marriage  "sine  manu"  at  Rome: 
Illegitimate  Children;  Glasson,  III,  19. 

1  Cf.  Dig.,  48,  5,  13,  3;  "Cod.  Just.,"  9,  9,  7  (from  which  it  follows  that 
it  is  only  incumbent  upon  the  engaged  woman);  "Rothar.,"  179  (death  of 
the  adulterous  engaged  woman);  cf.  189,  211  et  seq.;  "Wis.,"  3,  4,  2  (Ant.): 
giving  up  of  the  fiancee  and  her  accomplice  to  the  "sponsus,"  who  is  allowed 
to  chastise  her.  —  It  does  not  follow  from  the  fact  that  penalties  are  pro- 
nounced against  the  unfaitliful  fiancee  as  against  the  married  woman  that 
betrothals  produced  all  the  effects  of  marriage;  thus  the  "pretium"  is  only 
finally  acquired  by  marriage  itself:  "Rothar.,"  216. 

2  Pardessus,  p.  667;  "Alam.,"  51,  52;  "Bai.,"  7,  16.  These  texts  merely 
establish  the  existence  of  severe  penalties  against  abductors  and  declare  the 
nullity  of  a  marriage  which  follows  upon  abduction. 

^  Controversy  between  Sohm,  who  has  brought  out  to  the  point  of  exag- 
geration the  importance  of  betrothals,  and  Friedberg.  To  the  authors  cited 
above  add:  Kohler,  "Z.  V.  R.,"  3,  354.  — /?)/ra,  "Children  of  Engaged 
Persons";    Chaisemartin,  p.  289. 

*  Marriage  of  Clovis,  "Fredeg.,"  18  and  20:  "sponsalio"  by  the  "legati" 
of  Clovis,  offering  the  "sou"  and  the  "denier"  to  Gondebaud;  "traditio 
puellae "  from  these  "legati "  at  the  sittings  of  the  court  of  Chalons.  "  Tradere 
per  baculum,"  TMvenin,  no.  135;  "L.  Rom.  Cur.,"  3,  1,  3;  "Sal.,"  46:  mar- 
riage of  widows  at  the  "mallus."  Was  this  a  practice  which  was  obligatory 
in  the  case  of  ordinary  marriage?  There  is  notliing  to  prove  this.  Mar- 
riage of  St.  Bertha  (D.  Bouquet,  III,  622):  public  deUvery,  but  not  to  the 
"mallus";  Marculfe,  2,  15,  16;  "Sal.,"  14,  6:  "puella  quae  druchte  ducitur," 
that  is  to  say,  "per  nuptiatores "  {cf.  " trustis ") .    Germanic  Customs :  "  Braut- 

96 


Topic  2]  BETROTHALS  [§  103 

they  consisted  in  a  sort  of  "deductio  in  domum  mariti,"  a  survival 
of  the  primitive  abduction.  Neither  the  necessity  of  the  Hfe  in 
common,  at  least,  immediately,  nor  the  exercise  of  the  "mundium," 
resulted  from  the  betrothals;  also  it  was  easier  to  break  them  than 
to  dissolve  the  marriage.  But,  as  a  general  thing,  the  engaged 
man  had  the  right  to  compel  her  relatives  to  give  up  the  engaged 
woman  to  him.  It  was  a  positive  obligation  for  them,  just  as 
he  was  bound  to  marry  the  woman  who  had  been  promised  him.^ 
§  103.  Consent  replaces  Betrothal.  The  Canon  Law.  —  The 
Church,  borrowing  from  the  Roman  law  the  well-known  formula, 
Nuptias  non  concubitus  sed  consensus  facit,"  which  harmonizes 
with  its  realistic  and  mystical  conception  of  marriage,  held  it  as  con- 
summated by  the  mere  exchange  of  consent  between  the  husband 
and  wife.  Thenceforth  the  betrothals  ceased  to  be  the  necessary 
preliminary  to  marriage,  and  were  even  confused  with  the  latter.^ 
When  they  did  take  place,  a  distinction  was  made  according  as 
the  spouses  had  manifested  their  intention  to  take  one  another  as 
husband  and  wife  immediately  or  only  in  the  future.^  (a)  In  the 
first  case,  the  betrothals  spoken  by  words  "in  prsesenti"  ("Spon- 
salia  per  verba  de  praesenti")  were  equivalent  to  marriage,  although 

fahrt,"  "Brautlauf,"  Grimm,  p.  733;  Dargun,  "Mutterrecht,"  pp.  111-138. 
Schrors,  "Hincmar,"  see  "  Reims,"  1884,  p.  212.  Brandileone maintsdns  ("Code 
Dipl.  Lagob.,"  n.  74;  "L.  Rom.  Chur.,"  3,  1,  3;  "Form.  s.  Roth.,"  182,  195) 
that  in  Italy  marriage  took  place  before  a  public  officer  ("sculdasius,"  "judex," 
notary).  Custom  of  Gaete  (sixteenth  century):  exchange  of  consent  "interro- 
gante  judice,"  and  the  following  day  "  interrpgante  sacerdote":    Salvioli,  174. 

1  An  unjustified  rupture  carries  with  it  the  payment  of  a  composition,  the 
loss  of  the  earnest-money,  the  restitution  of  the  "pretium  nuptiale"  and  the 
payment  of  a  penalty  previously  provided  for.  See  "  Repudiation  or  Divorce" ; 
"Burg.,"  34;  "Sal.,"  70;  "Bai.,"  7,  15;  "Alam.,"  53;  "Roth.,"  179-192; 
"Liut.,"  5,  30;  Thevenin,  "Textes,"  no.  135;  Greg.  Tours,  4,  47;  9,  32;  10, 
16;  Sjorgren,  "Conventionalstrafe,"  1899.  —  Restitution  of  the  "meta"  to 
the  betrothed  man  if  the  betrothed  woman  dies  before  the  marriage,  "Roth. "; 
and  of  the  double  "meta"  if  the  relatives  of  the  betrothed  woman  are  to  blame 
in  any  way.  In  case  of  the  abduction  of  the  betrothed  woman  the  abductor 
jn\h<t  pay  a  composition  to  the  betrothed  man  and  another  composition  to  her 
parents:  ".Ethelb,"  31. 

2  A  rather  common  usage  of  having  the  betrothals  blessed  by  the  priest. 
Esmein,  I,  102,  shows  why  the  Church  preserved  the  old  practice:  betrothals 
were  a  general  usage,  which  was  in  harmony  wath  the  organization  of  the 
family:  Hericourt,  "Lois  Eccl.,"  "G,"  5;  Durand  dc  Maillane,  "Inst.,"  IV, 
1273;  "Rec.  des  Actes  du  Clerge,"  V,  646.  Sometimes  an  abuse  in  the  case 
of  solemn  betrothals,  the  people  seeing  in  them  a  true  marriage.  Statutes  of 
Aleth,  4,  19. 

^  Rolandus  is  still  unaware  of  this  distinction.  "Summa  Coloniensis," 
in  Scheurl,  "Eheschl.,"  166  (GalHcan  Church);  Dig.  X,44,  3;  "Comp.,"  1,4, 
5.  Yves  de  Chartres  holds  that  betrothals  accompanied  by  the  oath  were  the 
equivalent  of  marriage  and  were  no  more  capable  of  being  dissolved  than  was 
the  latter  (rf.  Fulhert,  "Ep.,"  41) :  Foiirnier,'\\i.  G.  H.,"  1898,  p.  97.  Accord- 
ing to  Gratian,  the  marriage  is  simply  "iuitiatum"  by  virtue  of  the  "spon- 

97 


§  103]  THE   F.UIILY  [Chap.  I 

they  might  not  be  surrounded  with  any  pubhcity  or  accompanied 
by  any  rehgious  ceremony,  (h)  The  betrothals  spoken  by  words 
"de  futuro"  ("  Sponsalia  per  verba  de  future  ")  or  simply  promises 
of  marriage,  obliged  the  engaged  parties  to  proceed  with  the  mar- 
riage and  were  transformed  into  a  marriage  by  the  mutual  giv- 
ing of  consent  or  by  the  "copula  carnalis,"  which  is  but  a  form 
of  it.i 

§  104.  Betrothal  Restored.  —  The  Council  of  Trent  repudiated 
marriage  formed  simply  by  consent,  and  consequently  with  be- 
trothals formed  by  words  "de  prsesenti."  It  left  in  existence  the 
promises  of  marriage  with  the  effect  of  meaning  for  the  engaged 
parties  a  reciprocal  obligation  to  marry  one  another.^  They 
ordinarily  constituted  the  first  clause  of  the  marriage  contract  of 
the  spouses.^  Before  and  after  the  Council  of  Trent  the  betrothals 
preserved  the  character  of  a  contract  of  mutual  agreement;  ^  the 
Ordinance  of  1639  ordered,  it  is  true,  that  they  should  be  expressed 
in  writing,  but  this  Ordinance  only  related  to  the  proof  of  the  act.^ 
In  order  that  the  betrothals  should  exist,  the  reciprocal  consent 
of  the  future  spouses  was  required  on  principle;  but  the  rules  as 
regards  capacity  greatly  reduced  the  force  of  this  principle.  Who- 
soever was  capable  of  marrying,  or  could  decently  hope  to  do  so, 

salia";  it  is  only  "ratum"  by  virtue  of  the  "copula":  C,  34,  c.  27,  q.  2. 
At  the  end  of  the  twelftli  century  the  Roman  Church  adopted  the  distinc- 
tion of  P.  Lombard,  "Sent.,"  4,  27,  1,  between  betrothals  "in  presenti"  and 
"de  futuro";  Dig.  X,  4,  1,  31;  4,  4,  3;  4,  2,  14.  Marriage  is  "initiatum," 
by  means  of  the  betrothals;  "ratum,"  by  means  of  the  consent;  and  "con- 
summatum,"  by  means  of  the  "copula." 

1  Theory  of  the  "matrimonia  prsesumpta"  (completely  abolished  by  Leo 
XIII,  Dec.  15,  1892):  Dig.  X,  4,  1,  30. 

2  The  importance  which  was  given  to  the  solemnity  of  marriage  ought  to 
have  caused  a  disappearance  of  betrothals.  The  "copula  carnalis,"  at  least, 
no  longer  changed  them  into  marriage:  Durand  de  Maillane,  see  "Diet.," 
and  authors  cited. 

5  Out  of  date  motives  given  by  our  old  authors:  (a)  they  served  to  prevent 
people  from  rushing  too  headlong  into  marriage;  but  the  delay  which  sepa- 
rates them  from  the  latter  can  be  very  short;  (b)  impediments  may  arise 
during  this  delay;  but  it  would  be  rather  the  publication  that  would  give 
rise  to  them;  (c)  the  reason  given  by  St.  Augustine  is  strictly  modern:  "Con- 
fess.," 8,  3.     C,  27,  q.  2,  c.  28. 

*  Custom  of  accompanying  the  exchange  of  consent  with  the  gi\ang  of 
some  object,  —  for  example,  a  piece  of  money,  a  fruit  or  a  flower.  Ex.  in 
"Invent  des  Archiv.  du  Dep.  de  I'Aube,"  Scries  G,  1896,  p.  429:  a  man  and 
a  woman  become  engaged  to  a  tune  played  on  a  flute!  P.  309:  a  woman  who 
receives  a  pin  as  a  pledge  of  marriage  has  her  doubts  upon  the  validity  of  be- 
trothals contracted  in  this  manner. 

^  It  was  customary  to  set  out  at  one  and  the  same  time  in  the  same  deed 
(contract  of  marriage)  the  consent  of  the  two  betrothed  parties  and  the  pe- 
cuniary agreements  which  were  made  with  a  view  to  the  proposed  marriage: 
Cayron,  "Le  Practicien  Fr.,"  1665,  p.  343.  Other  examples  in  Viollet, 
p.  423. 

98 


Topic  2]  BETROTHALS  [§105 

was  capable  of  becoming  engaged  ("habilis  ad  matrimonium, 
habilis  ad  sponsalia").  Those  who  had  not  yet  attained  puberty 
could  validly  become  engaged  after  the  age  of  seven  years,  the  age 
of  discretion,  on  condition  that  they  had  the  authority  of  their 
relatives  or  guardians.^  The  relatives  themselves  betrothed  their 
children  who  were  of  tender  age  or  absent,  one  may  guess  with 
what  motives.^  The  tie  formed  by  the  betrothals  was  not  a  very 
firm  one.  Its  rupture  took  place:  (a)  "mutuo  dissensu";  (b)  by 
the  changes  which  took  place  in  one  of  the  spouses  (disgrace, 
heresy,  leprosy,  becoming  notoriously  rich  or  poor),  a  serious  in- 
sult (boasting  of  the  engaged  man,  absence),  an  impediment  to 
the  marriage  taking  place  after  consummation  of  the  betrothals 
(intercourse  between  an  engaged  person  and  a  relative  of  the 
other)  vows  or  entering  into  holy  orders,  expiration  of  a  certain 
agreed  time,  marriage  of  one  of  the  parties,  refusal  of  a  child  who 
has  arrived  at  the  age  of  puberty  to  ratify  the  promise  made  in 
his  name  by  his  relatives.^ 

§  105.  The  Same.  —  Valid  betrothals  carried  with  them  an 
impediment  to  the  marriage  of  each  of  the  engaged  parties  with 
the  near  relatives  of  the  other.  The  obligation  to  marry,  which 
became  incumbent  upon  the  engaged  parties  as  a  result  of  this,  was 
enforced  by  means  of  ecclesiastical  censure.  An  action  could  be 
brought  before  the  ecclesiastical  judge  against  the  recalcitrant 
betrothed,  and  he  was  adjudged  to  be  "in  sponsum"  or  "spon- 
sam."  ^  These  severe  measures  tallied  very  well  with  the  old 
laws,  according  to  which  the  betrothals  were  scarcely  to  be  dis- 
tinguished from  the  marriage  itself.  They  were  rejected  at  the 
beginning  of  the  seventeenth  century  by  the  jurisprudence  of  the 

1  Mazure,  "Fors  de  B(5arn,"  p.  177;  Gratian,  C,  31,  q.  2  and  3.  Varia- 
tions of  the  canon  law,  wliich  finally  no  longer  demands  this  authorization: 
Esmein,  I,  159. 

2  Esmein,  I,  161.  Gratian,  C,  21,  q.  2,  c.  2;  C,  30,  q.  2,  c.  1;  "in  VI,"  4,  2, 1. 
These  betrothals,  excepting  in  very  early  times,  were  only  binding  upon 
children  if  they  were  expressly  or  tacitly  ratified  after  they  had  attained  the 
age  of  puberty:  Beautemps-Beaupre,  "Cout.  do  I'Anjou,"  II,  263.  But, 
although  the  law  was  such,  as  a  matter  of  fact  betrothals  formed  in  this  way 
were  often  forced  upon  the  children,  whose  consent  had  been  anticipated.  It 
was  all  too  often  the  same  with  marriage  as  it  was  with  regard  to  entering  into 
religious  orders.  Customs,  which  were  .stronger  than  the  laws,  allowed  only 
a  very  limited  freedom  to  the  spouses.  Cf.  Goncourt,  "La  Femme  au 
VHP  s.,"  p.  22  (account  of  the  marriage  of  Mme.  d'Houdetot) ;  Iscim- 
bert,  VII,  59  (1403);  B.de  Xivrey,  "Lettres  de  Henri  IV,"  4,  659;  Welschinger, 
"Divorce  de  Napoldon,"  p.  159.  Infra,  "Puberty";  "Arch.  f.  Kirch.,"  1895, 
369. 

^  Enumeration  in  the  verses  attributed  to  Eustache  du  Bellay. 

^  Dig.  X,  4,  1,  10,  17:  censures,  excommunication,  imprisonment. 

99 


§  105]  THE    FA^^IILY  [Chap.  I 

Parliaments;^  the  ecclesiastical  judge  had  only  power  to  declare 
that  the  betrothals  were  dissolved  and  to  inflict  a  light  penance 
upon  the  guilty  betrothed.  But  the  other  betrothed  had  the 
right  of  addressing  the  secular  judge  in  order  to  obtain  dam- 
ages."^ The  penal  clause,  which  might  have  been  abused  in 
order  to  force  people  into  marriage,  was  always  forbidden.^  This 
was  not  so  in  the  case  of  the  earnest-money,  which  was  often  given 
by  one  betrothed  to  the  other;  this  was  too  small  a  sum  ordina- 
rily to  have  any  restraining  effect  upon  marriage;  it  was  tolerated 
by  making  the  betrothed  who  was  in  the  wrong  lose  it.  —  The 
usage  of  betrothals  has  lost  all  importance  since  the  Revolution; 
the  Civil  Code  does  not  even  make  any  mention  of  them. 

1  Loysel,  103;  "Arrets  Dep.,"  1606;  Le  Ridant,  "Code  Matr.";  P.  de 
Combes,  "Proced.  en  I'ofEc.  de  Paris";  Fevret,  "Abus,"  5,  1,  20;  Pothier,  51. 

2  In  this  there  was  seen,  not  an  obhgation  "ex  deUcto,"  but  an  obhgation 
to  carry  out,  which  resolved  itself  into  damages:  this  was  sometimes  an  in- 
direct means  of  compulsion,  and  one  which  was  almost  as  efficacious  as  the 
punishments  of  the  Church.  Cf.  in  English  law,  "Breach  of  Promise."  On 
the  estimation  of  damages,  see  the  authors  cited  in  the  preceding  note.  "  Law 
Quart.  Rev.,"  1894,  X,  135. 

3  "Cod.  Just.,""DeSpons.,"3;  Dig.  X,  4,  1,  29;  "Et.  deSt.  Louis,"  I,  124. 
In  Burgundy  the  penal  clause  is  admitted  (1350) :  Beaum.,  34,  62;  P.  de  Font., 
15,  32;  Launay,  "Inst.,"  2,  4;  Hostiensis,  p.  341. 


100 


Topic  3] 


CELEBRATION    OF   MARRL\GE 


[§10G 


Topic  3.     Celebration  of  Marriage 


.106.  Canon   Law   Previous   to   the 

Council  of  Trent 
107.  Council  of  Trent. 


§  lOS.  Civil  Legislation. 

§  109.  Marriage  of  Protestants. 

§  110.  Revolutionary  Law. 


§  106.  Canon  Law  Previous  to  the  Council  of  Trent.  —  While 
considering  marriage  as  a  sacrament,  the  Church  had  not  im- 
posed upon  the  faithful  any  particular  form  for  its  celebration.^ 
It  referred  for  its  carrying  out  to  the  civil  law,  and  especially  to 
the  Roman  laws.^  It  is  thus  that  it  had  interpreted  the  Roman 
maxim,  "Nuptias  non  concubitus  sed  consensus  facit,"  in  this 
sense,  that  marriage  was  formed  simply  by  the  exchanging  of 
consent  between  the  spouses.^  The  act  thus  found  itself  simpli- 
fied and,  if  one  may  say  so,  reduced  to  its  most  simple  expression. 
This  doctrine  did  not  prevail  without  some  difficulty;  not  only  did 
it  run  contrary  to  the  Germanic  system  of  the  betrothals,  but  it 
struck  at  a  maxim  which  perhaps  issued  from  the  Germanic  cus- 
toms concerning  the  "traditio  puellse,"  perhaps  from  the  popular 
conception  of  marriage,  the  maxim :  "  Matrimonium  desponsatione 
initiatur,  commixtione  perficitur."  ^  Marriage  is  only  perfected 
by  its  consummation,^  so  much  so  that  in  later  law  ^  a  marriage 

1  Marriage  with  the  intervention  of  the  "Perorator"  (Italy,  late  Middle 
Ages),  who  established  the  consent  of  the  parties  and  the  drawing  up  of  the 
deed,  and  declared  that  the  spouses  were  united.  How  are  we  to  account  for 
the  part  played  by  this  personage?  Civil  marriage?  Friedberg,  "Eheschl.," 
5;  Sohm,  "Trauung,"2;  Thaner,  "Z.  f.  Kirch.,"  1881,  p.  209;  Brandileone, 
op.  cit.;  Ruffini,  "Per  la  Storia  d.  Dir.  Matr.,"  p.  26.  See:  Marriage  estab- 
lished by  notarial  deed;  Friedberg,  "D.  zei.  f.  Kirch.,"  IV,  354;  Friedberg, 
"Handb.  d.  Kirch.,"  §  153;  Patetta,  "Studi  Senesi,"  1896,  p.  3. 

2  Saint  P.  Daniien,  Yves  de  Chartres,  often  cite  the  Roman  texts :  P.  Four- 
nier,  "Yves  de  Chartres"  ("  R.  G.  H.,"  1898,  p.  89);  "Z.  f.  Kirch.,"  1889,  269. 

'  Joseph  and  the  Virgin.  In  this  sense  the  Fathers  of  the  Church, —  Igna- 
tius, Chrysostom,  Ambrose,  Augustine,  —  cited  in  Gratian,  C.  27,  q.  1,  c.  1 
et  seq. 

*  Cf.  "Genesis,"  ii,  24;  coarse  usages:  Agde,  39. 

6  Freisen,  p.  92,  206  (contra,  2d  cd.);  Heusler,  "Inst.,"  II,  282;  Ficker, 
"Mittheil.  Inst.  f.  Oesterr.  Gesch.,"  188,  2,  70;  Hormann,  op.  dt.',  Sehling, 
p.  174;  Scherer,  "Arch.  f.  Kath.  Kirch.,"  1891,  p.  353;  Fournier,  "Yves," 
p.  91.  —  As  we  see,  there  are  as  to  the  formation  of  marriage  at  least  three 
distinct  tendencies;  from  this  there  arise  in  science  three  contrasting  theories: 
1st,  theory  of  the  betrothals;  2d,  theory  of  the  "copula;"  3d,  theory  of  the 
"consensus";  Freiseri,  "Arch.  f.  Kath.  Kirch.,"  67,  369. 

*  Acquirement  of  the  marriage  portion,  Benumanoir,  13,  25  ("Compaignie 
carnele");  Loysel,  140.  Cf.  "Bretagne,"  4.50  (putting  the  foot  into  bed; 
German  "Beilager");  Bourges,  "Mar.,"  1  (prohibition  of  gifts  between  spouses 

101 


LIBRARY 

UNIVERSiTY  (7  C  •liFORNiA 


§  106]  THE    F.\MILY  [Chap.  I 

can  only  be  entirely  dissolved  when  it  has  been  consummated. 
Then  only,  they  say,  does  it  represent  the  union  of  Christ  and  the 
Church.^  So  long  as  there  has  not  been  any  consummation  it  can 
be  broken  by  the  entry  into  religious  orders  of  one  of  the  spouses,^ 
and  the  pope  has  authority  to  dissolve  it.^  Anomalies  for  the 
jurists,  survivals  for  the  historian.^  The  later  canon  law,  as  it 
was  fixed  by  a  celebrated  edict  of  Nicholas  I  for  the  Bulgarians 
in  866,^  depended  exclusively  upon  the  consent  of  the  spouses.^ 
The  Germanic  Customs  lost  all  legal  importance,  although  in  many 
localities  in  Germany  the  consummation  of  marriage  was  sym- 
bolized during  the  Middle  Ages  by  the  ceremony  of  the  "Beilager" 
or  going  to  bed  of  the  spouses  in  the  presence  of  witnesses.^  The 
theory  of  consent  had  never  sufficient  strength  to  relegate  to 
the  background  the  nuptial  benediction  ^  by  the  priest,  although 
this  pious  custom  dated  back  to  the  time  of  the  apostles.^    It  was 

only  after  consummation);  "L.  Sax.,"  8  (birth  of  a  son);  Swedish  law: 
"Ascencio  thori,"  banquet;  Grimm,  435. 

1  If  the  marriage  has  not  been  consummated  the  wife  who  survives  is  not 
a  widow. 

2  Gratian,  c.  27,  q.  2.  For  example,  St.  Macaire  and  St.  Alexis.  Various 
explanations:  cf.  "Commentaries"  of  Bernard  de  Parme,  Hostiensis,  Panor- 
mitanus.  Entering  into  the  reUgious  profession  does  not  break  the  "matri- 
monium  ratum  et  consummatum." 

^  By  reason  of  the  fullness  of  his  legislative  power.  A  very  commodious 
expedient,  and  one  which  is  frequently  made  use  of  to  conceal  divorce. 

4  Cf.  Dig.  X,  4,  13,  2  ("affinitas  superveniens");  Dig.  X,  4,  8,  3  ("lepra 
superveniens");  4,  19,  1  and  7;  4,  20,  1;  4,  1,  19. 

^  "Secundum  leges,"  Labbe,  VIII,  518,  Art.  3  (usages  of  the  Roman 
Church);  Gratian,  "C,"  27,  q.  2,  1  and  2;  Councils  of  Chalons,  813;  Tribur, 
893;  cf.  Trosh,  909  ("dotatam  et  a  parentibus  traditam  per  benedictionem 
sacerdotum  accipiat";  no  annulment) ;  "Pseudo  Isid.,"  ed.  Hinschius,  p.  87; 
"Faux  Capit.,"  7,  463,  179;  Glasson,  "Et.  s.  le  Consent,  des  Epoux  au 
Manage." 

8  Examples  in  Chronicles,  Poems,  Gautier,  "Chevalerie,"  p.  354.  But 
cf.  contra  "Betrothals,"  "Consent  of  the  Relatives";  Jostice,  pp.  181,  188. 

^  Cf.  "Marriage  by  Abduction":  Weinhold,  "Deut.  Frauen,"  I,  399;  Ha- 
nauer;  "Sachsensp.  Landr.,"  I,  45,  1;  Stryk,  "Usus  Mod.  Pandect,"  23,  2, 
21.  If  the  husband  dies  before  the  official  retiring  together,  the  wife  does 
not  attain  the  pecuniary  advantages  which  result  for  her  from  the  marriage 
(dower,  rights  of  inlieritance).  —  The  very  widespread  custom  in  France 
of  taking  a  bowl  of  milk,  soup,  a  roast,  hot  wine,  etc.,  to  the  newly  married 
couple  when  they  were  in  the  marriage  bed,  undoubtedly  had  no  other  origin: 
" F.  de  B^arn,"  267;  Pineau,  "  Folk-Lore  du  Poitou,"  p.  488 ;  Sebillot,  "  Contes 
Popul.  de  la  Haute-Bretagne,"  p.  136.  This  last  exponent  of  the  folk-lore 
estabUshes  that  there  are  locahties  in  which  the  newly  married  couple  cohabit 
only  upon  the  second  day.  Cf.  as  to  this:  Fournel,  "Adultere,"  p.  52;  "Ord." 
1336,  1338;  "Arr."  1439  (prohibition  forbidding  the  Bishop  of  Amiens  to 
demand  anything  from  newly  married  people  for  having  slept  together  the 
first  three  nights  of  the  marriage). 

8  Salvioli,  "Arch.  Giur.,"  1894,  p.  173;  Brandileone,  "Ac.  Sc.  Nap.,"  27 
269;  "Riv.  p.  sc.  Giur.,"  18,  1.  Cf.  Ruffini,  op.  cit.;  Patetta,  "Studi  Sen.," 
1896,  3. 

^  The  idea  of  drawing  down  celestial  favors  upon  the  act  which  is  being 

102 


Topic  3]  CELEBRATION   OF   MARRIAGE  [§106 

not  classified  among  the  essential  conditions  of  marriage.^  The 
Church  limited  itself  to  recommending  it,  and  to  the  infliction 
of  penances  upon  those  who  did  not  subject  themselves  to  it.^ 
Thenceforth  there  were,  in  fact,  two  sorts  of  marriages:  the  one 
official  to  a  certain  extent,  solemn,  public,^  "in  facie  Ecclesise,"  ^ 
the  other  a  private  act,  secret,  a  marriage  by  simple  consent,"  or 
what  was  the  same  tiling,  the  "sponsalia  per  verba  de  praesenti." 

carried  out:  Duchesne,  "Orig.  du  Culte  Chret.,"  c.  14;  Terlullian,  "Ad 
Uxor.,"  2,  9.  Rescript  of  Nicholas  I  to  the  Bulgarians,  866:  "sponsalia," 
"subarratio,"  "hbellus  dotis,"  mass  and  benediction  of  the  spouses  while 
the  veil  ("palhum,"  "paile")  is  extended  over  them,  crowning  them  as 
they  come  out  of  church.  This  is  the  first  text  which  describes  in  detail  the 
Christian  rites  appertaining  to  marriage,  and  it  is  remarkable  to  see  that  they 
so  closely  resemble  the  pagan  rites. 

1  Gratian,  "C,"  35,  q.  6,  c.  2;  Tertullian,  "De  Pudic,"  4.  Even  in  the 
thirteenth  century,  second  marriages  are  not  blessed.  Council  of  Lateran, 
1215,  c.  51;  Paris,  1429;  Narbonne,  1551,  etc.  BoutilUer  sees  in  them  only 
an  "honorable  thing,"  II,  8;  Viollet,  p.  425. 

2  Cf.  "Appointment  of  Marriage  Portion."  Council  of  Aries,  524;  Gratian, 
C,  30,  q.  5,  c.  6;  "Faux  Capit.,"  7,  463.  Germanic  Marriage  Portion. 
At  Rome  the  "  instrumentum  dotale"  served  to  distinguish  marriage  from 
concubinage  and  as  a  proof  of  the  "  nuptiae  " :  "  Cod.  Just.,"  5,  4,  22  s.  Li\nng 
together,  also,  was  a  presumption  of  marriage  between  persons  of  equal 
station  in  life,  and  later  on  between  persons  who  were  free:  "Nov."  74,  4, 
and  117,  4;  "Wis.,"  3,  1,  9.  —  Marculfe,  2,  15;  "App.,"  37;  "Sirm.,"  14,  etc; 
"L.  Rib.,"  37.     See  iy^fra  "Concubinage." 

'  The  Capitularies  prescribed  it  ("Cap.,"  755,  c.  15)  so  as  to  prevent 
incestuous  and  irregular  marriages  ("Cap.,"  802,  c.  35;  804,  etc.;  "F.  Capit.," 
6,  408;  7,  169,  463),  but  not  under  penalty  of  nullity  (cf.  however  Pothier,  IV, 
3,  2);  the  penalties  which  were  decreed  fell  into  disuse.  Leo,  the  philosopher, 
in  815,  "Nov.,"  89,  pronounced  their  nullity.  Cf.  as  to  Sicily,  "Ass.  Nor- 
mande"  of  1140;  "Const.  Sic,"  3,  20. 

*  A  thing  which  very  clearly  shows  the  auxiliary  character  of  the  inter- 
vention of  the  priest  is  that  the  nuptial  benediction  was  not  given  in  the  in- 
terior of  the  church  before  the  altar,  but  "ad  valvas,  ad  fores  ecclesiae,"  at 
the  door  of  the  church.  At  least,  such  was  the  general  custom  during  rather 
a  long  period.  The  priest  asked  the  spouses  if  they  consented  to  take  each 
other  as  husband  and  wdfe,  and,  upon  their  replying  in  the  affirmative,  gave 
them  his  blessing:  Dareste,  "Etudes,"  p.  288  (Scandinavian  law). 

6  Erasmus,  "De  Matr.,"  67:  the  marriage  may  be  concluded  "nutu," 
"litteris,"  "signo"  (giving  of  a  half  of  a  piece  of  money),  "facto,"  "silentio" 
(the  relatives  come  to  an  agreement  before  the  future  spouses,  who  remain 
silent).  Marriage  through  an  agent  was  thenceforth  looked  upon  as  being 
lawful.  Cf.  Michelet,  "Orig.  du  Dr.  Fr.,"  pp.  27,  32;  Hanaver,  "Mem.  Acad. 
Stanislas,"  1893,  260:  the  agent  lies  down  with  the  engaged  woman  com- 
pletely armed,  with  his  right  arm  and  his  right  foot  bare,  and  a  naked  sword 
between  them  (official  "Beilager").  Marriage  by  an  agent  of  Frederick  III 
and  Eleanor  of  Portugal,  and  of  Max-imilian  and  Ann  of  Brittany.  Other 
examples  in  1477,  1501  and  1737  (at  Luneville):  "Close  du  Decret  X,"  3,  34, 
14  (cf.  23,  2,  5);  "in  VI,  de  procur.  in  f.  Acta  S.  Sedis,"  16,  10;  Labou- 
laye,  "Cond.  d.  f.,"  p.  133;  Lagrbze,  "Navarre,"  II,  183  (in  1336,  1384). 
After  the  Council  of  Trent  the  celebration  of  a  marriage  through  an  agent 
has  no  meaning,  for  it  does  not  do  away  with  the  necessity  of  another  cele- 
bration taking  place  between  the  parties  themselves:  Welschinger,  "Le  Div. 
de  Napoleon,"  p.  158.  At  the  same  time,  the  doctors  disagreed  upon  this 
subject:  Pothier,  no.  367;  Dur.  de  Maillane,  "Diet,  de  Dr.  Canon,"  see 
"Procuration." 

103 


§  106]  THE   FAJVIILY  [Chap.  I 

It  is  scarcely  necessary  to  point  out  the  serious  inconveniences 
which  resulted  from  the  concealment  of  marriage :  ^  bigamy 
was  frequent,  the  condition  of  the  parties  uncertain;  one  could 
always  contest  it,  as  the  status  had  not  been  proven.^     In  the 

1  This  was  remedied  to  a  certain  extent  by  Banns  or  Publication  of 
Marriage:  Viollet,  p.  372;  Richter,  §§  267,  281;  Pothier,  no.  64;  Durand  de 
MailL,  see  "Diet.,"  Merlin,  Ferribre,  "R.  h.  Dr.,"  13,  563.  Precedents: 
Tertullian,  "De  Pudic,"  4;  Ignat.,  "DeMonog.,"  11;  "AdUx.,"2,  "InFine"; 
"Ep.  ad  Polyc."  The  forbidding  of  incestuous  or  irregular  marriages  must 
have  contributed  towards  the  maintenance  of  the  custom  of  having  the  pro- 
posed marriages  of  the  faithful  known  beforehand.  Penalty  of  a  royal  bann 
pronounced  by  the  Capitularies:  802,  35;   "F.  Capit.,"  2,   130;  327,  408; 

3,  179,  389,  463;  Gratian,  C,  30,  q.  5,  c.  1.  From  this  arose  publications. 
In  the  twelfth  century  it  became  a  custom  of  the  Gallican  Church:  Dig.  X,  4, 
1,  27.  "Banna"  or  " denunciationes "  published  by  the  priest.  Viollet,  p.  430: 
at  the  beginning  of  the  twelfth  century  at  Theronanne,  where  they  were 
published  in  1150;  Eudes  de  Sully  organized  them  in  Paris  in  1198.  The 
Council  of  Lateran,  1215,  made  them  general:  Dig.  X,  4,  3,  3.  Sanction:  a 
sin  for  the  spouses  or  the  priest  and  no  reputed  marriage.  The  Council  of 
Trent,  s.  24,  c.  1,  renews  these  prescriptions  with  the  object  of  avoiding  hidden 
and  incestuous  marriages  (3  publications  during  3  successive  hohdays). 
Dispensation  if  there  is  any  risk  of  the  marriage  being  maliciously  prevented : 
"Ord.  Blois,"  1579,  40.  Analogous  provisions:  publication  at  the  time  of  the 
sermon  in  the  parish  church  of  each  one  of  the  parties  and  their  fathers  and 
mothers.  The  interval  between  the  holidays  varies  in  the  different  dioceses 
(Orleans:  1  day).  The  Ordinance  of  Blois  only  allowed  the  bishop  to  dis- 
pense with  two  publications,  and  then  only  for  an  urgent  and  lawful  need 
(opposition  offered  through  malice,  pregnancy  of  the  engaged  woman);  but 
they  often  went  so  far  as  to  dispense  with  the  three  pubhcations,  and  that 
without  cause.  As  to  the  remunerations  demanded  by  the  clergy,  cf. 
Fevret,  "Abus,"  5,  2,  32.  —  The  principal  effect  of  banns  was  to  facilitate  ob- 
jections. Before  they  were  published  the  parish  priest  had  to  make  sure 
of  the  consent  of  the  parties,  and,  if  need  be.  have  brought  to  him  the  consent 
of  the  fathers  and  mothers  or  guardians  and  custodians.  An  Order  of  June  15, 
1691,  provided  for  the  keeping  of  a  register  to  contain  these  objections  and 
renunciations.  Cf.  Civil  Code,  67.  —  Lack  of  publication:  the  priest  is 
subjected  to  canonic  penalties  and  a  fine;  the  marriage  is  not  void  ac- 
cording to  the  canon  law  (dispensations);  French  jurisprudence  itself  at  first 
held  that  they  were  void,  but  made  this  apply  only  after  the  seventeenth 
century  to  the  marriages  of  minors  that  were  concluded  without  the  consent 
of  their  relatives:  De  Verdelin,  "Analyse  des  .  .  .  Memoires  du  Clerge," 
1821,  I,  419;  Louet,  M,  6;  Denisart,  see  "Ban." 

*  The  canon  law  had  made  the  proof  of  marriage  easy;  just  as  it  had  its 
formation:  witnesses,  authenticated  or  private  writings,  possession  of  status, 
registers.  French  legislation  showed  itself  to  be  more  severe.  —  Witnesses: 
two  are  sufficient  for  the  proof  to  be  absolute  (even  relatives).  It  was  sufficient 
if  they  had  seen  the  giving  of  the  ring  and  had  taken  part  in  the  customary 
celebration.  The  Ordinance  of  Blois,  in  providing  for  the  keeping  of  reg- 
isters, wished  to  set  aside  the  proof  by  means  of  witnesses ;  and  the  Ordi- 
nances of  1629,  40,  and  1639  logically  came  to  the  conclusion  that,  as  a  general 
thing,  marriage  could  not  be  proved  excepting  by  means  of  the  registers 
(this  being  contrary  to  the  canon  law:  Pnnorm.  on  Dig.  X,  2,  18,  13).  A 
private  '^\Titing  was  also  found  to  be  set  aside,  as  a  general  rule.  The  notarial 
deed,  which  was  formerly  in  use  (cf.  Italy  upon  this  point)  (Order  of  Feb. 

4,  1576),  was  forbidden  by  the  Ordinance  of  Blois,  1579,  44.  The  contract  of 
marriage  did  not  prove  the  marriage:  Dig.  X,  2,  33,  11.  Difficulties  as 
to  possession  of  status,  its  elements  ("nomen,"  "tractatus,"  "fama")  and 
their  respective  forms:  "Decis.  Capell.  Tolos.,"  q.  173.  —  The  declaration 
ia  not  here  a  proof  (c/.,  however,  as  to  "copula"  following  "sponsalia  de 

104 


Topic  3]  CELEBRATION    OF   MARRIAGE  [§  107 

same  way,  nothing  was  easier  than  to  break  the  conjugal  tie. 
Very  often  this  depended  upon  the  spouses  themselves,  or  upon 
one  of  them.  The  evils  of  this  practice  to-day  close  our  eyes 
to  its  beneficial  side,  and  to  that  which  caused  it  to  remain  in  ex- 
istence four  centuries.  It  alone  could  assure  the  full  independence 
of  the  individual  (especially  of  the  woman)  in  the  most  serious 
act  of  life,  and  at  a  moment  when  everything  seemed  to  conspire 
to  take  it  away:  the  sovereign  disposing  of  the  hand  of  his 
daughters  to  his  subjects,  the  lord  imposing  on  his  vassal  until 
the  age  of  sixty  the  service  of  marriage  and  forcibly  marrying 
his  serfs,  and  finally  and  especially  the  family,  which,  having 
little  regard  for  individual  likes  and  suitableness,  only  too  often 
made  of  the  conjugal  union  a  bargain  in  its  own  interests.  The 
only  means  of  removing  the  individual  from  these  influences  has 
been  the  recognizing  of  marriage  contracted  without  formalities 
and  without  publicity.  It  is  this  wliich  accounts  for  the  fact  that 
in  coimtries  of  exaggerated  individualism,  as  among  the  Anglo- 
Saxons,  it  has  been  possible  to  uphold  marriages  "solo  consensu" 
for  so  long  a  time.  The  marriages  in  Scotland  near  the  English 
frontier,  before  the  blacksmith  of  Gretna  Green,  only  ceased  in 
1848.^  In  our  day,  and  from  the  time  when  freedom  of  marriages 
was  assured,  solemnities  and  publicity  have  merely  afforded  addi- 
tional advantages. 

§  107.  Council  of  Trent.^  —  (Session  24,  1563.)  ^  The  abuses 
resulting  from  secret  marriages  were  such,  however,  that  the 
Church  at  last  decided,  not  without  some  hesitation,^  to  break 
with  its  secular  discipline.^    The  Council  declared  that  the  spouses 

future")-  —  Clandestine  marriages  proved  by  witnesses,  etc.,  could  not  pre- 
vail against  a  later  marriage  which  was  public.  —  As  to  exceptional  proof  by 
means  of  witnesses,  etc.,  cf.  Polhier,  ed.  Bug.,  vol.  X,  p.  79,  C.  civ.,  46.  Post, 
"Certificates  of  Civil  Status." 

1  The  English  evaded  their  law,  which  demanded  the  presence  of  a  priest 
(17.53)  by  being  married  at  Gretna  Green:  the  blacksmith  served  as  a  witness 
and  the  register  which  he  kept  facilitated  proof  of  the  deed.  Viollct,  p.  428, 
n.  1 :  the  parish  priest  of  Lay-Saint-Remy  in  Lorraine  is  the  counterpart  of 
the  blacksmith  of  Gretna  Green. 

2  "Hist,  du  Concile,"  by  Sarpi  and  Pallavicini;  SchuUe,  64;  Friedberg,  107; 
Sohm,  187;  Salis,  "Pubhc.  d.  Trident.  R.,"  1888;  Druffel,  "Mon.  Trid.,  "1884. 

'  Pius  IV  reserved  to  himself  alone  the  right  to  interpret  decrees,  and  very 
soon  this  right  passed  to  the  Congregation  of  Cardinals  of  the  Council  wliich 
was  created  in  1564.  The  jurisprudence  of  this  body  was  an  authority  upon 
the  subject  of  marriage.  Choice  of  its  resolutions  in  SchuUe  and  Richter,  1853 
(ed.  of  the  Council),  "Jur.  Literat.,"  1896,  7,  16. 

*  Controversy,  according  to  Paolo  Harpi,  between  the  Dean  of  the  Sor- 
bonne,  Maillard,  who  was  hostile  to  the  reform,  and  the  Jesuit,  Salmcron. 
Opposition  of  56  prelates  when  the  vote  was  cast. 

5  It  was  said  formerly:  "to  drink,  to  eat,  and  to  sleep  together,  —  this 

105 


§  107]  THE    FAMILY  [Chap.  I 

were  incapable  ^  of  marrying  one  another  excepting  in  the  pres- 
ence of  the  priest  of  their  parish  ^  ("proprius  sacerdos")  ^  and  of 
two  or  three  witnesses;  every  marriage  celebrated  in  another  way 
was  branded  as  a  nulhty.  Thus  marriage  became  a  solemn  and 
public  contract;  ^  nevertheless,  it  was  always  the  contracting 
parties,  and  not  the  priests,  who  were  looked  upon  as  the  min- 
isters of  the  sacrament.  After  having  asked  the  parties  if  they 
consent  to  take  one  another  as  husband  and  wife,  it  is  true  that 
the  priest  should  say:  "Ego  vos  in  matrimonium  conjungo";  but 
this  is  not  a  compulsory  form ;  '^  it  is  only  the  presence  of  the  priest 
which  is  required  under  penalty  of  nullity.  Such  is  the  doctrine 
of  the  canonists,  and  as  a  consequence  the  priest  finds  himself 
playing  no  other  part  in  the  marriage  than  that  of  a  witness  quali- 
fied as  "  spectabilis."  In  reality,  from  the  moment  when  his 
presence  becomes  indispensable,  when  no  one  can  take  his  place, 
he  is  rather  a  party  to  the  act  than  a  spectator;  it  is  said:  "  the 
spouses  marry  one  another  before  the  priest " ;  the  expression  con- 
is  marriage,  it  seems  to  me."  After  Trent  it  was  necessary  to  add,  "  but  the 
Church  must  have  sanctioned  it." 

1  They  did  not  dare  directly  to  annul  a  marriage  wliich  was  not  con- 
tracted in  the  presence  of  the  priest,  because  it  was  a  tradition  that  his  pres- 
ence was  only  required  "ad  honestatem."  This  object  was  attained  by  the 
creation  of  a  new  disabihty.  Previous  forms  of  nullity,  such  as  violence  and 
lack  of  consent,  could  still  less  affect  clandestine  marriages,  because  their 
validation  took  effect  retroactively.  It  was  proposed  that  they  should  annul 
the  civil  contract,  the  legal  part  of  the  sacrament;  but  the  general  opinion 
was  that  the  contract  could  not  be  distinguished  from  the  sacrament  itself. 

2  Domicile  of  habitation  (and  not  of  origin)  or  residence  of  one  year:  Dig. 
X,  5,  38,  12. 

^  Or  of  another  priest,  but  with  the  permission  of  the  parish  priest  or  the 
ordinary:  George,  "De  Parocho  Putativo,"  1859. 

^  Marriage  by  means  of  an  agent  between  persons  who  were  absent  (special 
order,  verbal  or  written)  continued  to  be  permitted  (Henry  IV  and  Marie 
de  Medici,  Isambert,  XV,  245).  Sanchez,  2,  12,  2,  admits  the  existence  of 
marriage  by  letter  (ordinarily  before  the  parish  priest  by  the  person  who  has 
received  it).  Conditional  marriage,  even,  was  not  forbidden,  in  spite  of  its 
disadvantages:  Dig.  X,  4,  5.  It  was  lawful  on  condition  that  one  spouse 
should  give  money  to  the  other,  or  that  third  parties  should  give  their  con- 
sent to  the  marriage;  it  was  unlawful  if  the  conditions  were  not  written, 
unless  they  were  contrary  to  the  very  essence  of  the  marriage,  in  which  case 
they  themselves  annulled  it.  But  presumed  marriages  ("copula"  following 
"sponsalia  per  verba  de  futuro")  disappeared  (lack  of  celebration,  difficulty 
of  proof).  The  secret  marriage  was  not  vaHd  as  a  promise  of  marriage, 
although  no  particular  form  was  xequired  for  the  latter.  As  to  conditional 
marriage,  see  lanke,  "De  Cond.  Matrim.  Oppositis,"  1851;  Manenti,  "D. 
in  Apponibilita  d.  Condizioni  ai  Negozi  Giurid.,"  1889;  Riedler,  "Bedingte 
Eheschl.,"  1892;  Hussareck,  see Heinlein,  "Die  Bed.  Eheschl.,"  1892;  Ruffini, 
"Per  la  Storia  d.  Dir.  Matrim.,"  p.  10;  Dig.  X,  4,  5  and  5-7;  "in  VI,"  4,  1,  1; 
Gratian,  C,  32,  "in  Pr.";  C,  27,  q.  2,  "palea,"  8.  In  the  end  there  was 
seen  in  them  nothing  but  "sponsalia  de  futuro." 

^  Cf.  old  rituals,  where  we  find  for  example:  "Matrimonium  per  vos 
contractum,  ego  tamquam  minister  Dei,  confirmo,  ratifico  et  benedico." 

106 


Topic  S]  CELEBRATION   OF   MARRIAGE  [§109 

forms  especially  to  the  old  law.  It  is  also  said:  "the  priest  marries 
them,"  and  speech  thus  marks  the  change  which  has  taken  place 
in  the  part  played  by  the  priest.^ 

§  108.  Civil  Legislation.  —  If  the  decrees  of  the  Council  of 
Trent  ^  were  not  received  in  France  because  they  affected  the 
rights  of  the  secular  power,  royalty  was  forced  to  appropriate  them 
to  itself  and  to  decree  them  in  the  form  of  laws  of  the  State.^ 
This  was  the  object  of  Arts.  40  and  44  of  the  Ordinance  of  Blois, 
1579,  and  of  some  later  proclamations  which  rounded  them  out, 
particularly  the  Declaration  of  November  26,  1639,^  of  the  same 
obligation  of  celebrating  the  marriage,  under  penalty  of  nullity, 
before  the  priest  of  the  parish  of  the  two  spouses  or  of  one  of  them,^ 
in  the  presence  of  witnesses  (four  instead  of  five).  The  Declara- 
tion of  1639  even  gives  the  parish  priest  the  active  part.  It  is  not 
enough,  in  order  that  the  marriage  should  exist,  that  the  parties 
should  present  themselves  before  him  at  the  church  and  declare 
that  they  take  one  another  for  husband  and  wife;  the  priest  must 
declare  them  united.^  He  is  not  only  a  "spectabilis,"  witness,  he 
is  the  civil  and  religious  officer  of  the  State. 

§  109.   Marriage   of   Protestants.^  —  The   part   played   by   the 

^  The  theologians  disagreed,  as  they  always  did,  without  perceiving  that 
their  contrary  theories  were  correct,  —  one  with  respect  to  the  past,  and  the 
other  with  respect  to  the  future:  Durand  de  Maillane,  "Diet.,"  see  "Mariage." 

2  Distinguish  canons  relative  to  dogma  from  decrees  relative  to  discipline. 
Boyer,  "Diss.  s.  la  Recept.  du  Cone,  de  T."  in  "Examen  du  P.  L^gisl.  de 
I'Egl.  s.  le  Mar.,"  1817;  Le  Ridant,  "Deux  Quest,  s.  le  Mar.,"  p.  344;  Bibl. 
on  the  Council  in  "Jurist.  Literaturbericht,"  1896,  VII,  16. 

'  Cf.  forbidding  of  secret  marriages  in  Lombardy,  1783;  Tuscany,  1786; 
Naples,  1718,  1767. — Lagreze,  "Navarre,"  2,  169  (co-existence  of  religious 
marriage  and  marriage  according  to  the  forum  in  the  giving  of  earnest-money 
and  surety). 

*  D'Aguesseau,  "CEuvres,"  1762,  V,  161;  III,  215;  Merlin,  "R^jp.,"  see 
"Mariage." 

6  "Ord.  Blois,"  1579,  40,  44;  1629,  39;  Nov.  26,  1639;  Edict  of  March  and 
Decree  of  June,  1697;  Decree  of  May  14,  1724;  Nov.  22,  1730;  Decree  of 
Apr.  9,  1736. 

^  This  was,  however,  contested.  On  the  day  following  the  Declaration  of 
1639,  marriages  were  celebrated  at  La  Gaulmine,  —  that  is  to  say,  before  a 
notary;  and  the  deed  was  made  known  to  the  parish  priest.  The  parliament 
forbade  notaries  to  establish  these  marriages,  Sept.  5,  1560,  and  annulled  them 
August  12,  1692.  The  Edict  of  1697  pronounced  the  most  severe  penalties 
against  irregular  marriages  {cf.  "D6cl.  poster";  Isambert,  XX,  292).  As  to 
Gaulmin,  dean  of  the  masters  of  applications,  cf.  Desforges,  "Thfise,"  pp.  149- 
151.  Marriages  before  notaries  were  formerly  quite  frequent;  prohibited  by 
the  Ordinance  of  Blois,  they  were  still  preserved  in  plays,  because  it  was  not 
allowed  to  portray  ecclesiastics  on  the  stage:  Glasson,  7,  155;  "Mdm,  du 
Clergo,"  V,  780. 

'  A.  Martin,  "Anc.  L(5g.  G6nevoise  s.  le  Mar.,"  1891.  Let  us  remember 
that  for  Protestants  marriage  is  not  a  sacrament;  it  is  the  spouses  who  be- 
come united  themselves,  and  it  is  not  the  priest  who  joins  them  together; 
Sohm,  197;  "Trau."  110  {cf.  Art.  in  1879), 

107 


§  109]  THE   FAJVIILY  [Chap.  I 

priest  in  marriage  was  double,  civil  and  religious  at  the  same 
time.  The  reformers  could  not  have  recourse  to  him  without  re- 
nouncing their  faith.  Until  the  time  of  the  revocation  of  the 
Edict  of  Nantes  they  were  married  before  their  ministers,  invested 
in  the  eyes  of  the  State  with  the  same  powers  that  the  priests  had 
with  respect  to  the  Catholics.^  The  Edict  of  Revocation  (October 
22,  1685)  punished  the  ministers;  this  was  the  same  thing  as  in- 
directly compelling  the  Protestants  to  be  married  before  Catholic 
priests.^  The  courts  gave  to  the  Edict  its  whole  power  upon 
this  point,^  following  the  Declaration  of  December  13,  1698, 
starting  with  the  fiction  that  there  were  no  longer  any  Protestants 
in  the  kingdom,  but  only  the  newly  converted.^  There  was  thence- 
forth no  way  of  marrying  open  to  them  other  than  to  abandon 
their  religion,  having  their  union  blessed  by  CathoHc  priests." 
Towards  the  end  of  the  eighteenth  century  jurisprudence  be- 
came milder  and  thus  found  itself  prepared  for  the  Edict  of  1787, 
long  since  demanded  by  liberal  minds.  And  by  the  terms  of  this 
Protestants  could  marry,  according  to  their  choice,  either  before  the 
first  officer  of  justice  of  the  locality  or  before  their  minister,  acting 
no  longer  as  a  minister  of  the  faith,  but  as  an  officer  of  the  civil  gov- 
ernment. From  the  time  of  the  Old  Regime,  the  diversity  of  religion 
had  had  as  its  result  the  secularizing  of  the  marriage  of  Protestants. 

1  Art.  40  of  the  Ordinance  of  Blois  did  not  apply  to  Protestants;  but  Art.  44 
was  absolute.  Edict  of  Jan.  17,  1561,  9;  August,  1570;  May,  1576;  Septem- 
ber, 1577.  The  Edict  of  Nantes,  April,  1598,  Art.  23,  compelled  them  to  re- 
spect the  impediments  estabUshed  by  the  Church  and  placed  matrimonial 
actions  in  which  they  were  parties  under  the  jurisdiction  of  the  civil  judges. 
Protestants  were  impliedly  authorized  to  marry  before  their  own  ministers: 
Synod  of  1559;  Brodeau,  on  Louet,  II,  122.  Their  ministers  kept  registers 
in  the  same  way  as  parish  priests  did;  and,  in  fad,  they  were  recognized  as 
having  the  same  authority  as  the  latter.  Various  statutes  organized  this 
keeping  of  registers,  and,  consequently,  admitted  of  the  celebration  of  mar- 
riages by  Protestant  ministers.  The  Order  of  the  Council,  of  Sept.  15,  1685, 
half  secularized  the  marriage  of  Protestants.  The  minister  took  part  in  the 
union  and  blessed  it  before  the  chief  official  of  justice  of  the  locaUty  after 
pubUcation  had  taken  place  at  the  nearest  court  of  the  king:  "Arr.  Cons.," 
Sept.  22,  1664;  Decl.,  April  2,  1665;  Feb.  1,  1669.  (Lorry)  "M.  des  Prot- 
estants," 1756. 

2  Marriages  in  the  desert  blessed  by  pastors  who  were  hidden  there.  Unions 
blessed  by  old  men,  by  the  heads  of  families.  Marriages  abroad  in  the  frontier 
provinces:  Pothier,  no.  363;  Decl.  June  16,  and  Aug.  6,  1685.  Abrogated  by 
Law  of  Sept.  20,  1792.  —  Evangelical  church:  Blumstengel,  "Trauung,"  1879. 

3  "Arr.  Pari.,"  Aug.  14,  1709.  Presidial  of  Nimes  in  1739.  Toleration  in 
fact  which  ceases  after  1743  (death  of  Fleury). 

^  Decl.  March  8,  1715;  Pothier,  no.  275;  Portalis,  "Consult,  s.  la  Valid, 
du  Mar.  des  Protestants,"  1770. 

^  Who  made  them  give  proofs  in  order  to  assure  themselves  of  the  sin- 
cerity of  their  belief.  From  thence  comes  the  custom  of  the  Certificate  of 
Confession,  which  is  to-day  required  of  Catholics  themselves. 

108 


Topic  3]  CELEBRATION   OF   MARRIAGE  [§    IIG 

§110.  Revolutionary  Law.^' — The  Revolution  in  proclaiming 
freedom  of  belief  was  led  to  a  complete  secularization  of  mar- 
riage. The  theories  of  the  jurists,  and  even  of  the  theologians, 
according  to  which  the  contract  was  the  material  side  of  the  sac- 
rament, contributed  thereto  at  least  as  much  as  the  teachings  of 
the  philosophers.  The  Constitution  of  1791,  2,  7,-  laid  down  the 
principle  that  the  law  only  considered  marriage  as  a  civil  con- 
tract ;  ^  the  Church  was  free  to  set  up  the  sacrament  in  establish- 
ing the  forms  and  conditions  which  might  please  it,  the  faithful 
were  at  liberty  to  respect  its  doctrines,^  but  the  State  had  no 
power  to  bind  itself  to  impose  them  upon  all  citizens  without 
affecting  their  liberty  of  conscience.^  The  Decree  of  September 
20,  1792,  organized  the  certificates  of  civil  status  and  marriage; 

^  Agier,  "Du  I\Iar.  dans  ses  Rapp.  avec  la  Religion  et  les  Lois  Nouvelles," 
year  IX;  Daniel,  "Le  Mar.  Chretien,"  1870;  Sagnac,  "Leg.  Civ.  d.  Revol.," 
1898;  Rosmini-Serhati,  "Sul.  Matr.  Christ,  e  le  Legge  Civ.,"  1862;  Fleiner, 
"Obligat.  Civileke,"  1890. 

^  In  conformity  with  the  report  of  Durand  de  Maillane  in  the  name  of  the 
Ecclesiastical  Committee.  It  had  been  caused  by  the  refusal  of  the  parish 
priest  of  Saint-Sulpice  to  publish  the  banns  of  Talma. 

3  Friedberg,  "Gesch.  d.Civilehe,"  1877;  Glasson,  "Le  Mar.  CivU,"  1880; 
Esmein,  I,  46.  Modern  civil  marriage  is  distinguished  by  the  presence  of  a 
public  officer  who  represents  the  State.  Cf.  Marriage  before  the  Venetian 
" Peroratores "  (Thaner,  "Z.  f.  Kirch.,"  1881,  p.  209)  or  before  a  notarj'- 
(Dig.  X,  4,  4,  ,3) :  Friedberg,  "  Handb.,"  §  155,  n.  1.  Civil  marriage  was  admitted 
for  the  first  time  in  Holland  in  1580  through  motives  of  tolerance;  in  1656 
it  was  admitted  in  the  entire  Netherlands;  in  1053  in  England  (but  the  Res- 
toration did  away  with  it).  Cf.  Friedberg,  Ruffini  translation,  §  155,  n.  6 
(bibl.);  Del  Giudice,  "Studi,"  1889,  209;  Gabba,  "Matr.  Civ.  e  Rel.,"  1876; 
Padelletti,  "Scrit.  d.  Dir.  Publ.,"  1881;  Brunialti,  "Stato  e  Chesa  i.  Italia," 
1892;  "Arch,  giur.,"  61,  142;  Sohm,  284. 

*  The  Catholic  Church  maintains  that  Christ  has  given  it  the  legislative 
and  judicial  power  with  respect  to  marriage  because  of  the  fact  that  he  raised 
this  act  to  the  rank  of  a  sacrament;  according  to  the  Catholic  Church,  in 
locahties  where  the  rulings  of  the  Council  of  Trent  are  applicable,  the  spouses 
who  are  only  civilly  married  live  in  a  state  of  concubinage.  The  Catholic 
doctrine  is  summed  up  in  five  propositions,  laid  down  in  1808  by  Pius  VII  for 
the  Bishop  of  Warsaw:  1st.  There  is  no  marriage  excepting  one  which  has  been 
contracted  according  to  the  forms  which  the  Church  has  established.  2d. 
Marriage  once  having  been  contracted  according  to  these  forms,  there  is  no 
power  on  earth  which  can  break  its  lie.  3d.  In  case  of  a  doubtful  marriage 
the  Church  alone  has  authority  to  judge  of  its  validity  or  invalidity.  4th.  A 
marriage  which  is  not  opposed  to  any  canonic  impediment  is  good,  valid,  and 
consequently  indissoluble,  whatever  impediment  may  be  oi:)poscd  to  it  by 
the  secular  power  without  the  consent  of  the  Church.  5th.  On  the  other  hand, 
every  marriage  contracted  in  spite  of  a  canonic  impediment  must  be  held  as 
null,  although  some  government  might  make  a  pretense  of  abrogating  such 
impediment.  CJ.  Encycl.  "  Arcanum  "  of  Leo  XIII;  Viollet,  "Gr.  Encycl.," 
see  "Mariage";  Sincholle,  "Mar.  Civil,"  1876. 

5  Viollet,  p.  429,  points  out  that,  while  waiting  for  the  new  method  of 
establishing  marriage  to  be  organized,  certain  Catholics,  who  did  not  wish 
to  have  their  union  blessed  by  the  Constitutional  clergy,  conceived  of  the 
idea  of  being  married  before  a  notary  (before  the  Law  of  1792) :  La  Rdveillcrc- 
Lepeaux,  "Refl.  s.  le  Culte,"  year  VI. 

109 


§  110]  THE    FAMILY  [Chap.  I 

the  latter  must  thenceforth  be  excuted  before  a  municipal  official 
in  order  to  be  recognized  by  the  State.^  Freed  from  its  religious 
character,  marriage  is  none  the  less  a  solemn  contract;  the  mere 
consent  of  the  parties  is  not  sufficient  to  form  it;  the  interest  of 
society  which  is  brought  into  play  in  this  contract  is  far  too  great 
for  it  to  be  lowered  to  the  level  of  private  and  secret  acts.^  By 
means  of  the  publicity  and  the  solemnities  with  which  it  is  sur- 
rounded the  liberty  of  the  parties  is  protected,  their  consent  is 
assured,  the  status  of  children  and  the  rights  of  relatives  are  estab- 
lished on  a  firm  basis,  to  everybody  an  easy  and  lasting  proof  of 
the  most  important  act  in  civil  life  is  supplied  beforehand.  But  if, 
as  far  as  the  forms  of  the  celebration  of  marriage  are  concerned. 
Revolutionary  law  only  introduced  an  innovation  in  transferring 
to  the  lay  officials  the  functions  of  the  clergy,  the  new  conception 
results:  1st,  in  permitting  the  marriage  of  priests;  2d,  in  intro- 
ducing divorce  into  civil  legislation;  3d,  in  a  modification  of  the 
theory  of  impediments.  Impediments  of  a  religious  order  dis- 
appear. The  consent  of  the  relatives  is  no  longer  necessary  after 
the  age  of  twenty-one  years.^ 

^  The  mayor  and  his  deputies,  according  to  the  Law  of  the  28th  Pluv., 
year  VIII.  C/.  Decree  of  Sept.  25,  1792,  and  Const,  of  the  5th  Fruct.,  year 
III.,  Art.  7.  Provisions  against  the  clergy  in  order  to  avoid  the  resumption 
of  their  functions,  D.  1792,  6,  2,  5;  7th  Vend.,  year  IV,  20  et  seq.,  Law  of  the 
18th  Germ.,  year  X,  or  Arts,  drawn  up  by  the  Concordat,  Art.  54  (reUgious 
marriage  after  the  civil  marriage).  In  1816,  prop.  Lacheze-Murel  {Mavidal, 
"Arch.  Pari.,"  16,  1),  cf.  Edict  of  1787. 

2  Facihties  granted  for  marriages.  D.,  1792,  4,  2,  3:  only  one  pubhcation 
a  week  before  the  celebration;  Law  of  25th  Vendem.,  year  II  (one  day  free); 
Law  of  the  7th  Therm.,  year  VII,  re-enacted  the  Decree  of  1792.  —  There 
were  no  longer  any  trifling  objections,  and  it  was  necessary  to  determine 
witWn  a  very  short  time  those  which  were  due  to  the  father  or  the  mother  or 
those  which  depended  on  some  cause  of  annulment.  —  Locality  of  the  celebra- 
tion (house  of  both  parties).  Law  of  the  30th  Germ.,  year  II.;  Law  of  the 
18th  Flor.,  year  X.  Celebration  of  the  "Decadi,"  Decree  of  the  13th  Fruct., 
year  VI;  26th  Prair.,  year  VII;  Law  of  the  15th  Flor.,  year  X.  "R.  Cath. 
Inst.,"  1880. 

3  In  Russia  marriage  is  still  a  religious  act.  —  In  Hungary  before  the  Law 
of  1894  there  existed  as  many  as  nine  different  matrimonial  systems,  and 
as  many  different  beUefs;  a  Catholic  spouse  only  had  to  change  his  religion 
in  order  to  acquire  the  right  of  obtaining  a  divorce.  In  order  to  escape  from 
this  state  of  anarchy,  the  intervention  of  the  State  and  the  creation  of  a  civil 
law  were  necessary,  the  latter  being  a  sort  of  neutral  ground  where  all  beliefs 
met.  "Gr.  Encycl."  See  "Mariage"  (Art. by  Le/ir.),  "Spain:  Double  legisla- 
tion, civil  and  reUgious." 


no 


Topic  4]  CONCERNING   IMPEDIMENTS   TO   MARRIAGE 


[§111 


Topic  4.    Concerning  Impediments  to  Marriage 


111.  The  Basic  Conditions. 

112.  Classification  of  Impediments. 

113.  Invalidating  Impediments. —  (I) 

Lack  or  Defects  of  Consent. 

114.  The  Same.  —  (II)  The  Consent 

of  the  Relatives  to  the  Mar- 
riage. 

11.5.  The  Same.  —  (III)  Incapacity. 

116.  The  Same. — (IV)  Impediments 
resulting  from  Relationship. 


§117. 


§118. 

§119. 
§120. 
§121. 
§122. 


The  Same.  —  (V)  Incompatibi- 
lity of  Marriage  with  Certain 
other  Conditions. 

The  Same.  —  Prohibitive  Im- 
pediments. 

Preventing  a  Marriage. 

Dispensations. 

Nullity  of  Marriage. 

Rehabilitation  and  Repudiated 
Marriage. 


§  111.  The  Basic  Conditions  required  for  the  validity  of  mar- 
riage consisted  first  of  all  in  the  Germanic  law,  in  the  consent  of 
the  relatives^  and  of  the  spouses,  and  in  the  equality  of  condition, 
or,  at  least,  in  the  freedom  of  these  latter.-  Hostility  was  shown 
to  unions  between  persons  belonging  to  different  classes  of  soci- 
ety; in  every  other  respect  the  law  was  not  very  strict.  The  Chris- 
tian Church  was  inspired  by  totally  different  ideas;  it  took  no  ac- 
count of  social  condition,  because  in  its  eyes  the  faithful  are  equal 
before  God;  in  return,  it  attached  the  highest  importance  to  the 
religious  condition  of  the  spouses,  if  one  may  speak  of  it  thus,  and 
to  the  morality  of  the  marriage.  In  these  two  respects  it  in- 
creased impediments  far  too  much,  contrary  to  its  habitual  tend- 
ency, which  is  to  facilitate  access  to  the  sacraments.  Outside 
of  reasons  of  a  religious  ^  or  moral  ■*  nature  which  caused  it  to  ar- 
rive at  this  decision,  it  found  in  this  systematic  enlargement  of 
obstacles  to  marriage  a  means  of  making  up  for  lack  of  divorce.^ 
Upon  a  point  on  which  the  canon  law  showed  itself  to  be  lax,  that 

1  "Wis.,"  3,  1,  1  (Anf.);  3,  2,  8;  "Roth.,"  19.5,  "Liut.,"  120;  Grimm,  436. 

*  "Wis.,"  id.  (marriages  between  Goths  and  Romans  permitted);  Meynial, 
p.  31;  c/.  post,  "MisaUiance";  Koehne,  " Geschlechtsvcrb.  d.  Unfreien  i.  Fr. 
R.,"  1888  ("Untcrs.,"  by  Gierke);  Glasson,  3,  28.  At  Naples,  prohibition 
of  marriage  with  a  "persona  turpis";  "Cod.  Just.,"  5,  5,  7;  contra,  canon  law 
(meritorious  act).  Sometimes  it  was  forbidden  for  the  citizens  of  a  town  to 
marry  foreigners. 

8  Difference  in  belief,  monastic  vows,  etc. 

^  Infra,  see  each  one  of  the  impediments  by  itself. 

6  Cf.  infra,  "Dissolution  of  Marriage  for  Political  Reasons."  It  has  been 
pretended,  we  think  wrongly,  that  the  Church  had  increased  the  number 
of  impediments  because  it  had  an  interest  in  so  doing,  as  by  this  means  it 
could  have  the  power  to  grant  dispensations  and  require  payment  of  the 
customary  remunerations  for  their  granting,  liut  it  is  quite  possible  that 
this  concern  of  a  fiscal  nature  was  not  entirely  foreign  to  the  maintaining  of 
impediments  which  had  been  originally  created  with  quite  another  object. 

Ill 


§111]  THE    FAMILY  [Chap.  I 

is,  regard  to  the  consent  of  the  relatives,  royal  legislation  revived, 
in  accord  with  custom,  the  principles  of  the  Germanic  and  Roman 
laws;  the  consent  of  the  family  was  strictly  demanded.  As  re- 
gards the  canon  law,  marriage  was  a  sacrament;  as  regards 
monarchic  law,  the  union  of  two  families;  as  regards  Revo- 
lutionary law,  it  was  a  contract  between  two  individuals,  and  it 
was  likened  as  much  as  possible  to  ordinary  contracts  by  the  sup- 
pression of  impediments  of  a  religious  nature  or  of  those  which 
were  drawn  from  the  old  organization  of  the  family.^ 

§  112,  Classification  of  Impediments.  — The  classifying  of  im- 
pediments into  two  classes,  invalidating  and  prohibitive,  is  the 
work  of  the  Courts  of  the  Church.  Called  in  to  give  their  opinion 
upon  the  validity  of  marriages,  they  often  recoiled  from  annul- 
ment: there  was  in  this  an  early  check  to  the  increase  of  impedi- 
ments. 

§  113.  Invalidating  Impediments.^ —  (I)  Lack  or  Defects  of 
Consent.^  Consent  is  defective,  for  example,  in  cases  of  drunken- 
ness or  madness,^  or,  again,  when  one  of  the  spouses  has  pretended 
to  give  consent.^  Even  since  Trent,  no  essential  formula  is 
required.  Defects  in  consent  are:  mistake,^  violence,  abduction. 
In  order  to  constitute  an  impediment  to  marriage  the  mistake  ^ 
must  have  a  bearing  upon  the  person  or  the  condition;  if  it  has  a 
bearing  upon  qualities  or  upon  wealth,  it  is  of  no  effect.^    The 

1  Law  of  Sept.  20,  1792.  Cj.  Plans  for  the  Civil  Code  in  Fenet,  I,  18,  108, 
159,  330. 

2  The  list  of  these  has  become  fixed,  after  the  thirteenth  century,  at  least. 
2  Launay,  "Inst.,"  2,  5;  Scaduto,   "Consenso  n.  Nozze,"   1885;  Freisen, 

229,  257,  276;  Esmein,  I,  302. 

4  Gratian,  C,  15,  q.  1,  c.  7;  C,  32,  q.  7,  c.  26;  Dig.  X,  4,  1,  24;  Pothier, 
no.  92.  Validity  of  a  marriage  contracted  during  a  lucid  interval  {Gratian, 
C,  7,  q.  1,  c.  14;  Bardet,  2,  467),  of  the  marriage  of  deaf  mutes  (Dig.  X,  4, 

1,  23;  "Arr.,"  Jan.  16,  1658),  according  to  Hostiensis. 

^  The  nullity  of  the  marriage  under  the  pretext  that  one  of  the  spouses 
had  pretended  to  give  his  consent,  but  had  not  in  reality  consented,  was  pro- 
posed under  the  system  of  marriage  "solo  consensu"  (Dig.  X,  4,  1,  26); 
after  the  Council  of  Trent  it  would  have  been  necessary  to  set  it  aside.  This 
nullity,  however,  was  so  thoroughly  maintained  that  Napoleon  I  was  able  to 
invoke  it  before  the  Ecclesiastical  Judge  of  Paris  as  a  basis  for  his  request  for 
annulment  of  Ms  marriage  with  Josephine.  Cf.  "Acta  S.  Sedis,"  1885,  28,  14, 
Henry  IV  and  Marguerite  of  Valois. 

6  Stahl,  "De  Matr.  ob  Err.  Resc,"  1841;  Halfes,  "De  Imp.  Err.,"  1861; 
Daller,  "Irrth.  als  Ehehind.,"  1862;  Leonhard,  "Irrthum,"  1882;  Gerigk, 
"Irrthum  u.  Betrug  als  Ehehind.,"  1897;  Gaugusch,  "Irrth.  als  Ehek.," 
1897;  Andreae,  1893. 

^  And  not  fraud.     It  was  otherwise  in  the  Evangelical  Church. 

8  Qualities:  incurable  madness,  disgraceful  penalty,  pregnancy  of  the 
fiancee  due  to  a  third  party,  prostitution,  also  station  in  life,  etc.:  Dig.  X, 

2,  24,  25,  etc.;  Bardet,  2,  45;  Pothier,  no.  313  (order  validating  marriage  with 
a  man  condemned  to  the  galleys  after  publication  of  banns).     The  quality 

112 


Topic  4]  CONCERNING    EVIPEDEMENTS    TO   MARRIAGE  [§  113 

"error  personse"  consists  in  a  mistake  in  the  physical  identity  of 
one  of  the  spouses  ^  or  in  a  mistake  as  regards  quahties  so  essential 
that  they  amount  to  the  same  thing  as  though  the  spouse  were  a 
person  other  than  the  one  supposed  to  have  been  married;  these 
quahties  are  those  which  constituted  the  civil  status  of  persons  ^ 
(for  example,  if  a  man  should  falsely  say  he  was  the  son  of  such 
and  such  a  prince). 

The  "error  conditionis"  only  exists  when  one  marries  a  slave ^ 
believed  to  be  free.  Violence  is  only  an  impediment  when  it  is 
"adversus  bonos  mores"  and  can  act  "in  constantem  virum.^ 
Abduction  by  violence  ^  is   also   an   impediment,^  although  the 

can  be  put  "in  conditione"  according  to  the  canon  law  ("copula  purificatur 
pendente  conditione")-  —  In  the  old  "For  de  Navarre,"  4,  2,  if  the  betrothed 
woman  was  not  a  virgin  the  marriage  was  broken  (proofs  analogous  to  those 
in  use  among  the  Arabs).  Kormnann,  "De  Virginitate,"  1765;  St.  Jerome, 
I,  c.  "Jovin";  Bedier,  "Tristan  et  Iseult;  Thaner,  "Abalard  u.  das  Canon. 
Recht."    1900,  "Legre  v.  Error  Qualit.  Akad.  Wien"  ("  B.  Ch.,"  1902,  377). 

^  Classical  example:  marriage  of  Jacob  and  Leah,  when  he  thought  he 
was  marrying  Rachel. 

2  "Error  qualitatis  redundans  in  personam."  Hue,  " Le  Code  Civil  Ital.,"  I, 
p.  51,  cf.  "  C.  Civ.,"  Art.  ISO;  error  as  to  the  person;  Hericourt,  "Loix  Eccles.," 
G  76;  Cabassut,  "Theoria  et  Praxis,"  p.  351;  Esmein,  I,  314.  —  A  young 
man  represents  himself  to  be  the  son  of  the  king  of  France;  the  young  girl 
believes  that  she  is  marrying  the  son  of  the  king  of  France  (who  actually 
exists  and  who  would  be  capable  of  ratifying  the  marriage)  and  does  not  con- 
sent to  marry  the  person  who  is  present;  it  would  be  otherwise  if  he  repre- 
sented himself  as  being  a  king's  son,  in  general:  Stahl,  "De  Matrimonio  ob 
Errorem  Resc,"  1841;  Thaner,  "Wien.  Ak.,"  1889;  Sehling,  "D.  Z.  f.  K." 
I,  51. 

3  And  not  a  serf.  Gratian,  C,  29,  q.  1,  c.  4  and  6;  Dig.  X,  4,  9;  "Fuero 
Real,"  4,  11. 

■*  Dig.  X,  4,  1,  28;  Scaduto,  432.  Reverential  fear  is  not  sufficient.  San- 
chez, "De  Matr.,"  4,  12.  —  Marriage  validated  "ex  nunc"  by  consent  or 
"copula"  and  after  the  violence  has  ceased;  tacit  consent  by  cohabitation 
for  a  year  and  a  half:  Dig.  X,  4,  7,  2;  4,  IS,  4.  Cj.,  however,  " Arr.,"  April 
24,  1651  {Soefve,  I,  3,  74).  After  the  Council  of  Trent  another  celebration 
was  necessary:  Olivcrio,  "De  Null.  Matr.  ex  Defectu  Consens.,"  1609; 
Giordano,  "Matr.  Contr.  Vi,"  1S42;  Ploch,  "De  Matr.,  Vi  ac  Metu  Contr.," 
1853;  cJ.  P.  de  Fontaines,  15,  60.  Mere  reverential  fear  is  not  an  impedi- 
ment. Council  of  Trent,  s.  24,  9.  Marriage  contracted  under  the  com- 
pulsion of  violence  ceases  to  be  voidable  for  this  reason  when  it  is  freely 
consummated  or  life  in  common  goes  on  without  any  compulsion  during  a 
year  and  a  half.  Dig.  X,  4,  1,  21.  As  to  rape,  cJ.  "Schwabensp.,"  c.  33,  87, 
196;  "T.  A.  C.  Norm.,"  50;  Bout.,  2,  8. 

6  Colberg,  "Entfuhr.,"  1869;  Scaduto,  §  12,  23,  178;  Freisen,  567;  DuPlessis 
deGr.   "Autor.  Fat.  "  227  392. 

^  Esmein,  I,  391;  Tl,' 250;  Dargun,  "Mutterrecht  u.  Raubehe,"  18S3. 
Horrible  penalties  under  the  Lower  Empire,  so  frequent  wtxa  abduction:  "Cod. 
Thcod.,"9,  24;  "Cod.  Just.,"  9,  13;  "Nov.,"  143,  150;  "Wis.,"  3,3.  Death  of 
the  ravisher:  "Conciles";  Chalcedoine,  451,  c.  27;  "Paris,"  557,  0;  Gratian,  Q., 
36,  q.  2;  "Meaux,"  845,  64;  "Capit.,"  817,  23;  819,  9;  6,  60  and  7,  395.  Con- 
trary tendency  (favoring  marriage,  Jewish  law,  which  validates  after  the 
thing  has  taken  place,  provided  the  consent  of  the  parents  be  given.  Seneca 
and  Quintillian  say  that  the  girl  who  has  been  ravished  has  the  right  to  com- 
pel the  ravisher  to  marry  her,  or  else  to  demand  his  death).    Gratian,  C. 

113 


§  113]  THE   r.\JVIILY  [Chap.  I 

first  violence  may  have  ceased;  so  long  as  the  woman  carried 
away  is  still  in  the  hands  of  the  abductor/  she  is  considered  as 
being  incapable  of  giving  a  free  consent.  Abduction  with  seduc- 
tion ^  was  likened  by  French  jurisprudence  to  abduction  by  vio- 
lence; in  its  desire  to  prevent  marriages  contracted  by  minors 
without  the  consent  of  their  relatives  it  went  so  far  as  to  establish 
the  presumption  that  this  sort  of  abduction  took  place  in  every 
marriage  of  this  kind. 

§  114.  The  Same.  —  (II)  The  Consent  of  the  Relatives  to  the 
Marriage  ^  was  required  by  Roman  legislation  '^  as  well  as  by  the 

36,  q.  2:  marriage  allowed  if  the  father  is  not  opposed  to  it;  Dig.  X,  5, 
17,  7:  validity  of  the  marriage  provided  the  consent  of  the  woman  has  been 
free,  —  even  if  she  is  found  to  be  under  the  power  of  her  ravisher.  Dig.  X, 
5,  17,  6;  Innocent  III,  before  1210;  Yves  de  Chartres,  "Ep.,"  19.  —  Trent, 
e.  24,  c.  4:  marriage  is  not  possible  as  long  as  the  girl  who  has  been  ravished 
is  in  the  power  of  the  ravisher;  if  she  is  no  longer  in  his  power  she  mav  give 
her  consent  to  the  marriage  (penalties  against  the  ravisher:  excommunication, 
infamy).  "Ord."  1579,  41;  1629,  169;  1639,  5;  "Arr  "  1681;  Horry,  "Mar. 
Chretien,"  p.  159;  Muyart  deVouglans,  "Lois  Crim.,  '  3,  4;  Guyot,  Ferrihre, 
—  "Alais,"  16;  "Montp.,"  85;  "Nav.,'^  4,  3;  Lahourt,  19,  10.  —  "Ass.  de  J.," 
"C.  d.  B.,"  134;  "L.  d.  Droiz,"  226;  "G.C.  Norm.,"  33, 11;  Boutaric,  I,  39,  etc. 

1  Rape:  death,  castration,  an  arbitrary  penalty  in  the  old  law;  sometimes 
the  perpetrator  of  the  rape  himself  obtained  a  husband  for  the  outraged 
woman  of  similar  condition  to  the  one  she  would  have  been  able  to  have,  had 
there  been  no  rape,  which  amounts  to  the  same  thing  as  giving  her  a  marriage 
portion:  "For  de  Navarre,"  24,  6;  Lagreze,  "Dr.  d.  Pyrenees,"  p.  311;  "C. 
de  Barcelone,"  108;  "L.  d.  Droiz,"  659,  etc. 

2  "Ord."  1579,  Art.  40;  1629,  39,  169;  1639;  Nov.  22,  1730;  "Encycl. 
Method.,"  "Jurisprud.,"  VII,  198;  Durand  de  Maillane,  see  "Diet,  de  Dr. 
Canon";  Fournel,  "Tr.  de  la  Seduction,"  1781;  Duguit,  "N.  R.  H.,"  1886, 
586.  —  Cf.  Rozihre,  "Form.,"  no.  241.  —  On  the  canon  law  Van  Espen,  2,  13, 
10;  3,  4. 

^  Gibert,  "De  Doctr.  Canon,  c.  Requis.  Parentum  Cons.,"  1709;  Wiirffel, 
"De  Parent.  Cons.,"  1740;  Valsecchi,  "De  Spons.  ad  Inst.  par.  a  Filio  f. 
Contr.,"  1710;  Muscettula,  "De  Spons.  et  Matr.  q.  a  Filio  f.,"  1762,  1772; 
Heyer,  "De  Cons.  Par.,"  1863;  Scaduto,  "II  Consenso  n.  Nozze,"  1885;  Van- 
troijs,  "Thdse,"  1889;  Stohhe,  "D.  Privatr.,"  §  254;  Freisen,  227,  308;  Es7nein, 
I,  211;  Duguit,  "N.  R.  H.,"  1886,  587;  Viollet,  402. 

^  As  a  consequence  of  the  power  of  the  father,  first  of  all ;  under  the  Lower 
Empire,  if  there  were  no  father,  then  the  mother  or  the  near  relatives  inter- 
vened ("Cod.  Just.,"  5,  4,  18  and  20)  so  that  the  consent  of  the  family  seems 
to  have  been  required  with  the  object  of  protecting  the  child:  "Cod.  Th^od.," 
3,  7,  1;  Meynial,  p.  18  et  seq.  Disagreement:  the  prince  or  the  judge  settles 
the  dispute.  Cf.  powers  of  the  Frankish  kings:  "Chlotar.  Praec,"  7  and  18 
("viduae"  and  "sanctimoniales,"  as  in  Roman  law).  —  A  misapprehension 
of  the  meaning  of  the  celebrated  passage  from  Paul:  "Sent.,"  2  (19),  20,  2, 
"Int."  (c/._  Sirmond,  "Form.,"  16;  Roziere,  241  et  seq.),  made  people  see  in  the 
lack  of  this  consent  only  a  prohibitive  impediment;  Paul  said,  "Those  who 
are  'in  potestati  patris'  cannot  marry  without  the  consent  of  the  'pater,'  but 
public  interest  demands  that  the  'pater'  should  not  be  able  to  break  the  mar- 
riage to  which  he  has  given  his  consent,  whereas,  in  the  olden  times,  he  had 
a  right  to  do  this."  This  text  was  understood  to  mean  this,  that  marriage 
contracted  in  spite  of  the  "pater"  could  not  be  dissolved  ("sed  contracta  non 
solvuntur"):  Meynial,  19,  n.  4.  "Petrus,"  I,  31,  49,  absolutely  demands  the 
consent  of  the  father.    Vantroys,  p.  77. 

114 


Topic  4]  CONCERNING   niPEDIMENTS   TO   MARRIAGE  [§114 

Germanic  Customs.^  One  is  surprised  to  find  that  the  canon  law 
departed  upon  this  question  from  the  two  legislations  from  which 
it  had  especially  borrowed.  It  was  not  without  some  hesitation 
that  it  arrived  at  this  point.^  Gratian  still  teaches  that  the  be- 
trothal and  the  marriage  of  children  are  not  valid  without  the 
consent  of  the  father.^  But  his  contemporary,  Peter  Lombard, 
is  of  a  contrary  opinion:  the  consent  of  the  spouses,  according  to 
him,  alone  constitutes  the  marriage.^  The  distinction  between 
the  "  desponsatio "  in  which  the  relatives  figured,  and  the  celebra- 
tion of  the  marriage,  where  the  spouses  alone  had  anything  to  say, 
favored  the  victory  of  this  explanation.  As  the  betrothals  came 
to  be  necessary  no  longer,  so  did  the  consent  of  the  relatives  pass 
to  the  rank  of  impediments  which  were  merely  prohibitive.^  The 
Church  was  compelled  to  enforce  the  rule  that  as  to  spiritual 
matters  the  child  was  from  puberty  withdrawn  from  the 
paternal  power;  ^  he  was  permitted  to  enter  into  religious 
orders,  which  constituted  a  sort  of  spiritual  marriage,  in  spite 
of  his  father.  At  the  Council  of  Trent  the  question  was  dis- 
cussed at  the  request  of  the  representatives  of  France.  The 
Council  adhered  to  the  classical  doctrine  of  the  Church,  but  in 
forbidding  secret  marriages  it  indirectly  prevented  many  unions 
which  were  only  hidden  because  they  were  contrary  to  the  views 
of  the  relatives.^ 
This  was  an  insufficient  reform,  considering  the  old  usages  and 

^  Betrothals.  Consent  of  the  "mundoaldus"  (father,  guardian).  Cf. 
Frankish  law,  intervention  of  the  mother:  "Cap.,"  I,  §  6,  "ad  L.  Sal.  extrav.," 
A,  1;  Hincmar,  "De  Div.  Loth.,"  5  {Migne,  "Patr.  Lat.,"  25,  717);  Picker, 
"Mitth.  Oest.  Gesch.  f.,"  II,  455,  1888;  "Majestas  Carohna,"  c.  85  (Bo- 
hemia, fourteenth  century;  Jirecek,  "Cod.  Jur.  Bohem.,"  2,  2,  168);  Dareste, 
"Etudes,'-  passim]  Fertile,  §  108  n.  57;  Latles,  p.  231  et  seq. 

2  Tertullian,  "Ad  Uxor.,"  2,  9  (consent  of  the  father);  C,  30,  q.  5,  c.  7; 
Canon,  "Ahter";  Gratian,  C,  30,  q.  5,  c.  1;  Canon,  "Nostrates"  or  rescript 
of  Nicholas  I  to  the  Bulgarians;  C,  30,  q.  5,  c.  3. 

3  C,  31  and  32;  35,  q.  6,  c.  2;  cf.  "Capit.,"  7,  463;  P.  Lombard,  "Sent.,"  IV, 
D.  28,  b;  Dig.  X,  5,  6;  "Trent,"  s.  24,  1;  {Migne,  "Patr.  Lat.,"  192,  915). 
The  Eastern  Church  requires  the  consent  of  the  father  for  the  marriage  of  a 
child  "aUeni  juris,"  and  even  sometimes  that  of  the  mother  or  the  relatives 
for  the  marriage  of  the  daughter  "sui  juris." 

^  "Sent.,"  IV,  D.,  28,  b.  {Migne,  "Patr.  Lat.,"  192,  915);  Dig.  X,  4,  5,  6; 
"Trent,"  s.  24,  1  (after  the  age  of  14  and  12).  Freedom  of  the  contracting 
parties,  conception  of  the  sacrament. 

^  Similar  evolution  in  that  which  concerns  the  consent  of  the  master  to 
the  marriage  of  slaves:  Dig.  X,  4,  9,  1;  Council  of  Trent,  24,  1;  Freisen,  283; 
Scaduto,  338. 

6  Cf.  "Power  of  the  father." 

'  The  Council  limited  itself  to  the  condemnation  of  these  marriages,  but 
did  not  dare  annul  them  for  fear  of  driving  people  to  debauchery  and  out  of 
respect  for  the  freedom  of  the  soul.  Cf.  English  law,  Glasson,  "Inst.  Angl.," 
VI,  172. 

115 


§  114]  THE    FAMILY  [Chap.  I 

customs.^  The  monarchic  law  went  much  further  than  this.^ 
The  Ordinances  of  the  sixteenth  century,^  and  first  of  all  the  Edict 
of  Henry  II  of  February,  1556/  compelled  sons  to  obtain  the  con- 
sent of  their  parents  ^  up  to  the  age  of  thirty,  daughters  up  to  the 
age  of  twenty-five  years;  ^  having  attained  this  age,  it  was  enough 
if  they  asked  for  their  opinion  and  their  advice/  The  penalty  for 
an  infringement  of  these  rules  was  very  severe:  (a)  power  of  the 
parents  to  disinherit  ^  the  child  who  had  married  in  spite  of  them, 
and  to  revoke  gifts  made  to  him  (Edict  of  1556);  forfeiture  of  all 
right  ^  to  the  inheritance  and  the  advantages  resulting  from  the 

1  Beaumanoir,  15,  31;  21,  12;  "Et.  de  St.  Louis,"  I,  67  (marriage  by  the 
father  or  the  mother  who  survived,  without  the  counsel  of  relatives).    Irifra. 

2  The  State,  they  said,  can  regulate  the  conditions  of  the  civil  contract, 
which  is  the  material  part  of  the  sacrament,  and  can  create  invalidating  im- 
pediments. As  to  Protestant  theories,  cf.  Strampff,  "Luther,"  304,  325; 
Bohmert,  "Jus.  Eccles.  Prot.,"  1738. 

3  Edict  of  Feb.,  1556;  "Ord.  Blois,"  1579,  40;  Edict.  1606;  "Ord.,"  1629, 
39;  "Ord.,"  1639;  "Arr.,"  1651,  1659  —  Mellier,  "Edit  d'Enri  II,"  1558; 
Coras,  "Paraphrase  S.  I'Edit,"  1579;  Pulvceus,  "De  Nupt.  s.  Parentum  Cons.," 
1578;  Pasquier,  "Rec.  Chronol.  Cone,  les  Mar.  Clandestins,"  1660;  Le  Merre, 
"Justif.  des  Usages  s.  les  Manages  des  Enf.  de  Famille,"  1687;  Le  Conte,  on 
The  Edict  of  1556  in  "Neron  and  Girard,"  I,  351.  Le  Prestre  has  written  two 
treatises  on  Clandestine  Marriages.  Horry,  "Obs.  s.  les  Edits,"  1692;  Muyart 
de  Vouglans,  "Loix  Crim.,"  3,  4;  "Fors  de  Navarre,"  24,  3  (nullity  of  mar- 
riage, disinheritance);  Labourt,  12,  14;  Isamb.,  XI,  569  ("Bret.,"  1510). 

■*  Enacted  upon  the  occasion  of  the  marriage  of  Montmorency  de  Piennes. 
De  la  Ferriere,  "Correspondant,"  Aug.  10,  1885;  "N.  R.  H.,"  1886,  605;  cf. 
Preamble  of  the  Edict;  Isambert,  XI,  569  (marriage  of  minors  in  Brittany); 
"Letters  of  Pasquier,"  III,  1. 

^  Of  the  father  and  the  mother;  but  in  case  of  disagreement  the  wishes  of 
the  father  are  alone  to  be  taken  into  consideration.  If  the  father  is  dead,  the 
mother  who  has  not  remarried  should  give  her  consent:  Boutaric,  "Inst.," 
1,  10. 

8  Fevret,  "Abus.,"  5,  2,  13;  Hericourt,  3,  5,  2,  75,  who  does  not  draw  any 
distinction  between  girls  and  boys,  and  only  annuls  marriage  in  the  case  of 
both  of  them  if  it  has  been  contracted  before  the  age  of  25  years;  Julien, 
"Elem.  de  Jur.,"  p.  19  et  seq. 

'  Advice  of  the  mother  who  remarries.  Procedure:  Order  of  August  27, 
1692;  request  addressed  to  the  royal  judge  in  order  to  give  the  father  and 
mother  a  respectful  summons  to  give  their  consent  to  the  marriage  with  such 
and  such  a  person.  Upon  obtaining  permission  from  the  judge,  the  child  goes 
with  two  notaries,  or  with  one  notary  and  two  witnesses,  to  ask  for  the  con- 
sent; the  notary  draws  up  the  deed.  —  The  Declaration  of  1639  requires  the 
consent  of  the  parents  to  the  publication  of  the  banns.  The  Ordinance  of 
Blois  had  prescribed  this  publication,  especially  in  order  to  avoid  marriages 
which  were  carried  out  against  the  wishes  of  the  parents:  Gibert,  "Consult, 
s.  le  Mar.,"  1727;  Launoy,  op.  ciL,  p.  1032. 

8  Penalty  of  disinheritance  at  Rome  m  a  case  of  this  sort:  "Cod.  Th^od.," 
IX,  24,  1;  "Nov.  Just.,"  115,  3;  "Wis.,"  3,  2,  8  and  4,  7;  "Burg.,"  12,  5; 
Papien,  9,  2;  "Liut.,"  5,  19";  "Thur.,"  47;  F.  de  Daroca,  1142;  P.de  Font., 
23,  36;PouU.ainduParc,"  "Princ,"  I,  116;  Pothier,  "Succ,"  1,  4, 1:  a  daughter 
would  not  have  been  disinherited  for  having  allowed  herself  to  be  seduced 
once  or  twice  (sic)  but  only  if  she  had  become  a  prostitute.  Cf.  "Disinheri- 
tance," "Power  of  the  Father." 

3  Jurisprudence  does  not  strictly  adhere  to  this  rule:  Boutaric,  "Inst.,"  1, 
10,3. 

116 


Topic  4]  CONCERNING   IMPEDIMENTS   TO   MARRIAGE  [§114 

contract  of  marriage,  from  a  will,  from  Customs  (Declaration  of 
November  26,  1639);  (b)  arbitrary  penalties  against  children  and 
their  accomplices;  these  latter  were  punished  as  abettors  of  the 
abduction,  according  to  the  Ordinance  of  Blois,  1579,  Art.  40;  (c) 
nullity  of  the  marriage  of  the  minor,  pronounced  not  by  the 
ordinances,^  but  by  jurisprudence,^  because  he  was  presumed  to  be 
tainted  with  abduction.^  When  the  consent  of  the  parents  had 
not  been  sought  (a  respectful  asking)  ^  by  the  son  who  was  more 
than  thirty  years  of  age,  or  the  daughter  who  was  more  than 
twenty-five,  disinheritance  was  possible,  but  the  marriage  was  not 
annulled.^  In  default  of  father  or  mother,^  the  minor  who  was 
under  the  care  of  a  guardian  had  to  have  the  consent  of  his  guar- 
dian, who  gave  it  after  having  obtained  the  opinion  of  the  family.^ 
The  nullity  of  marriage  contracted  without  this  consent  was  not 
so  easily  pronounced  as  when  the  consent  of  the  parents  had 
been  lacking.^ 

1  Cf.  however  "Ord.,"  1629,  Art.  39;  Louet,  "M.,"  6;  Vantroys,  "These," 
p.  264:  details  as  to  the  establishment  of  this  jurisprudence  and  as  to  its 
variations. 

2  The  son  who  was  over  twenty-five  and  under  thirty  who  married  with- 
out obtaining  the  consent  of  his  parents,  was  disinherited;  but  his  marriage 
was  not  annulled:  Order  of  July  2,  1660.  After  twenty-five  the  boy  who  had 
neither  father  nor  mother  did  not  have  to  obtain  anybody's  advice:  Ordinance 
of  Aug.  11,  1716. 

^  See  "Abduction  with  Seduction."  According  to  Boutaric,  "Inst.,"  1, 
10,  3,  disinheritance  and  annulment  of  the  marriage  did  not  concur;  it  was 
necessary  to  choose  between  them:  D'Aguesseau,  1772,  IV,  674;  Vantroys, 
p.  291. 

■•  Denisart,  see  "Somm.  respect." 

s  Decl.  1639;  Edict  March,  1697;  cf.  "Arr.,"  Aug.  6,  1661;  Aug.  27,  1692. 

^  Death,  absence  (not  knowing  where  a  person  is),  civil  death:  Decl., 
Aug.  6,  1686;  May  24,  1724,  16.  The  judge  can  only  with  great  difficulty 
supplement  the  consent  of  the  relatives  who  are  present  and,  for  example, 
favor  the  wishes  of  the  mother  and  of  the  relatives  rather  than  those  of  the 
father.  Natural  children  must  have  the  consent  of  their  guardians  as  long 
as  they  are  minors;  they  are  not  under  the  power  of  the  father  and  have 
neither  to  obtain  nor  request  the  consent  of  their  fathers  and  mothers :  Pothier, 
"Manage,"  1,  1,  2,  3. 

^  Beaumanoir,  15,  31:  the  relatives  obtain  a  security  from  the  custodian 
or  the  guardian  that  he  will  not  marry  off  the  minor  without  their  advice; 
if  he  refuses  to  do  this  the  guardianship  is  taken  away  from  him:  cf.  21,  12 
{id.  father  or  survivor,  mother);  "Ord.  Blois,"  43.  Summons  before  the 
judge.  Decl.  of  Aug.  6,  1686  (parents  who  have  emigrated  because  of 
religion;  consent  of  the  guardian  and  the  six  nearest  relatives  and  relatives 
by  marriage,  or,  if  these  are  lacking,  friends  and  neighbors):  Boutaric,  "Inst.," 
110;  "Bret.,"  496  (mother,  guardian  and  near  relatives  with  the  authority 
of  the  law).  "Placitds  de  Norm.,"  32  (the  mother  who  is  a  guardian  should 
have  authority). 

8  According  to  jurisprudence,  the  father  and  mother  are  the  only  ones  who 
have  a  right  to  attack  the  marriage.  Thenceforth  their  consent,  given  after 
the  marriage  has  taken  place,  will  validate  it:  this  is  the  same  thing  as  a  re- 
nunciation of  the  action  for  annulment:  Boutaric,  "Inst.,"  1,  10. 

117 


§  114]  THE   F.\iIILY  [Chap.  I 

The  Revolutionary  Laws  fixed  puberty  at  fifteen  and  thirteen 
years  of  age,  and  did  not  impose  the  obhgation  of  being  provided 
with  the  consent  of  the  father  (lacking  his  consent,  that  of  the 
mother;  lacking  hers,  that  of  a  council  of  five  relatives  or 
neighbors  under  the  supervision  of  the  Mayor)  until  the  end 
of  the  twenty-first  year.^  The  only  penalty  for  those  who 
did  not  conform  to  these  provisions  was  the  annulment  of  the 
marriage.^ 

a.  To  the  consent  of  the  parents  one  can  liken  the  consent  of 
the  king  to  the  marriage  of  princes  of  the  blood,^  the  intervention 
of  the  Prankish  kings  in  the  marriage  of  their  subjects,^  and  finally 
that  of  the  feudal  lords  to  the  marriage  of  their  vassals  ^  or  their 

1  The  same  in  English  law:  Glasson,  "Inst.  Anglet.,"  VI,  172. 

^  Law  of  Sept.  20,  1792.  Decree  of  Sept.  7,  1793:  the  family  council  is 
composed  of  near  relatives  who  arc  not  heirs  presumptive;  if  it  is  opposed  to 
the  marriage  at  the  end  of  a  month  the  minor  need  take  no  notice  of  it,  un- 
less the  opposition  is  based  upon  notorious  badness  of  the  morals  of  the  future 
spouse  or  upon  failure  to  become  re-established  after  a  judgment  carrying 
with  it  infamy.  Sirey,  "Lois  Civiles  Intermed.,"  I,  380.  Reaction  in  the 
direction  of  the  old  law  in  the  Civil  Code :  puberty  at  the  age  of  eighteen  and 
fifteen,  consent  of  the  parents  up  to  the  age  of  twenty-five  and  twenty-one, 
acts  of  respect. 

^  Originally,  especially  because  the  king  is  the  head  of  the  house  (cf.  with 
respect  to  this  the  law  relating  to  the  princely  families  in  Germany);  after- 
wards through  political  motives  and  because  the  marriage  of  an  heir  to  the 
throne  is  not  a  matter  of  indifference  to  the  State:  Isambert,  XI,  447,  453; 
XVI,  413;  Lebret,  1,  8;  Durand  de  MailL,  "Die,"  4,  36.  The  Order  of  Sep- 
tember, 1634,  annuls  the  marriage  of  Gaston  of  Orleans  with  Marguerite  de 
Lorraine  because  it  had  been  contracted  without  the  consent  of  the  king.  The 
doctors  of  the  Sorbonne,  however,  hesitated  because  there  was  no  law  on  the 
point.  This  marriage  was  re-established  in  1647:  "Memoires  de  Math. 
Mole,"  II,  214.  Re-enactment  of  this  law  by  Napoleon:  Senate  Decrees  of 
May  18,  1804,  12  and  7,  and  of  Nov.  10,  1852,  6._ 

^  See  as  to  this,  "Violence."  Roman  origin?  Lampride,  "Alex.  Sev.," 
42;  "Cod.  Theod."  3,  10,  1;  "L.  Rom.  Cur.,"  1,  3;  Meynial,  p.  27.  Ger- 
manic origin?  Post,  "Bausteine,"  II.  123.  In  614,  the  "Prseceptio"  of 
Clotaire  II,  7  and  18,  abolishes  this  law,  or,  rather,  seeks  to  put  an  end  to  the 
abuses  which  it  gave  rise  to.  "Cone.  Orl.,"  IV,  541,  22  {Bruns,  2,  205); 
"Wis.,"  3,  3,  11;  3,  5,  1;  Brunner,U,  56;  Viollet,  411;  Loening,  "D.Kirch.," 
2,  605;  "Acad.  sc.  Toulouse,"  1895  (guardianship  of  Women,  16);  cf.  Du 
Plessis  de  Grciiedan,  "Autor.  Pat.,"  p.  248;  Grimm,  437.  After  this  the  king 
married  the  daughters  of  the  lords  by  force;  examples  in  the  old  epics,  like 
"Raoul  de  Cambrai,"  and  in  real  life  (Louis  XI  and  Louis  XII):  Viollet, 
p.  411  ct  seq.,  who  cites  Tagcreau,  "Practicien  Fr."  1647,  p.  624;  same  right 
for  emperor  (e.  g.  in  1232  for  Frankfort,  Boehmer,  "Cod.  Dipl.  Francof.,"  I, 
55),  for  the  king  of  England,  etc.,  Fertile,  §  108,  n.  59  ct.  seq. 

6  "T.  A.  C,  Norm.,"  11,  4;  "Gr.  C,"  33;  "Norm.,"  231;  J.  d'Ibelin,  227 
et  seq.;  171  et  seq.;  "Et.  de  St.  Louis,"  edit.  Viollet,  3,  357.  —  Let  us  recall  the 
celebrated  passage  from  the  "Assizes  of  Jerusalem,"  where  J.  d'Ibelin  shows 
us  the  Ordinary  presenting  three  barons  to  his  lady  vassal  for  her  to  choose 
from,  c.  227.  Granville,  7,  12.  Cf.  Glasson  "Hist,  du  Dr.  de  I'Angleterre," 
II,  207;  Pollock  and  Maitland,  I,  299.  The  seigniorial  right  disappeared 
rather  soon  in  France,  at  least,  generally  speaking,  and  the  lady  vassal  was 
left  with  the  power  to  marry  herself  as  she  wished:  "Olim."  IV,  56,  8;  "  Char- 
roux,"  1247,  11;  "Montp.*,"  84;  "Bretagne,"  678. 

118 


Topic  4]  CONCERNING   IMPEDBIENTS   TO   MARRIAGE  [§115 

serfs.^  The  Council  of  Trent  and  the  Ordinance  of  Blois,  1579, 
Art.  281,  were  obliged  to  forbid  these  abuses  on  the  part  of  the 
lords;  ^  but  until  the  Revolution  something  of  the  old  law  which 
had  been  abolished  remained  in  the  Customs. 

§  115.  The  Same.  —  (III)  Incapacity.  1st.  Imyuherty?  Girls, 
until  the  age  of  twelve  years,  and  boys  until  the  age  of  fifteen, 
are  presumed  not  to  have  arrived  at  the  age  of  puberty;  ^ 
the  marriage,  however,  would  be  valid  in  case  of  puberty  in 
fact  previous  to  this  age  ("malitia  supplet  setatem").^  Cohab- 
itation after  attaining  puberty  removes  this  impediment.^ 
2d.  Impotence  J  The  idea  that  marriage  was  a  remedy  for  incon- 
tinence and  the  old  practice  of  divorce  ^  led  the  Church  to  make 
an  impediment  of  impotence  ^  (in  conformity  with  the  Galilean 

1  A  number  of  Customs  of  the  South  of  the  twelfth  and  thirteenth  centuries 
allow  the  inhabitants  of  those  countries  freedom  with  regard  to  marriage: 
Bacquet,  "Aubaine,"  1,  4;  "Code  Matrim.,"  1,  217;  Thudichum,  "Ueb. 
Unanlass.  Beschrank  d.  Verehelich,"  1866;  "Ord."  XI,  Table,  see  "Mariage." 
As  to  the  right  of  the  lord,  see  "Raepsaet,"  id.,  1878. 

2  Bull  of  Pius  IX,  "ApostoHcse  Sedis,"  1869.  Viollet,  p.  414,  Ukens  the 
compulsory  marriages  in  Canada  in  the  seventeenth  century  to  these  facts: 
shiploads  of  disorderly  women  were  sent  out  from  the  metropolis,  and  within 
fifteen  days  of  the  time  they  disembarked  every  bachelor  had  to  take  a  wife 
from  among  them.  Cf.  Manon  Lescaut  —  let  us  also  liken  to  this  the  mar- 
riage of  soldiers  in  our  day. 

^  Hormann,  "Despons.  Impuber.,"  1891;  Dig.  X,  and  "in  VI,"  4,  2. 

*  Twelve  and  fourteen  years  completed:  Dig.  X,  4,  2,  10;  cf.  Roman  law 
(Ulp.  11,  28);  Beaumanoir,  15,  29  (10  yrs.).  Cf.  Puberty  at  an  advanced  age 
among  the  Alemanni  (Tacitus  20),  Lagreze,  "Navarre,"  II,  178.  Caesar, 
"B.  G.,"  6,  21;  "Roth.,"  155;  "Liut.,"  129. 

6  Dig.  X,  4,  2,  3,  8;  Montesquieu,  "Esprit  des  Lois,"  23,  7.  Viollet,  p." 415, 
seems  to  us  to  attach  too  much  importance  to  the  Sabine  tradition:  B.  de  Mer- 
ville,  "Majorites,"  p.  516  (1729);  "Code  Matrim.,"  2,  540. — Possible  dispen- 
sations (Louis  XI).  Dig  X,  4,  2,  2.  In  the  olden  times  people  were  often  mar- 
ried before  the  legal  age:  cf.  "Jostice,"  p.  186;  "L.  de  Droiz,"  no.  910;  Gautier, 
"Chevalerie,"  p.  351.  As  to  the  betrothals  or  marriages  of  those  who  had  not 
attained  puberty  that  were  made  for  them  by  their  parents,  cf.  Fertile,  §  108,  n.  53 ; 
Etienne,  "  Droit  de  Djebr.  et  Mar.  des  Impub.  chez  les  Musulmans,"  1898. 

6  Dig.  X,  4,  2,  10:  Boutaric,  "Inst.,"  1,  10;  Pothier,  no.  95. 

^  A.  Hotman,  "Tr.  de  la  Dissol.  du  Mar.  par  ITmp.,"  1581;  Tagereau, 
"Disc.  s.  ITmp.,"  1611;  Rouillnrd,  "Capitulaire,"  1600;  Grimaldi,  "Dis- 
sert.," 1765;  Boucher  dArgis,  "Null,  du  Mar.  p.  e.  dTmpuissance,"  1756 
(wdth  the  treatise  by  Bouhier,  1735);  Pasquier,  "Inst,  de  Just.,"  p.  63;  Maul- 
trot,  "Ex.  des  Princ.  s.  une  Quest.  Matr.,"  (1788);  Richter,  §  274  (bibl.); 
Friedberg,  §  145;  Freisen,  323;  Esmein,  I,  232;  II,  273;  Camus,  nos.  1488  s.; 
Horry,  "Mar.  Chretien,"  1700,  p.  237;  "Obs.,"  p.  SO.  Cf.  Michelet,  "Orig.," 
p.  .53;  Sehling,  op.  cit.  no.  8;  see  "Encicl.  Giur.  Ital." 

*  Roman  Law:  D.,  23,  3,  39,  1  (distinction  between  castration  and  the 
"spado");  Leo  the  Philosopher  annuls  the  marriages  of  eunuchs:  "Const.," 
98;  D.,  24,  1,  61;  divorce  "bona  gratia  propter  sterilitatem,  scnectutem, 
valetudinem";  "Cod.  Just.,"  5,  17,  10  (impotence  just  cause  for  divorce); 
time  of  proof  of  two  years,  and  according  to  the  "Nov.,"  22,  6,  three  years. 
Sehling,  "Wirh.  d.  Geschlechtsgemeinschaft  auf  d.  Ehe.,"  1885;  Loening, 
"Deut.  Kirchcnr.,"  II,  617. 

8  (A)    Just  cause  for  divorce  according  to  Hincmar  (avoiding  a  murder); 

119 


§  115]  THE    FAMILY  [Chap.  I 

theories) ;  again,  it  was  necessary  for  this  that  the  latter  be  previous 
to  the  marriage  ^  and  incurable.  Neither  age  in  the  case  of  the  hus- 
band nor  sterility  in  the  case  of  the  woman  affected  the  validity  of 
the  marriage.^  It  was  an  easy  matter  to  demand  the  annulment  of 
the  marriage  because  of  impotence;  ^  it  was  far  less  easy  to  know 
when  impotence  existed.  The  practice  wavered  between  two  dan- 
gers :  very  uncertain  proofs  to  be  deemed  sufficient,  as  the  confession 
of  the  spouses,^  ordeals,^  the  oath,®  cohabitation  for  three  years,^ 
and  then  arbitrarily  to  dissolve  the  marriage  at  the  pleasure  of  the 
parties;  or  to  demand  a  positive  proof  and  then  not  to  be  deterred 
by  any  scandal.  It  is  thus  that  a  physical  examination  by  experts  ^ 
was  arrived  at,  and  that  in  the  middle  of  the  sixteenth  century  the 
jurisprudence  of  the  Parliament  of  Paris  imposed  the  ridiculous 
and  shameful  proof  of  the  "Congress."^     An  order  of  the  18th  of 

Gratian,  C,  33,  q.  1;  "Council  of  Compiegne,"  757  (the  papal  legate 
Georges,  accepts  this  doctrine);  "Verberie,"  758  or  768  (proof  of  the  cross); 
"Faux.  Capit.,"  6,  55  and  91.  If  there  were  no  consummation  of  the  mar- 
riage indissolubility  did  not  exist.  —  (B)  The  theory  of  marriage  by  mutual 
consent  caused  tliis  point  of  view  to  be  abandoned,  and  impotence  became  an 
impediment.  Cf.  "Divorce."  — •  (C)  The  Roman  Church  admitted  that  the 
spouses  ought  to  live  like  brother  and  sister:  "Compil.,"  la,  4,  16,  2;  Dig.  X, 
4,  15,  2. 

^  Was  a  mistake  on  the  part  of  one  spouse  necessary?  Controversy: 
Esmein,  I,  240;  Dig.  X,  4,  15,  4. 

2  According  to  the  theory  finally  accepted,  three  kinds  of  impotence  are 
recognized  in  the  case  of  a  man:  (a)  natural  or  accidental  impotence;  (6) 
frigidity  (Sixtus  V,  "Motu  Proprio"  of  1587;  Richter,  "Cone.  Trid.,"  556; 
his  wife  may  remarry;  but  for  him  there  is  a  prohibitive  impediment);  (c) 
hidden  impotence  because  of  some  sorcery  (the  "  malificiatus "  husband  can 
remarry,  for  the  impotence  is  relative);  Hincmar,  "De  Div.  Loth.,"  15  {Migne, 
"Patr.  Lat.,"  125,  716);  "Dec.  Capell.  Tolos.,"  381.  It  was  only  at  the  end 
of  the  fourteenth  century  that  they  began  to  be  concerned  with  the  very  rare 
cases  of  impotence  in  women,  which  were  ordinarily  relative;  Dig.  X,  4,  15,  4, 
6;  Durand,  "Spec,"  P.  IV,  p.  444. 

3  From  this  arose  abuses  and  divorces  in  disguise;  "Decis.  Cap.  Tol.," 
loc.  cit. 

*  At  least,  if  he  is  in  favor  of  upholding  the  marriage;  cf.  Beaumanoir, 
18,  15. 

6  "Cone.  Verberie";  cf.  c.  1,  C,  33,  q.  1;  Dig.  X,  4,  15,  1.  At  the  end  of 
the  twelfth  century  the  Church  condemns  them :  Dig.  X,  5,  35. 

8  Oath  "cum  septima  manu";  c.  2,  C,  33,  q.  1;  Dig.  X,  5,  15,  5;  Esmein, 
II,  p.  285,  n.  4  (still  in  force). 

^  Supra,  laws  of  Justinian:  "Petrus,"  I,  37;  Dec.  d'Yves,  8,  79,  80;  cf. 
Burchard,  "Dec,"  9,  44  (Dig.  X,  4,  15,  1);  Bernard  de  Pavie,  "Summa," 
p.  177.  The  time  of  proof  is  useless  if  the  impotence  can  be  established  by 
means  of  a  direct  examination;  recourse  is  had  to  this  examination  in  cases 
of  sorcery. 

*  Examination  to  establish  the  virginity  of  the  woman:  Dig.  X,  2,  19,  4 
(1187),  4,  15,  6;  fear  of  mistake  (c  4,  C,  27,  q.  1).  To  reciprocate,  the  judges 
ordered  that  the  man  should  be  examined  at  the  time  the  examination  was 
customary  for  the  wife:  cf.  Viollet,  432,  2.  Regulations  of  the  Ecclesiastical 
Judge  of  Cerisy,  54a. 

*  About  1550.    Anne  Robert,  "Rer.  Judicat.,"  4,  18;  A.  Hotman,  "Dissol. 

120 


Topic  4]  CONCERNING   IMPEDniENTS   TO   ilARRIAGE  [§  IIG 

February,  1677,  abolished  this  indecent  procedure.^  Thenceforth 
the  tribunals,  without  any  certain  rule,  prescribed  sometimes  an 
examination,  sometimes  three  years'  cohabitation.^  To-day,  in  case 
this  fault  is  present,  the  canonists  do  not  admit  of  any  nullity,  be- 
cause it  is  impossible  to  prove  that  the  impotence  is  incurable  and 
previous  to  the  marriage.  In  other  cases,  if  it  is  established  that 
the  marriage  has  not  been  consummated,  the  assemblage  of  the 
council  asks  the  pope  to  make  use  of  his  power  in  order  to  dissolve 
the  marriage;  thus  are  avoided  scandalous  and  unreliable  investi- 
gations, and  each  one  of  the  spouses  is  authorized  to  marry  again. 
§  116.  The  Same.  —  (IV)  Impediments  resulting  from  Relation- 
ship.^ 1st.  Natural  relationship.  Starting  with  the  very  general 
text  of  "Leviticus"  viii,  6,  and  exaggerating  the  horrors  of  incest, 
a  sentiment  very  strongly  marked  in  Rome,  the  Church  has  come 
to  consecrate,  or  pretty  nearly  so,  the  old  system  of  exogamy,  or 
prohibition  of  marriage  within  relationship.*  The  influence  of 
Christian  ideas  was  already  felt  in  Roman  legislation  under  the 
Lower  Empire,  by  the  forbidding  of  marriage  between  uncle  and 
niece,^  between  first  cousins,®  between  brother-in-law  and  sister- 
in-law.^     The  severe  tendency  which  these  innovations  display 

du  Mar.  par  I'Impuissance,"  1610  (2d  ed.).  The  innovation  was  introduced 
by  the  ecclesiastical  judges;  from  the  fourteenth  century  a  few  canonists,  such 
as  Jean  d' Andre,  proposed  a  proof  in  the  presence  of  matrons;  although  this 
opinion  did  not  prevail  {Sanchez,  "De  Mat.,"  7,  109,  1.5;  "res.  turpe.s.sima" 
proving  little,  no  text  prescribes  it)  it  was  introduced  into  practice  by  agree- 
ment of  the  parties  (tliis  was  the  suggestion  of  an  impertinent  person,  says 
Hotman,  who  furnished  the  first  example  of  it).  An  order  of  the  Parliament 
of  Jan.  20,  1587,  decreed  this:  Cabassut,  "Theoria  et  Praxis  Juris  Canon.,"  1, 
3,  c,  25,  no.  6;  P.  de  Croos,  "  France  Jud.,"  1878-1879,  392. 

1  '"J.  du  Palais,"  II,  780.  Sharp  criticism  as  early  as  the  sixteenth  century: 
cf.  Fcvret,  "Abus,"  2,  106;  Voltaire,  see  "Diet.  Phil."  The  Marquis  of  Lan- 
geais,  declared  to  be  impotent,  marries  nevertheless  and  has  seven  children: 
Cabassut,  op.  cit.,  1,  3,  c,  25,  no.  4;  F.  de  Lamoignon,  "Plaid,  s.  le  Congres," 
1680;  Isamh.,  19,  174. 

2  "Recueil  des  Pieces  au  Proces  de  Gesvres,  etc.,"  1714;  Pothier,  96;  Es- 
mein,  II,  284;  "Hermaphrodites,"  "Acta  S.  Sedis,"  21,  501. 

'  Richter,  §  275  (bibl.);  Friedherg,  §  146;  Loening,  "G.  d.  d.  Kirchenr.,"  II, 
542;  Freisen,  371;  Esmein,  I,  335;  II,  259;  Pothier,  no.  121;  Launay,  2,  6; 
Luckock,  "Hist,  of  Marr.,"  1894;  Hulh,  "The  Marr.,"  1893. 

^  CJ.  "Numbers,"  xxxvi,  7:  All  Israel  shall  take  a  wife  in  their  tribe  and 
from  among  their  relatives,  "ut  herechtas  permancat  in  familiis."  As  to  the 
old  Roman  law,  see  Cuq,  "Inst.,"  p.  211;  Chaisemartin,  "Prov.,"  p.  298; 
"Heirath  ins  Blut  — Thut  selten  gut." 

B  In  342:  "Cod.  Thcod.,"  3,  12,  1  {cf.  "Marriage  of  Claude"). 

«  "Cod.  Th6od.."  3,  12,  3  (396);  3,  10,  1  (409).  Abrogation  in  Justinian 
law,  "Cod.  Just.,''  5,  4,  19  (405);  "Levit.,"  xviii,  6-18;  xx,  11-21;  "Deu- 
ter.,"  xx-^di,  20-23;  "Can.  Apo.st.,"  19;  St.  Ambroise,  "Ep.,"  60  (although 
permitted  by  Moses,  these  marriages  are  forbidden  "quadara  voce  natura;"); 
August.,  "De  Civ.  Dei,"  15,  16. 

'  During  the  classical  period  a  relationship  in  the  collateral  line  was  not 

121 


§  116]  THE  FAMILY  [Chap.  I 

gained  strength  little  by  little  ^  and  finally  became  exaggerated  in 
the  canon  law  to  such  a  point  that  marriage  was  forbidden  between 
relatives  (anathema  against  whosoever  marries  any  one  "  de  pro- 
pria cognatione")  (eighth  century).^  The  rule  is  thus  understood: 
in  the  direct  line  the  prohibition  extends  to  infinity  (as  in  the 
past) ;  in  the  collateral  line,  also  to  infinity,  in  theory,  and  in  fact 
to  the  seventh  degree,  after  which  the  Roman  law  gives  no  more 
effect  to  the  "cognatio."^  This  is  not  all.  Each  people  calcu- 
lating relationship  in  its  own  way,  and  the  Germans  having  a 
particular  method  of  computation,  the  impediment  was  found  to 
be  extended  out  of  all  proportion  among  them;  their  seventh  de- 
gree was  the  equivalent  of  the  fourteenth  degree  according  to  the 
Roman  laws."*  The  Church  adopted  this  method  of  calculation 
and  extended  it  to  all  the  faithful.  Outside  of  the  reasons  given 
in  the  books  and  of  the  old  repugnance  for  incest,^  the  canonists 

an  obstacle  to  marriage:  "Cod.  TMod.,"  3,  12,  2  (355)  et  seq.;  "Cod.  Just.," 
5,  5,  5  et  seq.:  "Mark,"  vi,  18;  "Cone.  Elvire,"  306,  c.  61;  "Neocesaree,"  314, 
c.  2;  Rome,  384-398,  nephew  and  uncle's  widow;  "Epas,"  517,  id.  Id.,  "dr. 
juif."  1st  "Cone.  Orleans,"  18;  "Burg.,"  36;  "Acta  Sanct.,"  Oct.  5th,  III,  59. 

1  Avitus  of  Vienna  and  the  Council  of  Epao,  517,  c.  30:  prohibition  for  the 
future  of  marriage  between  cousins  who  were  issue  of  persons  of  the  whole 
blood.  Excommunication:  "Orleans,"  538,  10.  —  Resistance:  Greg.  Tours,  4, 
26  and  9;  5,  2-14;  "Dec.  Childeb.,"  596,  c.  2.  (death  for  anybody  who  shall 
marry  his  stepmother;  separation  in  the  case  of  marriages  between  brothers- 
in-law  and  sisters-in-law,  excommunication  and,  if  necessary,  expulsion  from 
the  court,  conferring  of  their  possessions  upon  their  relatives).  Fredeg.,  54;  "  L. 
Sal.,"  13,  2;  cf.  "Inst.,"  c.  3;  "Cod.  Theod.,"  3,  12;  "Alam.,"  39,  1:  relations 
by  marriage,  first  cousins;  separation  by  the  secular  judge  and  confiscation  of 
possessions:  "Bai.,"  7,  1;  "Rib.,"  69,  2;  Sickel,  "Acta  Karol.,"  no.  209. 

2  "Cap.,"  743,  3  {Boret,  I,  28);  and  in  the  Index,  see  "Incestus";  "Cone. 
Tours,"  567,  21. 

3  The  prsetor  calls  to  the  "bonorum  possessio"  children  born  of  cousins 
who  are  the  issue  of  persons  of  the  whole  blood:  Dig.,  38,  10,  10;  38,  8,  1, 
3;  Paid,  "Sent.,"  4,  10,  8;  4,  11,  7  (Int.).  — C/.,  however,  "Nov.,"  118,  3.— 
2d,  "Cone.  Tolede,"  531,  5;  "Wis.,"  4,  1:  6th  degree  only.  Such  is  the  rule  of 
the  Eastern  Church;  cf.  "Wis.,"  3,  5;  12,  2,  6  and  3,  8;  Isid.,  "Etymol.,"  9,  6; 
"Cone.  Rome,"  721,  9;  Agde,  506,  61;  Vermer.,  758-68,  1  (4th  degree) ;  Gre^.  //, 
726  (beyond  the  4th  degree);  Greg.  Ill,  732  (7th  degree);  Jaffe,  nos.  1667, 
1750;  Leo  III,  800  {Jaffe,  nos.  1724,  1912);  Roman  laws,  virtue  of  the  number 
seven.  —  "Compiegne,"  757  (4th  and  3d  degree);  "Mayence,"  813,  c.  54 
(4th  degree);  "Worms,"  868,  c.  78;  "F.  Capit.,"  6,  130,229  (7th  degree): 
"Douzy,"  874;  cf.  "L.  Sal.,"  44;  "Rib.,"  56,  3;  "Bai.,"  14,  9,  4;  "Roth.,"  153; 
Loening,  II,  255;  Stobbe,Y,  282;  Bluhme,  "Abhandl.  f.  Homeyer,"  1871,  p.  11. 

*  Cf.  heresy  of  the  incestuous.  "Ecole  de  Ravenne,"  I;  Gratian,  C,  35, 
q.  5,  c.  2;  Migne,  "Patr.  Lat.,"  145,  19.  From  the  time  of  Gratian  this  method 
of  calculation  was  generally  admitted.  Beaumanoir,  19  (same  results  as  the 
canon  law). 

6  Penalties  for  incest:  "Cod.  Theod.,"  3,  12  and  "Int.  Wis.,"  3,  5;  "Rib.," 
69,  2;  "Burg.,"  36;  "Alam.,"  39,  etc.;  Loening,  I,  560;  II,  547;  Van  Espen, 
III,  4,  48;  Ferriere,  see  "Diet.,"  and  "Inceste  Spirituel";  Boutaric,  1,  10, 
12;  see  Guijot,  and  authors  cited.  The  civil  legislation  punished  "incest"  or 
union  between  relatives  within  the  prohibited  degree  in  a  more  or  less  serious 
manner,  according  to  the  degree  of  relationship  (see  "Encicl.  Ital."). 

122 


Topic  4]  CONCERNING   IMPEDIMENTS   TO   MARRIAGE  [§  HG 

have  justified  these  very  extensive  prohibitions:  (a)  by  physio- 
logical reasons;  from  these  unions,  they  say,  "procreari  solent 
cseci,  claudi,  gibbi  et  lippi";^  (6)  for  moral  reasons;  if  marriage 
were  possible  between  relatives,  it  is  to  be  feared  that  there  would 
be  no  reservation  or  restraint  in  the  life  of  the  family;  (c)  for 
reasons  of  benefit  to  society;  marriage,  says  St.  Augustine,  should 
be  a  school  of  love,  "seminarium  charitatis " ;  it  is  only  between 
strangers  that  it  fulfills  this  higher  object,  relatives  being  already 
attached  to  one  another  by  ties  of  blood.^ 

The  method  of  computing  relationship  employed  by  the  Roman 
law  was  abandoned  as  far  as  marriage  was  concerned  for  ordi- 
nary reckoning,  according  to  which  the  number  of  degrees  or  gen- 
erations between  the  relatives  and  the  common  ancestor  were  sought 
for,  only  taking  into  account  the  farthest  removed  of  them  when 
they  were  of  a  different  degree.^  Thus,  two  first  cousins  separated 
from  each  other  by  four  generations  are  relatives  in  the  fourth 
degree  according  to  the  Roman  computation.  But,  as  they  are 
only  separated  from  the  common  ancestor  by'  two  generations  ac- 
cording to  the  canonic  computation,  they  are  relatives  in  the 
second  degree;  uncle  and  nephew  are  in  the  third  degree  Roman 
and  in  the  second  degree  canonic  ("tot  gradibus  collaterales  dis- 
tant inter  se  quot  uterque  (remotior)  distat  a  stipite  communi").^ 
This  clumsy  procedure  is  related  to  the  Germanic  customs.^  The 
barbarians  represented  generations  by  the  limbs  of  the  upper 
part  of  the  body,  rather  like  children  who  count  on  their  fingers.^ 
The  head  represents  the  spouses;  the  elbow,  the  children;  the 

1  "FauxCapit.,"  7,  179. 

^  A  reason  of  vital  importance  in  the  Middle  Ages.  A  marriage  may  cause 
the  cessation  of  secular  enmities  between  two  families  and  give  to  one  party 
useful  allies  against  another. 

'  "Form,  ad  Roth.,"  153.  Gregory  I  to  Augustine,  towards  the  end  of 
the  sixth  century  or  the  beginning  of  the  seventh  century  (authenticity 
doubtful)  (Jaffe,  no.  1414).  End  of  the  seventh  century;  "Pcenit."  of  Theo- 
dorus,  c.  13;  Gregory  II  to  Boniface,  726  (prohibition  to  the  4th  degree); 
Greg.  Ill,  732  (7th  degree);  Zachariaj,  747  (marriage  is  forbidden  as  far  as 
relationship  can  be  traced);  "Compiegne,"  747,  757  (one  of  the  spouses  is  of 
the  fourth  degree,  the  other  of  the  third);  "Wis.,"  4. 

*  "Actaj  Sa;.  Sedis,"  14,  220  (18S4). 

^  Contra,  Freisen,  436;  according  to  this  author,  this  method  of  calculation 
was  created  by  the  Church:  cf.  "Satilisensp.,"  3;  Thevenin,  "Textes,"  no.  40; 
Laspeyres,-  "Diss.  Canonicaj  Computationis,"  1824;  Siegel,  "Die  German. 
Verwandtschaftsberechmung,"  185.3;  Delbriick,  "Die  Indogerm.  Verwandt- 
schaft-snamen,"  1889;  Stutz,  " Verwandschaf tsbild  d.  Sachsensp.,"  1890; 
Amira,  "Recht,"  p.  156.  Cf.  infra  "Inheritance";  Guynt,  "Degres  dc  Pa- 
rents," in  the  "Tr.  de  la  Repr6s.,"  1779;  Brunner,  "  Anglonorman,  Erbfolge- 
system,"  p.  15. 

6  "Rib.,"  56,  3;  "Roth.,"  153. 

123 


§  116]  THE   F.UIILY  [Chap.  I 

shoulders,  the  grandchildren;  the  neck,  the  great-grandchildren; 
the  wrists  and  the  joints  of  the  fingers,  subsequent  degrees;  the 
nearest  after  these  are  on  the  nail.^  From  the  seventh  degree, 
going  back  to  the  common  ancestor  and  redescending  to  the  seventh 
degree,  one  gets  a  total  of  fourteen  degrees.  Relationship  stops  at 
this  point  and,  consequently,  the  impediments.  But  this  point 
is  so  remote  that  the  relationship  is  often  forgotten,  or  ignored; 
the  spouses  do  not  seek  to  discover  it  unless  they  are  tired  of  the 
marriage,  and  then  if  only  the  judges  are  accommodating,  it  is  not 
a  rare  thing  to  find  them  making  this  discovery.  After  ten  or 
twenty  years  of  life  together  they  separate,  and  public  opinion  is 
not  to  be  deceived;  it  calls  divorce  that  which  the  subtlety  of  the 
jurists  only  classifies  as  nullity.^  The  Church  felt  that  it  had 
gone  too  far;  it  began  by  remedying  the  evil  in  the  granting  of 
frequent  dispensations,  and  then  the  Council  of  Lateran,  1215, 
limited  the  impediment  to  the  fourth  degree  (in  the  collateral 
line)  for  the  peculiar,  outlandish  reason  that  there  are  four  humors 
in  the  body.^  This  was  still  going  too  far,  and  the  practice  of 
dispensations  persisted  as  it  had  done  in  the  past. 

2d.  Civil  relationship  ^  between  relatives  by  adoption  had  the 
same  effect  as  natural  relationship,^  or,  rather,  would  have  had  if 
the  adoption  had  been  practised. 

3d.  Spiritual  relationship  (the  relationship  of  godfather  and 
godmother)  ®  was  the  result  of  baptism;  the  godfather  and  the 
godmother  being  the  same  as  the  spiritual  father  and  mother 
of  the  children  baptized;  marriage  between  them  was  forbidden 
(Justinian).^    The  impediment  was  extended;  in  the  eighth  cen- 

^  "Sachsensp.  Landr.,"  I,  3,  3;  c/.  Gratian,  C,  35,  q.  5,  c.  1  and  2;  Dig. 
X,  4,  14,  7;  Wasserschleben,  "Bussord.,"  p.  45;  Migne,  "Patr.  Lat.,"  140, 
781  {Burchard,  7,  10).    As  to  difficulties,  cf.  Heusler,  593,  600;  Stutz,  op.  cit. 

2  Isambert,  I,  184  (Phillipe-Auguste) ;  III,  309  (Charles  IV);  XI,  313 
(Louis  XII  and  Jeanne  de  France).  Cf.  Gautier,  " CMvalerie,"  353;  "Fors  de 
B^arn,"  267. 

3  Dig.  X,  4,  14,  8;  Galien,  "De  Elem.,"  1,  5;  2,  2;  Beaum.,  18,  7.  As  to 
the  Protestant  law,  cf.  Friedberg,  §  146,  II. 

*  Freisen,  507;  Esmein,  I,  362;  II,  261. 

^  To  a  lesser  extent,  however  (the  person  adopting  or  his  wife,  person 
adopted  or  his  wife),  cf.  C,  30,  q.  3,  c.  15. 

«  Laurin,  "Arch.  F.  Kath.  Kirch.,"  XV,  226. 

7  "Cod.  Just.,"  "De  Nupt.,"  26;  "Cone,"  "in  TruUo,"  c.  53;  "Rome," 
721,  c.  4;  "Compiogne,"  753  (cohabitation  should  cease  if  one  of  the  spouses 
held  a  son  of  the  other  at  the  baptismal  font);  "Mayence,"  813,  c.  55;  "Ca- 
pit.,"  5,  167;  6,  4;  7,  179;  C,  30,  q.  1,  c.  2  and  3  (modifies  the  preceding 
rule).  In  the  thirteenth  century  marriage  is  forbidden  between  the  person 
baptizing  and  the  person  baptized  and  their  relatives;  between  these  persons 
and  the  godparents;  between  godparents  themselves;  between  the  children 
of  the  godparents  and  the  godchild  (annulment  of  the  marriage  of  Charles 

124 


Topic  4]  CONCERNING    ZMPEDEMENTS   TO    MARRIAGE  [§116 

tury  a  godfather  and  godmother  could  neither  marry  each  other 
nor  marry  the  father  or  mother  of  the  godchildren.  Then,  owing 
to  a  reaction  analogous  to  that  which  is  to  be  observed  in  the 
case  of  natural  relationship,  the  effects  of  spiritual  relationship 
were  limited.  According  to  the  French  practice  of  the  monarchic 
period,  the  godfather  is  allowed  to  marry  the  godmother.^ 

4th.  Relationship  by  Marriage^  ("affinitas")  ^  was  estabhshed: 
(a)  by  the  consummation  of  the  marriage,  between  each  spouse 
and  the  relatives  of  the  other,  "^  as  they  had  become  but  one 
flesh,  the  relationship  of  one  was  communicated  to  the  other,  ^ 
and  as  a  consequence  the  prohibition  was  the  same  as  far  as 
it  affected  the  relationship;  after  the  Council  of  Lateran,  1215,  it 
was  hmited  to  the  fourth  degree  in  the  collateral  line;  (6)  as  a 
consequence  of  an  illicit  intercourse  ("delictum  publicum  et  noto- 
rium");  ^  it  was  restricted  to  the  first  and  second  degrees  by  the 
Council  of  Trent  (Sec.  24,  Chap.  4).^ 

5th.   An  impediment  called  one  of  Public  Propriety  ^  resulted : 

(a)  from  betrothals  ^  between  each  engaged  party  and  the  rela- 

the  Handsome  and  Blanche  of  Burgogne);  between  the  surviving  spouses  of 
godparents,  the  person  baptized  and  their  relatives.  The  Council  of  Trent 
s.  24,  c.  2,  limited  this  impediment  as  is  pointed  out  in  the  text:  Viollet,  435; 
Friedherg,  §  148  (Evangelical  Church). 

1  Boularic,  "Inst.,"  1,  10,  60. 

2  "Thes.,"  Oehlrichs,  III,  2;  Freisen,  439;  Esmein,  I,  374;  II,  262;  Fried- 
berg,  §  147. 

3  Jewish  law:  "Leviticus,"  xviii,  6;  Stubbe,  "Ehe  in  Alt.  Testam.,"  60. 
Cf.  as  to  this:  the  levirate  in  Roman  law,  D.,  23,  2,  14,  4;  38,  10,  4,  5;  "Cod. 
Just.,"  5,  4,  17.  —  Christian  influence:  in  355  prohibition  of  marriage  be- 
tween brothers-in-law  and  sisters-in-law;  "Cod.  Theod.,"  3,  12,  2;  5,  5,  5; 
"Ann.  Ec.  Sc.  Pol.,"  1900,  316. 

*  A  conception  which  is  found  in  St.  Augustine  (§  430)  and  which  pre- 
vailed in  the  eighth  century:  C,  35,  q.  32,  c.  15.  Cf.  "Cone,  de  Neoc6- 
sar^e,"  314  c.  2,  prohibition  of  marriage  with  the  brother  of  the  deceased 
husband  (c/.  "Mark,"  vi,  18);  Eliberr. , 305,  c.Ql:  wdth  the  sister  of  the  deceased 
wife;  "Rome,"  402,  11:  with  the  wife  of  the  uncle.  "Dec.  Childeb.,"  596;  C, 
35,  q.  2,  c.  7;  Dig.  X,  4, 14,  8;  cf.  Loysel,  134:  "Morte  mafille,  mortmongendre." 

^  The  canon  law  ended  by  drawing  a  distinction  between,  1st,  the  marriage 
"prirni  generis"  between  each  spouse  and  the  relatives  of  the  other;  2d,  the 
marriage  "secundi  generis"  between  each  spouse  and  the  "affines  prirni  gene- 
ris" of  the  other;  3d,  the  marriage  "tertii  generis"  between  each  spouse  and 
the  "affines  secundi  generis"  of  the  other.  The  impediments  resulting  from 
this  species  of  aflSnity  were  done  away  with  in  1215:  C,  35,  q.  10;  q.  2,  c.  12; 
Pothier,  no.  161;  Durand  de  Maill.,  "Diet.,"  see  "Affinite."  —  EvangeUcal 
Church,  Friedberg,  §  147,  II. 

8  Earliest  traces  in  a  pseudo-Gregorian  letter:  Ainschus,  "Pseudo-Isid," 
749;  Dig.  X,  4,  13,  9;  " Affinitas  Superveniens " ;  Dig.  X,  4,  13,6;  Hormann, 
"  Qua^i-Affinitat,"  1897. 

'  EvangeUcal  Church:  Friedberg,  §  147,  II. 

8  Cf.  Pothier,  no.  224  (marriage  of  a  man  with  the  stepmother  of  his  de- 
ceased wife). 

»  Dig.,  23,  2,  12;  14,  4;  Gratian,  C,  27,  q.  2,  c.  15;  C,  17,  q.  2,  c.  31;  "VI.," 
4,  1;  "Trente,"  s.  24,  c.  3;  "Acta  S.  Sed.,'*^  12,  147. 

125 


§  116]  THE    F.-^MILY  [Chap.  I 

tives  of  the  other,  for  this  would  be  a  marriage  "in  spe"  and 
would  produce  a  "quasi  relationship  by  marriage";  the  Coun- 
cil of  Trent  limited  this  to  the  first  degree  and  made  it 
subordinate  to  the  validity  of  the  betrothals ;  (6)  of  a  marriage 
not  consummated.^ 

The  Law  of  September  20,  1792,  simply  forbade  marriage :  (a)  to 
infinity  between  relatives  or  relations  by  marriage  in  the  direct 
line;  (b)  between  brother  and  sister  in  the  collateral  line.  Every 
other  impediment  resulting  from  relationship  was  done  away 
with. 

§  117.  The  Same.  —  (V)  Incompatibility  of  Marriage  with  Cer- 
tain other  Conditions.  1st.  Existence  of  a  previous  marriage  ^ 
("ligamen").^  Bigamy  is  forbidden,^  and  still  more  so  is  polyg- 
amy.^ 2d.  The  entering  into  higher  religious  orders  (above  and 
including  an  under-deaconship)  is  a  sort  of  marriage.^  3d.  It  is 
the  same  with  regard  to  monastic  vows.^    4th.    Diversity  of  religion 

1  "Cod.  Just.,"  "De  Inc.  Nupt.,"  5,  5,  8;  Dig.  X,  "de  Spons.,"  4.' 

2  Scaduto,  420;  Freisen,  364,  626;  Esmein,  I,  267;  II.,  240;  Cornu,  "These," 
1887. 

3  Polygamy  in  the  Bible:  "Deuter.,"  xxi,  15  et  seq.;  "Paralip.,"  2,  24, 
3.  Cf.  "concubinage."  —  The  idea  of  the  sacrament  and  the  influence  of  the 
Roman  law  have  caused  bigamy  to  disappear:  "Cone,  de  Trente,"  sess.  24, 
c.  2.    Cf.  "Anabaptists,"  "Mormons." 

*  Proof  of  the  death  of  the  absent  spouse:  Dig.  X,  4,  1,  19;  "Acta  S. 
Sedis,"  436.  See  "Certificates  of  the  Civil  Status,"  "Marriage  Capable  of 
Annulment,"  "Second  Marriages." 

6  '-Tr.  de  Polygamia,"  1610  (extract  from  Th.  de  Beze);  Weise,  "Ex.  Bi- 
gamia  per  Dispens.,"  1824;  Koestlin,  "Luther,"  2,  481;  Daphnceus  Arcuarius, 
"De  Polvg.,"  1679;  Aletheus,  "Polyg.  Trumph.,"  1682;  Rady,  "Reform,  in 
B.  Z.  Doppelehe  d.  Landgr.  Philipp.,"  1890;  Luther,  "M6m.,"  2,  60;  "Mer- 
cure  de  Fr.,"  1757,  95;  Grimm,  440. 

^  As  to  ecclesiastical  celibacy,  see  Gratian,  D.,  27,  c.  8;  Freisen,  759, 
763  (impediments  "ordinis  votii"  established  by  way  of  interpretation,  and 
not  by  law).  ParUament  annulled  the  marriages  of  priests  (Order  of  Aug.  22, 
1640j:  cf.  Marnier,  "Etabl.  de  Norm.,"  p.  139.  Rejected  by  the  Protestants, 
ecclesiastical  celibacy  is  attacked  by  the  philosophers  of  the  eighteenth  cen- 
tury: Montesquieu,  "Espr.  des  Lois,"  23,  21;  25,4;  Diderot,  "OEuvres,"  ed. 
.Gamier,  vol.  14,  p.  54;  "Inconv.  du  Celibat.  des  Pretres,"  1781.  The  Abb6  of 
St.  Pierre  considered  it  a  fatal  thing  to  the  State  and  the  Church,  as  it  de- 
prived one  of  well  brought  up  children  and,  as  a  consequence,  of  honest  peo- 
ple, and  the  other  of  good  Christians.  The  Memorials  of  the  States  General 
complained  of  the  scandals  which  resulted  from  this  celibacy  (cases  of  adul- 
tery and  seduction).  After  1789  many  pamphlets  demanded  its  abolition: 
Mauirot,  "Discipl.  de  I'EgUse  s.  le  Mar.  des  Pretres,"  1790.  In  1791  the 
Legislative  Assembly  refused  to  deprive  married  priests  of  their  salary.  From 
that  time  on  many  priests  were  married.  The  Convention  made  various  pro- 
visions in  their  favor:  Duvergier.  V,  107;  VI,  37,  97,  214,  351;  Cerati,  "Du 
Celibat  et  du  Mar.  des  Prfitres,'*  1829;  Plocque,  "Condition  ,Iur.  du  Pritre," 
1887;  Theiner,  "Einfuhr.  d.  Ehelosigk.,"  1898;  Horoy,  "Mar.  du  Pretre," 
1890;  infra.  "Concubinage";  "Capitul.,"  "table,"  see  "Sacerdotes";  "Wis.," 
3,  4,  IS;  Dig.  X,  4,  6;  3,  1,  2,  3.  As  to  the  English  clergy  see  Glasson,  "Inst. 
Anglet.,"  5,  90;  Launn,  "Coelib.  d.  G.,"  1880. 

^  The  Roman  and  Frankish  laws  pronounced  penalties  against  anybody 

126 


Topic  4]  CONCERNING    IMPEDIMENTS   TO    MARRIAGE  [§  117 

("dispar  cultus")  ^  creates  an  impediment  which  recalls  the  old 
impediment  resulting  from  a  difference  in  social  condition.^  The 
Roman  laws  forbid  marriages  between  Christians  and  Jews.^ 
After  the  fourth  century  the  councils  forbid  Christians  to  marry 
with  infidels,  as  the  Old  Testament  had  forbidden  the  Jews  to  do;  ^ 
but  the  nullity  of  such  marriages  was  not  decreed  until  the  middle 
of  the  twelfth  century.^  The  reason  given  was  that  marriage, 
being  a  sacrament,  assumed  that  those  who  contracted  it  had 
been  baptized.^  The  Eastern  Church  even  annulled  marriages 
with  heretics;  ^  in  the  West  heresy  was  looked  upon  as  simply  a 
prohibitive  impediment.^  The  question  was  of  no  importance 
excepting  as  regards  the  Reformation,  and  when  the  Council  of 
Trent  had  required  the  presence  of  the  parish  priest  in  order  to 
make  the  marriage  valid,  the  Church  was  obliged  to  regulate 
mixed  marriages  and  to  give  its  opinion  upon  marriages  con- 

who  married  a  virgin  or  a  widow  who  had  made  a  vow  of  chastity:  "Wis.," 
3,  5,  2;  "Liut.,"  30,  95;  Greg.  Tours,  9,  39.  The  Edict  of  Clotaire,  614,  18, 
annuls  these  marriages.  The  marriage  of  monks  was  forbidden,  under  penalty 
of  annulment,  only  at  a  rather  late  period:  "Cone.  Tours,"  567;  "Trosli.," 
909,  8;  "Latran,"  1123,  c.  21;  Dig.  X,  27,  q.  1,  c.  22;  "Trente,"  sess.  24,  c. 
9;  Pothier,  no.  112:  simple  vows  do  not  annul  the  marriage;  it  is  only  solemn 
vows  that  have  this  effect,  and  on  this  point  it  is  less  the  vows  themselves 
than  the  religious  professions  to  which  these  effects  are  attached:  C,  1, 
"  in  VI,"  3,  15.  French  jurisprudence  does  not  admit  of  any  tacit  profession. 
"The  coat  does  not  make  the  monk." 

1  Wiesehnhn,  "De  Imped.  Disp.  Cultus,"  1865;  Freisen,  635;  Esmein,  I, 
216;  II,  267;  Friedberg,  §  150  (bibl.). 

2  And  which  makes  the  "consortium  omnis  vitse"  difficult.  The  Church 
sees  therein  a  special  danger  to  the  faith.    • 

'  "Cod.  Theod.,"  "De  Jud.,"  6  (Death);  C,  28,  q.  1,  c.  17  and  10; 
Beaum.,  loc.  cit.;  "Cod.  Just.,"  1,  9,  6.  The  EvangeHcal  Church  condemns 
them  with  Melanchthon,  contrary  to  Luther:  Strampff,  283;  Sarcerius,  "V. 
Ehestande,"  1556  (82,  5);  "Orleans,"  II,  19  (Bruns,  187).  etc. 

*  Disfavor:  Paul,  2.  "Cor.,"  vi,  14;  1.  "Cor.,"  vii,  12;  St.  Augustine, 
"De  Fide,"  19;  Tertull.,  2  "Ad  Ux.,"  2-8.  St.  Augustine  tolerates  them 
(Monica  converts  Patricia):  Amhros,  "De  Abraham,"  I,  9;  "Cone.  Arvern.," 
535;  Loening,  II,  565. 

*  P.  Lombard,  4,  D.,  39,  a;  Gratian,  C,  38,  q.  1.  c.  14;  Bernard  de  Pavie 
("imped,  dispar  cultus");  Benott  XIV,  "BuUe  Singul.  Nobis"  custom. 

*  The  marriage  of  infidels  (with  one  another)  not  being  a  sacrament,  is  not 
absolutely  indissoluble;  divorce  is  possible  ("casus  apostoH,  privelegium 
Pauhnum";  Paul,  "1  Cor.,"  vii,  12,  who  only  gave  advice  in  referring  to 
the  civil  law  of  his  period);  C,  28,  q.  1,  c.  4;  Dig.  X,  4,  19,  7;  3,  22,  6; 
3,  33,  1 ;  a  spouse,  upon  being  converted,  can  repudiate  the  other  spouse  when 
the  latter  does  not  wish  to  continue  to  live  in  common  or  renders  it  insup- 
portable because  of  religion  ("contumelia  Creatoris,"  a  sort  of  adultery), 
Benott  XIV,  Feb.  9,  1949  (India);  Esmein,  II,  270;  Desessarts,  "Dissert.," 
1763,  1765;  Guyot,  see  "Mar."  (converted  Jew). 

^  But  not  with  schismatics:  "Cone,"  "In  Trullo,"  692,  c.  72.  In  this  sense 
Bernard  de  Pavie,  "Summa  de  Matr.,"  p.  291;  Tancred,  id.,  vol.  24. 

8  Durand,  "Spec,"  4,  3,  2.  Baptism  is  sufficient,  even  if  it  is  performed 
by  a  heretic,  for  one  to  be  a  Christian:  St.  Thomas,  "Comm.  in  IV  1.  Sent.," 
d.  39,  q.  1,  Art.  1;  Agde,  in  506,  c.  67. 

127 


§  117]  THE   FAJVIILY  [Chap.  I 

tracted  by  heretics  among  themselves.^  In  1680  an  Edict  of 
Louis  XIV  decreed  the  nulhty  of  marriage  between  Cathohcs  and 
Protestants;  it  was  in  the  same  spirit  as  that  of  the  canon  law 
since  the  Reformation;  the  Catholic  Church  only  allowed  such 
marriages  by  means  of  a  dispensation  of  the  Pope,  and  upon  con- 
dition that  the  heretic  forswore  his  beliefs  before  the  celebration 
of  the  marriage  in  the  presence  of  the  Catholic  priest.^  Only  in 
cases  where  it  did  not  have  sufficient  power  did  the  Church  re- 
sign itself  not  to  demand  the  forswearing  and  to  the  taking  of 
precautions  with  the  object  of  avoiding  the  conversion  of  the 
spouse  who  was  a  Catholic^  ("impedimentum  mixtse  religionis"). 
It  is  this  "modus  vivendi"  which  is  still  the  foundation  of  ecclesi- 
astical discipline.  5th.  Impediinents  to  marriage  between  the 
spouse  guilty  of  adultery  ^  and  his  accomplice  ^  (if  they  have 
promised  to  marry  each  other).  6th.  Between  one  of  the  spouses 
and  the  murderer  of  the  other. 

§  118.    The    Same.  —  (VI)  Prohibitive   Impediments.      1st.   Be- 

•  BenoU  XIV,  "Declaration,"  Nov.  14,  1741:  validity  of  the  marriages 
of  heretics  in  the  Netherlands.  Extension  to  the  majority  of  the  Protestant 
countries;  wherever  the  Council  of  Trent  was  not  made  public  the  old  law 
subsisted  (England);  it  was  the  same  thing  wherever  it  was  practically  im- 
possible to  conform  to  it:  Friedberg,  §  150,  no.  25. 

2  Benoit  XIV,  "Encycl.  p.  la.  Pologne,"  1748;  Richter,  "Cone.  Trid.,"  5.59. 

'  (A)  Dispensation  granted  by  the  bishop  without  any  abjuration:  {Be- 
noU XIV,  1750;  Jacobson,  "Ueb.  Gem.  Ehen,"  1838);  the  forms  of  the  Coun- 
cil of  Trent  are  not  necessary  {BenoU  XIV,  1741);  they  simply  demand  a 
promise  that  all  the  children  shall  be  brought  up  in  the  Catholic  reUgion 
{Pius  VI,  1782),  or  they  are  even  contented  with  a  division  (Silesia).  At  the 
end  of  the  eighteenth  century  this  impediment  is  abolished  in  effect  in  certain 
dioceses  (Mayence,  etc.).  —  (B)  More  severe  tendencies  in  the  nineteenth 
century.  A  written  declaration  under  oath  by  which  the  heretic  pledges 
himself  in  the  presence  of  two  witnesses  to  allow  his  spouse  freely  to  prac- 
tice her  religion;  the  Catholic  promises  to  do  everything  in  Ms  power  to  con- 
vert his  spouse.  Both  spouses  pledge  themselves  to  bring  up  the  children  in 
the  CathoUc  ReUgion.  (Nevertheless,  they  decided  that  the  boys  should  be 
brought  up  in  the  reUgion  of  the  father  and  the  girls  in  the  reUgion  of  the 
mother.)  The  spouses  also  promised  not  to  present  themselves  before  heretic 
ministers  in  order  to  have  their  union  blessed.  The  CathoUc  parish  priest 
must  not  bless  the  spouses;  he  takes  part  as  a  witness  outside  of  the  church 
when  the  exchange  of  consent  is  given  ("assistentia  passiva").  The  Holy 
See  can  dispense  with 'these  conditions:  "Acta.  S.  Sed.,"  16,  207.  —  Measures 
of  retaliation  in  Germany:  Friedberg,  "Ev.  Verfassungsr.,"  279,  282. 

*  Schultz,  "De  Adult.  Matr.  Imped.,"  1857;  Freisen,  615;  Esmein,  I,  384, 
398. 

^  Originally  a  perpetual  penance  and  a  prohibition  of  any  future  marriage: 
Frank,  "Bussdisciplin.,"  670;  Loening,  II,  567;  Reginon,  2,  235.  Following 
this  temporary  penance:  C,  31,  q.  1,  c.  5;  "Capit.  Compend.,"  757,  c.  11; 
"Cone.  Tribur,"  895,  40.  Estimation  of  the  bishop.  The  impediment  does 
not  become  an  invaUdating  one  excepting  in  Gratian  and  Dig.  X,  4,  7,  6;  4, 
7,  1;  "Summa  Rolandi,"  p.  155;  "Ord.  de  Geneve,"  1541  {Richter,  Kirchen- 
ordn.,"  I,  349).    CJ.  Strampff,  "Luther,"  p.  279;  Bohmert,  op.  cit. 

128 


Topic  4]  CONCERNING   IMPEDIMENTS  TO   MARRIAGE  [§119 

trothals;  there  is  an  impediment  between  one  of  the  betrothed 
and  every  person  other  than  the  other  betrothed.  2d.  An  Ordi- 
nary vow.  3d.  Public  penance.  4th.  Heinous  crime:  murder  of 
a  spouse,  of  a  husband  by  his  wife  or  vice  versa,  marriage  with  a 
nun.  5th.  "Tempus  feriarum":  from  Ash  Wednesday  to  Easter 
Week;  ^  during  the  three  weeks  which  precede  the  Feast  of  Saint 
John  the  Baptist ;  from  Advent  to  Epiphany.  6th.  "  Interdictum 
Ecclesise"  or  prohibition  by  the  ecclesiastical  judge  of  contract- 
ing marriage  until  the  proliibition  shall  be  removed,  because  it  is 
to  be  feared  that  there  is  an  impediment.^    7th.  Heresy. 

§  119.  Preventing  a  Marriage.^  —  (I)  Evangelical  Denunciation.'^ 
In  order  to  assure  respect  for  these  numerous  impediments,  the 
Church  created  denunciations.  When  publishing  the  banns  of  the 
marriage  the  priest  declares  that  it  is  the  duty  of  every  one  of 
the  faithful  to  make  known  any  impediments  which  may  exist. 
The  parish  priest  who  is  notified  of  the  existence  of  some  impedi- 
ment should  put  off  the  celebration  of  the  contemplated  union 
until  such  time  as  the  ecclesiastical  judge  shall  have  permitted  it 
to  take  place;  the  latter  sends  forth  an  interdict  of  the  marriage 
as  soon  as  he  has  received  this  notice.  (II)  Injunction  (fourteenth, 
fifteenth  centuries).^  This  method,  a  result  of  practice,  differs 
from  the  preceding  ^  in  that  the  person  offering  opposition  is  a 
party  to  the  proceedings  with  regard  to  the  possibility  of  the  mar- 
riage (costs).  The  right  of  claiming  injunction  belonged,  perhaps, 
first  of  all,  to  the  betrothed  who  claimed  performance  of  a  prior 

*  Council  of  Laodicea,  368.  "Trente,"  s.  24,  c.  10.  Certain  dioceses  have 
special  customs,  —  for  example,  it  is  forbidden  to  celebrate  marriages  at 
night. 

2  Excommunication  did  not  allow  of  the  receiving  of  any  sacrament;  as  a 
consequence,  people  who  were  excommunicated  could  not  receive  the  nuptial 
benediction  before  being  absolved.  Now,  actors  were  regarded  as  disgraced 
and  excommunicated  (Council  of  Aries,  314,  c.  5).  It  was  for  this  reason 
that  the  parish  priest  of  Saint-Sulpice  refused  to  marry  Talma.  The  letter 
addressed  by  the  latter  to  the  Constituent  Assembly  and  read  at  the  meeting 
of  July  12,  1790,  was  the  starting  point  of  reforms  with  regard  to  marriage. 
In  the  same  category  of  ideas  let  us  recall  those  verses  of  Boileau  attesting 
that  they  were  refused  religious  burial: 

"Avant  qu'un  peu  de  terre  obtenu  par  pri^re 
Pour  jamais  sous  la  tombe  eut  enfermc  Moh6re." 

Guyot,  see  "Com^dien." 

*  Pothier,  no.  82.    See  Durand  de  Maillane,  Esmein,  I,  421. 

*  "Matthew,"  xviii,  15;  Durand,  "Sp(?c.,"  3, 1, 14.  Verbal  declaration  with- 
out any  forms:  Fournier,  "Officialit<5s,    256. 

*  Register  of  the  Ecclesiastical  Judge  of  Cerisy,  "Oppositio"  or  "impe- 
tito"  (506,  58,  etc.). 

*  "Confer,  de  Paris,"  I,  269;  see  Guyot,  Ferrihe,  Descombes,  "Recueil,"  2. 

129 


§  119]  THE    FAMILY  [Chap.  I 

promise  of  marriage;  finally,  it  was  granted  to  whoever  was  in- 
terested in  preventing  the  marriage  from  taking  place,  and  those 
who  called  themselves  engaged  or  married  were  considered  as 
such,  as  were  parents  with  respect  to  the  marriage  of  their  chil- 
dren, guardians  or  trustees  with  respect  to  that  of  their  minor 
wards.  Injunction  was  by  means  of  a  writing,  signed  by  the 
person  offering  opposition,  and  of  which  the  parish  priest  was 
notified  by  the  bailiff.  However  little  foundation  it  seemed  to 
have,  although  it  might  be  without  object,  it  prevented  the  parish 
priest  from  proceeding  with  the  celebration  of  the  marriage  until 
withdrawal  granted  by  the  party  or  by  the  judge.^  It  was  exceed- 
ingly inconvenient,  because  unjustified  difficulties  and  delays  pre- 
vented a  great  number  of  marriages  from  taking  place.^  It  was 
not  enough  to  punish  vexatious  oppositions  with  penances,  as  did 
the  canon  law,  with  damages,  as  did  the  parliaments.  Following 
the  regulating  Order  of  April  28,  1778,  the  Law  of  September  20, 
1792,  IV,  3,  was  obliged  to  remedy  the  evil  by  limiting  to  a  very 
small  number  of  persons  the  right  of  claiming  injunction  (father, 
mother,  etc.)  and  in  compelling  the  judges  to  decide  upon  the  ques- 
tion with  little  delay. 

§  120.  Dispensations.^  —  From  these  all  too  numerous  and  un- 
justifiable impediments  the  Church  found  itself  obliged  to  grant 
dispensations;  so  that  certain  of  them,  although  qualified  as  in- 
validating impediments,  could  be  removed;  it  was  in  their  case 
a  forerunner  of  abolition. 

In  olden  times  there  were  no  dispensations,  properly  speaking; 
the  Church  only  exercising  a  disciplinary  power  over  marriage, 
it  was  for  the  ecclesiastical  judge  to  uphold  or  to  dissolve  mar- 
riages according  to  circumstances.  But,  whilst  the  canon  law  con- 
stituted true  legislation  as  far  as  matrimony  was  concerned,  the 
"  dispensatio "  seemed  like  a  prerogative  belonging  exclusively  to 

1  Order  of  June  15,  1691:  register  of  opposition  and  withdrawals  to  be 
kept  by  the  parish  priests.  Penalties  against  the  parish  priest  who  celebrated 
a  marriage  in  the  face  of  opposition :  Suspension  for  three  years  pronounced  by 
the  ecclesiastical  judge,  condemnation  to  pay  damages  by  the  secular  judge. 

2  Isamb.,  XXIV,  388.  Opposition  based  upon  a  civil  interest  or  a  verbal 
promise  of  marriage  could  not  be  received  (1777).  Complaints  of  the  clergy, 
1760. 

3  Richfer,  §  280  (bibl.);  Friedberg,  §  151;  Kreslinger,  "Dispens.,"  1710;  De 
Juslis,  "De  Disp.  Matr.,"  1739;  Giovine,  id.,  1863;  Du  Perray,  "Tr.  des  Disp. 
deM.,"  1719;  Collet,  "Tr.  des  Disp.,"  1777.  Taxes  in  Horry,  "Mar.  Chretien 
in  F.,"  (1700);  Durand  de  Maillane,  see  "Diet,  de  Dr.  Canon,"  Pothier,  no. 
252;  Maultrot,  "Examen  des  Princ.  s.  les  D.,"  (1789);  Caillaud,  "Man.  des 
Dispenses,"  1873;  Frcisen,  891;  Esmein,  II,  315;  Pompen,  "Tract,  de  Disp.," 
1896;  Brandhuber,  "Disp.,"  1888. 

130 


Topic  4]  CONCERNING   IMPEDIMENTS   TO   MARRIAGE  [§120 

the  legislator.  In  the  twelfth  century,  at  least,  the  general  power 
of  granting  dispensations  was  reserved  to  the  pope,^  and  very 
exact  rules  determined  conditions  under  which  they  were  applica- 
ble. Whilst  the  State  disputed  the  right  of  the  Church  to  legis- 
late on  the  question  of  marriage,  it  did  not  fail  to  claim  for 
itself  the  right  of  "  dispensatio  "  for  the  impediments  which  it  had 
itself  created.^ 

It  is  admitted  that  the  impediments  of  natural  or  divine  law  do 
not  allow  of  any  dispensations;^  only  the  impediments  of  human 
law  could  be  removed  "*  by  the  Church  ^  (or  by  the  State).  For  ex- 
ample: dispensations  for  marriages  between  uncles  and  nieces, 
first  cousins,  brothers-in-law  and  sisters-in-law,^  spiritual  relations, 
etc.  The  Council  of  Trent  decreed  that  they  should  only  be 
granted  on  rare  occasions  for  just  cause,  and  that  nothing  should 
be  demanded  in  return  for  them  (Sec.  24,  5).  Neither  on  the  first 
nor  on  the  second  of  these  points  were  its  limitations  observed.^ 
As  to  just  causes,  they  were  multiplied  to  excess  ("angustia  loci," 
insufficiency  of  the  marriage  portion,  widowhood  w4th  children, 
the  age  of  twenty-five  years  for  girls,  the  presence  of  secret  here- 
tics, a  means  of  terminating  an  important  lawsuit,  the  preserva- 
tion of  the  property  of  an  illustrious  family).^  The  procedure 
consists  in  addressing  a  petition  to  the  pope;  it  is  presented  at 

'  The  bishops  have  it  only  as  an  exception.  —  Marriage  of  King  Robert 
with  his  cousin  Bertha;  Pope  Sylvestre  II. excommunicated  the  parties  and 
the  bishops  who  had  granted  the  dispensations:  Stiegler,  "Arch.  f.  K.  K.," 
1897;  "R.  G.  H.,"  1898,  57. 

^  Cf.  Rescript  of  the  Prince  at  Rome  (marriage  between  first  cousins): 
"Cod.  Th^od./'  "si  nupt.,"  1.     Ex.:  "Edit."  1680. 

3  Insanity,  impuberty,  impotence,  "ligamen,"  religious  profession;  rela- 
tionship in  the  direct  line  between  brothers;  affinity  to  the  first  degree;  adul- 
tery accompanied  by  murder;  abduction;  "dispar  cultus." 

■»  Variation.  From  the  time  of  the  Council  of  Trent  dispensations  for 
marriages  between  first  cousins.  Uncle  and  niece:  Philip  II  took  as  his 
fourth  wife  Anne  of  Austria,  who  was  his  brother's  daughter. 

^  The  dispensation  is  given  sometimes  "in  contrahendis  matrim.,"  and 
sometimes  "in  contractis";  in  the  latter  case  it  can  compel  a  remarriage 
(rehabilitation)  or  else  it  validates  the  marriage  retroactively  ("Dispensatio  in 
radice  matrimonii";  reserved  to  the  pope).  Writ  of  the  Penitentiary's  Court; 
it  is  granted  first  of  all  in  order  to  legitimize  the  children,  and  later  in  the 
interest  of  the  spouses  themselves, — for  example,  "sanatio  in  radice"  of 
civil  marriages  contracted  in  France  during  the  Revolution. 

8  Rare  in  the  Middle  Ages,  granted  to  princes  for  reasons  of  State  (for 
example,  for  the  pacifying  of  the  Empire,  Otto  IV  marries  the  daughter  of 
his  competitor,  PhiUp,  although  she  was  his  near  relative);  extended  later 
on  to  mere  citizens. 

^  Dispensations  "in  forma  pauperum,"  if  the  parties  are  unable  to  pay  the 
customary  tax. 

*  Dispensations  sometimes  without  a  cause:  the  good  use  made  of  the 
sums  given  to  obtain  them,  they  say,  is  one  cause  for  their  being  granted. 

131 


§  120]  THE    FAMILY  [Chap.  I 

the  Dataria,  which  issues  the  dispensations  in  the  form  of  a  com- 
mission; the  official  appointed  verifies  the  facts  to  which  their 
granting  is  subordinate  and  pronounces  the  dispensation.^  INIod- 
ern  law  has  shown  itself  very. stingy  in  this  matter;^  this  was 
bound  to  be  so  from  the  moment  when  only  the  most  necessary 
impediments  were  upheld. 

§  121.  Ntillity  of  Marriage.^  —  In  the  case  of  the  violation  of  an 
impediment,  an  action  of  an  especially  disciplinary  or  penal  char- 
acter, "  accusatio,"  was  open,  first  of  all,  to  everybody  ("cuivis  ex 
populo")  ^  against  the  spouses  who  had  not  conformed  to  the 
laws  of  the  Church.  The  ecclesiastical  judges  dissolved  the  mar- 
riage every  time  that  the  impediment  was  sufficiently  serious 
(invalidating),  and  let  it  subsist,  excepting  for  the  infliction  of  pen- 
ances on  the  spouses,  when  it  w^as  of  no  importance.  It  was  too 
easy  to  abuse  these  accusations  for  the  right  of  making  them  not  to 
be  restrained  in  many  cases.^  Thus,  when  to  insist  upon  carrying 
out  the  marriage  would  not  cause  the  spouses  to  sin,  it  is  to 
them  alone  that  the  action  w^as  given  (impotence,  impuberty,  de- 
fect or  even  absence  of  consent);  it  depended  upon  them  whether 
the  marriage  should  be  "allowed  to  subsist.^  On  the  other  hand, 
the  principle  persisted,^  but  only  the  relatives  were  allowed  to 
take  action  ("personee  proximae  et  necessariae");  ^  it  is  only 
when  the  latter  are  lacking  that  the  action  is  granted  to  the 
"vicini  bonae  famse,"  and,  if  there  are  no  neighbors,  then  to 
strangers.^  In  case  of  "diffamatio"  or  public  rumor,  the  judge 
may  of  his  own  accord  pronounce  the  nullity,  provided  that  the 
right  of  pleading  should  not  be  reserved  to  the  spouses  alone.  ^° 

^  Sentence  of  the  ecclesiastical  judge  after  an  investigation  and  communi- 
cation with  the  datary. 

2  C/.  "Evangelical  Church."    Friedberg,  §  152,  II. 

3  Pothier,  no.  442;  Richter,  205;  Walter,  316;  Freidberg,  §  152  (bibl.); 
Fischer,  "  Ungultigkeit  d.  Ehe,"  ("  Jahrb.  f.Dogm.,"  1889,253);  "Siete  Part.," 
IV,  9;  Esmein,  1,  403;  II,  290;  Stobbe,2i9;  Strykius,  "Be  Matr.  Null.,"  1739. 

*  Cf.  Roman  procedure  dealing  with  accusations:  Beaurepaire,  "Null,  de 
M.  en  1553,"  1883. 

fi  One  can  be  at  the  same  time  accuser  and  witness,  contrary  to  principle, 
an  exception  which  can  be  understood  as  applying  to  relatives  on  questions 
of  relationship,  and  which  was  extended  to  every  action  for  annulment. 

^  The  canon  law  does  not  admit  of  any  relative  nullity  under  pretext  that 
marriage  cannot  be  a  lame  contract.  Thus  the  action  can  be  brought  by 
either  spouse.    French  jurisprudence  is  contrary  to  this:    Pothier,  no.  444. 

7  Lancelot,  "Inst.,"  2,  15. 

8  "Cod.  Th^od.,'*  9,  7,  2;  "Cod.  Just.,"  9,  9,  30  (adultery).  Restriction 
again  in  certain  cases:  Dig.  X,  4,  18,  5  and  6.  As  to  collaterals:  Pothier,  no. 
448. 

9  Durand,  "Spec,"  4,  4. 

"  Dig.  X,  4,  18,  2  and  6;  4,  11,  7. 

132 


Topic  4]  CONCERNING   IMPEDBIENTS   TO   MARRIAGE  [§121 

In  the  fourteenth  century  the  prosecutor  of  the  ecclesiastical 
judges  carried  on  the  examination  and  brought  the  action  of  anul- 
ment.  In  this  way  absolute  nullities  came  to  be  distinguished 
from  relative  nullities;  although  invalidating  impediments  had 
the  same  effects,  they  were  not  found  to  be  placed  under  the  same 
category.  The  jurisprudence  of  the  parliaments  contrasted  ab- 
solute defects,  of  a  public  nature,^  which  every  interested  party  ^ 
and  the  public  minister  himself  ^  had  the  right  to  plead,  with  rela- 
tive defects,^  which  did  not  have  any  effect  upon  public  order,  and 
which  only  gave  the  right  of  action  to  certain  interested  parties,^ 
such  as  the  spouses,  or,  rather,  one  of  them,  their  fathers  and 
mothers,  if  the  marriage  was  contracted  without  their  consent, 
and  to  their  guardians  in  analogous  cases. 

The  actions  for  the  annulment  of  marriage  had,  moreover, 
their  own  special  rules.  The  canon  law  declared  that  the  right 
to  these  actions  could  not  be  lost  by  expiration  of  time.^  Before 
the  Courts  of  the  Church  their  procedure  was  simple  and  sum- 
mary.^ The  testimony  of  relatives  was  admissible,  but  admis- 
sions and  acquiescence  were  not  allowed  for  fear  of  a  fraudulent 
understanding.^ 

The  ecclesiastical  judges  were  competent  when  the  annulment 
of  the  marriage  was  the  direct  object  of  the  prosecution;  ^  if  dam- 

1  Invalidating  impediments  and  defects  of  essential  form:  lack  of  publicity 
and  jurisdiction  of  the  priest  and  absence  of  watnessos. 

2  Interest  which  exists  at  the  time  or  which  afterwards  comes  into  ex- 
istence. 

'  Public  scandal:  the  procurator  of  the  king  or  the  fiscal  procurator  act, 
and,  if  they  do  not  act,  then  the  datary.    Declaration  of  June  15,  1697. 

''  They  covered  themselves  by  means  of  a  ratification:  Jul.,  "Elem.  de 
Jur.,"  p.  22. 

5  For  example,  the  spouse  who  has  undergone  the  violence  is  the  only  one 
allowed  to  attack  the  marriage.  In  the  same  way,  it  is  only  the  spouse  of 
the  impotent  party  who  can  make  complaint,  and  this  defect  is  done  away 
with  by  long  cohaiaitation.  —  Collaterals  were  able  (but  only  with  difficulty) 
to  attack  a  marriage  affected  by  an  absolute  d(>f(!ct  after  the  death  of  the 
spouse  when  they  had  an  interest  in  its  annulment  (for  example,  to  put  out- 
side of  the  inheritance  children  born  of  the  marriage). 

«  Innocent  III  in  promulgating  the  decisions  of  the  Council  of  Lateran, 
121.5,  as  to  relationship,  declares  that  the  action  cannot  be  lost  by  prescrip- 
tion in  such  a  case  as  this.  The  "Close"  generalizes.  Judgment  in  matri- 
monial actions  has  never  the  force  of  "res  adjudicata"  (endangering  of 
souls),  Pothier,  no.  461;  Diiperray,  "Dispenses,"  1769,  p.  320;  Guyol,  "Rep.," 
see  "Impuissance."  Prohibition  of  comi)ounding  and  compromising  in  the 
matrimonial  actions.    Each  party  on  appeal  may  suggest  new  reasons. 

^  The  oath  of  calumny  is  not  demanded  (si)iritual  causes). 

8  Dig.  X,  4,  1.3,  5;  4,  18,  3;  2,  27,  10;  Gralinn,  C,  3.5,  q.  6,  c.  3;  Beaiim., 
18,  16;  "Defensor  Matrimonii"  created  in  1741  by  the  Constituent  Assembly; 
"Dei  Mifeerationo"  of  BenoU  XIV. 

9  Edict  of  Dec,  1606,  12;  1695,  34;  Bardet,  II,  5,  22. 

133 


§  121]  THE    FAJVIILY  [Chap.  I 

ages  were  sought  by  reason  of  the  annulment,  it  was  necessary  to 
apply  to  the  civil  judge;  ^  also,  the  civil  judge  alone  was  the  one 
to  determine  whether  the  marriage  had  been  celebrated  or  not 
(possessory  action) ;  finally,  as  soon  as  the  ordinances  or  the  liber- 
ties of  the  Galilean  Church  had  been  violated,  recourse  was  had  to 
the  parliaments  by  means  of  an  appeal  as  for  error.^ 

Certain  marriages,  without  being  annulled,  were  deprived  of 
their  civil  effects  (for  example,  the  children  could  not  inherit); 
secret  marriages,^  marriages  "in  extremis;  "  ^  and  those  of  persons 
civilly  dead.^ 

§  122.  Rehabilitation  and  Repudiated  Marriage.  —  Marriages 
which  had  been  annulled  were  looked  upon  as  having  had  no  ex- 
istence. The  ecclesiastical  judges  for  a  long  time  commanded  the 
spouses  to  re-establish  their  union,  so  long  as  there  was  no  possi- 
bility of  obtaining  dispensations  or  of  the  impediment  having 
disappeared;  by  this  was  understood  a  new  celebration  of  the  mar- 
riage, which  this  time  was  regular.^  But  the  parliaments  put  an 
end  to  this  abusive  practice;  ^  the  spouses  could  re-establish  their 
marriage,  but  they  were  no  longer  compelled  to  do  so.  When  re- 
pudiation was  not  possible,  the  spouses  who  had  acted  in  good 
faith  were  first  of  all  likened  to  spouses  who  had  acted  in  bad  faith ; 
their  marriage  was  of  no  more  effect;  thus,  the  children  were  looked 
upon  as  illegitimate,^  a  crying  injustice  from  the  moment  when 
all  too  numerous  and  scarcely  known  impediments  degenerated  into 
a  snare  for  the  best  intentioned.  At  an  early  period  (from  the 
time  of  Peter  Lombard),  the  Church  found  itself  compelled  to 
admit  ^  that,  although  annulled,  the  marriage  would  have  the  ef- 

'  Collaterals  who  only  have  a  right  to  damages. 

2  Only  way  open  to  the  father,  mother,  or  guardian  who  has  not  given 
consent  to  the  marriage. 

3  Decl.,  Nov.  26,  1639,  Arts.  5,  6  (cf.  Civ.  Cod.,  25).  The  Declaration 
seems  to  confuse  secret  marriages  and  hidden  marriages.  But  the  canon  law 
distinguishes  between  them.  The  former  are  regular,  but  are  not  necessarily 
public.  J'hey  are  entered  in  a  register  under  seal  which  is  distinct  from  the 
regular  register:  (Benoit  XIV,  1741);  Mazzei,  "De  Matrim.  Conscientiae," 
1766;  Hertz,  id.,  1702. 

«  Boutaric,  "Inst.,"  1,  10,  13;  Poullain  du  Pare,  "Principes,"  I,  121. 

s  Boutaric,  "Inst.,"  1,  10,  10  and  13. 

«  Hertz,  "De  Matr.  Instaurato,"  1702.    Cf.  supra,  "Dispensation." 

7  "Arr.,"  March  11,  1710;  cf.  Decl.,  June  15,  1697. 

*  Oriental  Church:  "Petrus,"  I,  39  (they  succeed  if  they  have  been  in 
possession  of  the  status  for  30  years).  Gratian  does  not  recognize  reputed 
marriages;  D.,  35,  q.  7. 

9  No  law  was  enacted,  but  practice  admitted  this  restraint  on  the  indefinite 
increase  of  causes  of  annulment,  and  it  seems  that  one  must  give  credit  for  it 
to  the  Gallican  Church:  P.  Lombard,  "Sent.,"  1,  4;  D.,  41,  c.  Dig.  X,  4,  17,2; 
4,  3,  3;  4,  7,  8-14.    Cf.  Rescript  of  Marcus  AureUus,  D.,  23,  2,  57,  1;  "Cod. 

134 


Topic  4]  CONCERNING   IMPEDIMENTS   TO   MARRIAGE  [§  122 

feet  of  a  valid  marriage  dissolved  by  death,  provided  that  the 
spouses,  or  at  least  one  of  them,  had  acted  in  good  faith,  and  that 
there  had  been  a  celebration  "in  facie  Ecclesiae";^  from  1215  the 
banns  were  also  required  to  have  been  published.  These  effects 
were  at  first  merely  due  to  the  interests  of  the  children  (illegiti- 
macy) ;  ^  later,^  to  those  of  the  spouses  who  had  acted  in  good 
faith  (upholding  of  dower,  etc.). 

Just.,"  .5,  5,  4;  Hertz,  "De  Matr.  Put.,"  1690;  "Sachsensp.,"  3,  27;  Braclon, 
fo.  63;  Glanville,  7,  12. 

1  Cf.  Viollet,  p.  439;  Stohhe,  249. 

2  No  legitimation  for  children  born  before  the  marriage :  Pothier,  437. 

3  Parnormit.,  Dig.  X,  IV,  20,  2. 


135 


§  123]  THE    FAMILY  [Chap.  I 


Topic  5.     Effects  of  Marriage 

§  123.  The  Legal  Consequences.  I  §§  125,  126.  The  Same:  Penalties. 

§  124.  Adultery.  | 

§  123.  The  Legal  Consequences  of  marriage  could  be  summed 
up  formerly  in  the  acquisition  of  the  husband's  power  over  the 
wife,  which  bears  at  the  same  time  on  the  person  and  on  the 
possessions  of  the  wife,  and  in  the  acquisition  of  the  paternal 
power.  But  this  simple  formula  did  not  agree  very  well  with  more 
modern  law.  The  power  of  the  husband  becomes  less.  Whereas 
in  the  primitive  law  the  husband  had  scarcely  anything  but  rights 
and  the  woman  scarcely  anything  but  duties,  it  now  becomes  a 
question  of  the  rights  and  the  duties  of  each  one  of  the  spouses. 
Thus,  the  canon  law  being  based  on  a  saying  of  St.  Paul,  bestows 
upon  the  wife  as  well  as  the  husband  the  right  to  demand  con- 
jugal duties.^  The  system  of  possessions  between  spouses  be- 
comes complicated  and  may  become  a  subject  of  study  distinct 
from  that  of  the  power  of  the  husband.  The  power  of  the  father 
in  its  turn  passes  through  the  same  evolution. 

§  124.  Adultery.^  —  The  violation  of  the  duty  of  fidelity,  es- 
pecially on  the  part  of  the  woman,  has  always  had  serious  conse- 
quences. First  of  all,  the  punishment  of  the  adulterous  wife  was 
left  to  the  husband  himself.  Tacitus  tells  us  that  he  drove  her 
through  the  village  armed  with  a  whip;  undoubtedly  he  means 
to  say  that  he  expelled  her  from  his  house  and  from  the  village  it- 
self, which  was  to  condemn  her  to  certain  death,  for  she  found 
herself  deprived  of  all  legal  protection.^  It  seems  as  though  one 
could  lay  it  down  as  a  general  rule  that  in  barbarian  legislation 
the  husband  has  the  right  to  kill  his  wife  and  her  accomplice  if  he 
takes  them  in  the  act.*    Outside  of  cases  of  flagrant  offense,  the 

1  Paul,  "1  Cor.,"  vii,  3-5;  excepting  if  the  woman  be  enceinte  ("Capit.," 
829,  21;  Boret,  2,  46),  upon  davs  of  fasting,  etc.  Details  in  Sanchez,  I,  IX, 
"F.  de  Nav.,"  4,  1,  3;  Hericourt,  "G.,"  VI,  27. 

2  Fournel,  "Tr.  de  I'Adult^re,"  2d  cd.,  1783;  Rosenthal,  "Rechtsfolg.  d. 
Ehebruchs,"  1880;  Bennecke,  id.,  1884;  "Dig.  Ital.,"  V.  —  On  adultery  at 
Rome,  cf.  Esmein,  "Melanges";  Meynial,  p.  46;  Mommsen,  "R.  Strafrecht," 
1900;  Starcke,  p.  55. 

»  Tacitus,  "Germ.,"  19.  Cf.  "L.  Burg.,"  34.  CJ.  other  terrible  punish- 
ments in  Du  Cange  (Anglo-Saxons,  Poles).    Thonissen,  "L.  Sal.,"  p.  300. 

*  Cf. in  Rome,  Paul,  II,  26  ("jus  occidenti"  for  the  "pater,"  penalty  of 
murder  against  the  husband);  "Cod.  Theod.,"  9,  15,  1;  Paul,  2,  27,  1  ("L. 

136 


Topic  5]  EFFECTS   OF   MARRIAGE  [§125 

tribunals  inflicted  upon  her  the  penalty  of  death.^  The  IVIosaic 
legislation,  based  upon  the  same  ideas,  ordered  the  stoning  of  the 
woman  taken  in  adultery.  We  know  the  words  of  Christ  upon 
this  subject:  "Let  him  who  is  without  sin  cast  the  first  stone."  ^ 
Reacting  in  the  name  of  humanity  against  the  old  and  obsolete 
customs,^  the  Church  was  satisfied  with  inflicting  penances  on  the 
guilty  woman;  at  the  same  time,  it  severely  condemned  the  adul- 
tery of  the  husband,  which  was  formerly  unpunished.^  While 
the  woman  may  be  excommunicated,  the  Penitentials  show  us 
the  husband  undergoing  a  penance  of  five  years,  or  even  a  per- 
petual penance;  ^  his  guilt  has  another  result;  it  takes  away 
from  him  the  right  to  avail  himself  of  that  of  his  wife:  "adulter 
adulteram  dimittere  non  valet." 

§  125.  The  Same:  Penalties.  —  If  the  Church  passed  judgment 
upon  adultery,^  had  its  tribunals  exclusive  jurisdiction  over  it  dur- 
ing the  Feudal  Period?  Cugneres  seems  to  admit  it  at  the  time 
of  the  Conference  of  Vincennes  by  the  very  fact  that  he  protests 
against  the  abuses  committed  by  the  ecclesiastical  judges  in  the 
prosecution  of  adultery.  But  the  Customs  give  jurisdiction  to 
the  seigniorial  or  municipal  justices,  and  the  tribunals  of  the  king 
in  the  end  were  substituted  for  all  other  jurisdiction.  The  usages 
and  customs  of  the  Middle  Ages  had  upheld  the  not  very  Christian 
punishment  of  running  the  gauntlet;  tragic  as  it  was  formerly,  it 
turned  into  the  obscene  and  burlesque,^  so  much  so  that  the  pen- 
Rom.  Wis.");  right  of  the  husband  to  kill  the  wife  taken  in  flagrant  offense  in 
his  house:  "Wis.,"  3,  4,  3;  "Bai.,"  7,  1;  "Burg.,"  68;  "Roth.,"  212,  213; 
"Liut.,"  130;  "Ass.  de  J6rus.,"  "C.  d.  B.,"  288;  Gri?nm,  "R.  A.,"  450,  742; 
Brunner,  II,  662;  Zeithopf,  "De  Jure  Occid.  Prehens  in  Adult.,"  1667. 

1  "Rib.,"  77.  Proof  by  ordeals,  the  duel.  —  Cf.  proof  of  the  bitter  waters 
among  the  Hebrews. 

2  "John,"  viii,  7.  Cf.  "L.  de  Constantin";  "sacrilegos  nuptiarum  gladio 
puniri  oportet"  (.30,  "Cod.  Just.,"  "ad.  1.  Jul.  de  ad.");  "Cod.  Thdod.,"  9,  7, 
2;  Me?/mai,  p.  52;  "L.  Rom.  Wis.";  "Cod.  Th6od.,"  9,  6. 

'  Outside  of  the  power  of  the  husband,  of  his  quasi-ownership  of  the  wife, 
which  accounts  for  the  harsh  punishments,  the  latter  are  equally  owing  to 
religious  ideas,  such  as  ancestor  worship,  which  legitimate  children  alone  are 
capable  of  rendering;  let  us  add  that  adultery  with  a  stranger  often  implies  a 
betrayal  of  the  family;  with  a  member  of  the  family  it  is  the  ruination  of  all 
discipline. 

''  Gratian,  C,  32,  q.  6.  (St.  Augustine:  the  husband,  who  is  the  master 
of  the  wife,  shoidd  set  her  a  good  example;  he  is  bound  to  pardon  her,  even 
for  adultery,  if  she  shows  herself  penitent).    Cf.  Paul,  "Sent.,"  2(),  8. 

*  Van  Espen,  "Jus.  Eccles.,"  3,  4;  Register  of  the  Ecclesiastical  Judge  of 
Cerisy,  passim. 

*  Cf.  synodal  circuits  of  the  ninth  century. 

^  Du  Canqe,  see  "Adulterium"  and  "Trotari";  Michelet,  "Orig.,"  p.  388. 
Flogging  had  disapjieared  for  the  most  part  {Aigues-Mortes,  etc.).  Mart  el, 
1219,  "  trahetur  per  genitalia  nudus  "  (the  accomplice)  "ab  adult(Ta  nuda." 
Joinville,  "Vie  de  Saint  Louis,"  99;  Larroquc-Timbaud,  1270,  59,  and  a  great 

137 


§  125]  THE   FAMILY  [Chap.  I 

alty  was  more  scandalous  than  the  offense  itself.  The  fine  which 
had  sometimes  been  added  to  it  at  last  held  good.  The  accom- 
plice was  arbitrarily  punished  (banishment,  castration,  fine). 
The  carrying  out  of  these  penalties  was  very  rare,  owing  to  the 
rules  of  the  Customs  on  the  subject  of  proof;  thus,  at  Agen  the 
guilty  persons  must  be  taken  in  flagrant  offense  by  the  bailiff  and 
two  consuls.^  The  day  when  the  punishment  of  adultery  became 
one  of  the  attributes  of  the  State  ^  more  severity  was  shown.^ 
The  monarchic  decisions  substituted  for  the  canonic  penances, 
and  the  punishments  drawn  from  local  custom,  a  penalty  bor- 
rowed from  the  "Novella,"  134,  10,  of  Justinian,  and  from  the 
Authentic  "Sed  Hodie,"  which  was  a  commentary  upon  it:  the 
woman  convicted  of  adultery  was  shut  up  in  a  convent  and  lost 
the  privileges  of  a  married  woman  ("woman  proven  guilty")."* 

number  of  the  other  Customs  of  the  South;  there  are  none  of  them,  so  to 
speak,  which  do  not  provide  for  and  punish  adultery  and  rape:  "Castelsagrat," 
26;  "Fossat,"  49;  "Montoussin,"  6;  "Agen,"  19;  "Toulouse,"  156a;  "Albi," 
11;  "Montpellier,"  21;  "Barcelone,"  94,  110,  112;  "Acad.  Legisl.  Toulouse," 
IV,  196;  Le  Palenc  and  Dognon,  "Lezat,"  p.  94,  etc.  —  Note  the  progressive 
degradation  of  the  punishments :  running  the  gauntlet  without  being  bound ; 
authorization  to  keep  on  the  shirt  and  the  breeches;  optional  buying  off  for  a 
fine;  fine,  which  was  sometimes  not  very  heavy.  The  penalty  of  running  the 
gauntlet  is  inflicted  in  other  cases,  —  for  example,  the  thief  runs  through 
the  town  with  the  stolen  object  tied  to  his  neck:  Montegut  de  Bourjac,  20; 
Praderes,  5.  —  Another  disgracing  punishment:  the  woman's  dress  was  cut  off 
above  the  knees:  Zypacus,  "Jus.  Belg.,"  "ad.  1.,"  Jul.  7.  —  Glasson,  VI,  671; 
"F.  de  Nav.,"  4,  3;  "F.  Real.,"  4,  7;  Gui  Pape,  q.  206.  Disgracing  punish- 
ments are  frequent  in  the  Middle  Ages.  Grimm,  p.  711,  gives  a  long  list  of 
them;  carrying  a  dog  or  a  saddle  or  dragging  a  cart;  carrying  a  stone  (by  wo- 
men); straddling  a  donkey,  etc.  At  Spire  one  saw  "in  foro  lapidem  politum, 
catena  ferrea  alligatum,  quern  adulterium  perpetrantes  per  civitatem  ferre 
cogebantur." 

1  Under  such  conditions  that  it  required  a  great  deal  of  good  will  on  their 
part  to  undergo  the  legal  punishment:  "Agen,"  19;  "Tonneins,"  124.  No 
penalty  if  they  succeeded  in  escaping:  Lagreze,  "Dr.  dans  les  Pyrenees," 
p.  316. 

2  In  the  fifteenth  century  a  Lord  of  Craon  obtained  permission  from 
Louis  XI  to  keep  liis  wife  shut  up  and  walled  in:  Viollet,  p.  505.  Details  aa 
to  tliis  penalty  in  Du  Cange,  see  "Adult."  ("Aragon.") 

^  Zypacus,  loc.  cit.,  complains  because  this  crime  is  punished  "nimis  molli- 
ter."  Damhoudre  does  the  same  in  his  "Prat.  Crim.,"  91,  17.  The  old  prac- 
tice here  corresponds  with  literature  in  which  adultery  is  only  something  to 
be  laughed  at  (tales  and  fabliaux),  ^gidius,  "DeAppd.,"  6,  cites  an  old 
order  "de  uxoratis  scortatoribus,"  which  takes  jurisdiction  of  the  crime  of 
adultery  away  from  the  ecclesiastical  judges:  Fournel,  p.  53  (bibl.). 

^  "Glose"  on  "LeCouvent,"  7,  5;  C.,32,q.l.  She  wore  her  secular  clothing 
for  two  years  (or  for  such  other  time  as  it  pleased  the  courts  to  specify) ;  the 
husband  was  free  to  visit  her  and  even  to  take  her  back;  if  he  did  not  do  this 
before  the  expiration  of  the  time  which  had  been  fixed,  she  was  shaved,  veiled, 
and  she  put  on  the  religious  costume  of  the  house;  however,  the  husband 
could  always  reclaim  her,  for  she  did  not  become  a  nun  ("the  coat  does  not 
make  the  monk");  it  also  resulted  from  this  that  she  did  not  become  civilly 
dead,  she  stiU  remained  able  to  bind  herself,  to  make  a  gift,  to  make  a  will, 

138 


Topic  5]  EFFECTS   OF   IVL\RRIAGE  [§  126 

For  the  judicial  procedure  there  was  sometimes  substituted  the 
dehvery  of  an  order  of  arbitrary  arrest/  with  the  object  of  avoid- 
ing scandalous  trials,  which  might  disgrace  the  family;  trials  which 
would  be  the  more  frequent  as  proof  became  more  accessible,  and 
at  the  same  time  more  uncertain  (official  reports,  writings,  wit- 
nesses). In  the  latest  stage  of  the  law  the  husband  alone  is 
authorized  to  accuse  his  wife  of  adultery  (excepting  in  cases  of 
connivance  and  scandal),^  but  in  theory  he  has  lost  the  right  of 
putting  her  to  death  if  he  surprises  her  in  a  flagrant  offense,  a  right 
in  which  we  must  see  a  very  persistent  trace  of  the  "jus  vitse 
necisque"  of  primitive  times.^  As  a  matter  of  fact,  if  he  does 
make  use  of  it,  it  is  not  difficult  for  him  to  obtain  a  pardon.^ 

§  126.  The  Same.  —  Civil  legislation  never  treated  adultery 
of  the  husband  as  it  did  that  of  the  wife.^  The  guilty  husband  is 
not  subject  to  any  penalty,  is  not  liable  to  have  the  judicial  sep- 
aration pronounced  against  him  because  of  this  fact,  and,  finally, 

etc.  The  adulterous  wife  was  deprived  of  her  dower,  of  her  marriage  portion 
and  of  her  share  in  the  community,  which  were  conferred  upon  her  husband, 
absolutely;  she  recovered  all  these  rights  when  her  husband  took  her  back. 
As  far  as  the  accomplice  was  concerned,  the  punishment  varied  according  to 
circumstances  (public  penance,  banishment,  galleys) ;  he  might  be  condemned 
to  pay  civil  damages  to  the  husband:  Fournel,  pp.  122,  362;  Guyot,  see  "Rep." 
This  was  the  work  of  jurisprudence:  Order  of  1522,  etc.j  Bcerius,  "Decis.," 
279;  Papon,  I,  22,  vol.  9.  Death  in  case  of  aggravating  circumstances  (adul- 
tery with  a  man  servant):  "L.  des  Droiz,"  435.  In  England  the  wife  only 
lost  her  survivor's  portion  if  there  were  children  of  the  marriage:  Glasson, 
Lehr,  op.  cit.;  Pollock  arid  Maitland,  II,  392  (recent  rule).  Contra,  German 
law:  Stobhe,  §  249,  I,  2. 

1  Merlin,  see  "Adultere";  Joly,  "Proces  des  Mirabeau,"  p.  104. 

2  Fournel,  p.  66 " (prosecution  of  both  guilty  parties  necessary).  Prescrip- 
tion of  five  years.  The  heirs  of  the  husband  could  carry  on  the  accusation 
that  had  been  begun  by  him,  but  only  with  the  object  of  obtaining  confisca- 
tion of  the  marriage  portion  and  of  the  property  taken  back  by  the  wife. 

^  "Schwabenspiegel,"  2,  22  (confiscation  of  the  person  and  possessions  of 
the  husband  who  takes  the  law  into  his  own  hands)  c/.  Laboidaye,  p.  339. 
"Fuero  Real":  both  guilty  parties  are  turned  over  to  the  husband,  who  takes 
vengeance  on  them  as  he  pleases:  "  For.  de  Tudele  " :  he  could  kill  both  of  them, 
but  he  did  not  have  the  right  to  spare  one  of  them;  "Siete  Part.";  "  Authcntica 
Sed  Hodie";  Lagrcze,  "Navarre,"  II,  371;  "For.  de  Nav.,"  4,  3,  5  et  seq. 

*  Cf.  "Nov.,"  117,  15:  three  warnings  addres.sed  by  the  hu.sband  to  the 
man  whom  he  suspects  of  making  an  attempt  upon  the  honor  of  his  wife,  and 
a  right  to  kill  him  if  after  that  he  takes  him  unawares  even  in  conversation 
with  her.  Italy,  sixteenth  century,  Nevisanus,  "8ylva  Nuptialis,"  p.  59; 
"Bergerac,"  89;  Beaumanoir,  c.  30;  Fournel,  p.  462  (complaints  in  actions  based 
upon  solicitation).  If  one  wishes  to  have  some  idea  of  what  the  legislation 
which  we  have  just  been  describing  was  really  like,  one  should  recall  the 
speech  of  the  husband  of  the  eighteenth  century  who  took  his  wife  unawares: 
"What  an  indiscretion!  Madame,  suppose  it  had  been  anybody  but  me!" 
Goncourt,  "La  Femme  au  XVIII®  s.,"  p.  234. 

^  Excepting  in  case  of  scandal  and  cruelty  (for  example,  the  husband  keepa 
a  mistress  in  his  house:  Order  of  1543):  Fournel,  p.  19;  "Cod.  Tlu'-od.,"  3, 
16,  1;  "Cod.  Just.,"  5,  17,  8;  Juvenal,  "Sat.,"  2;  Montesquieu,  "Espr.  des 
Lois,"  26,  8. 

139 


§  126]  THE   FAMILY  [Chap.  I 

does  not  lose  the  right  to  demand  this  measure  against  his  wife  in 
case  she  shall  have  committed  the  same  fault;  under  such  circum- 
stances he  is  simply  deprived  of  the  attainment  of  the  marriage 
portion  and  the  privileges  of  a  married  man.  Unjustifiable  from 
the  religious  point  of  view,  this  inequality  between  the  spouses 
was  in  conformity  with  tradition  and  had  a  bearing  on  social  in- 
terests, because  the  adultery  of  the  wife,  thus  differing  from  that 
of  the  husband,  always  carries  with  it  the  risk  of  stripping  the 
family  by  causing  their  possessions  to  pass  to  strangers,  and,  by 
reason  of  the  doubt  which  it  throws  upon  paternity,  it  compro- 
mises the  situation  of  the  legitimate  children  themselves. 


140 


Topic  6] 


DISSOLUTION    OF   MARRIAGE 


[§128 


Topic  6.     Dissolution  of  Marriage 


§  127.  The    Death    of    one    of    the 

Spouses. 
§  128.  Divorce.     The  Lower  Empire. 
§  129.  The  Germanic  Law. 
§  130.  Canon  Law. 
§  131.  Judicial  Separation. 


§  132.  The  Jurisprudence  of  the  Par- 
liaments. 

§  133.  Reaction  against  Indissolubil- 
ity.    The  Reformation. 

§  134.  The  Philosophers  of  the  Eight- 
eenth Century. 

§  135.  Revolutionary  Laws. 


§  127.  The  Death  of  one  of  the  Spouses  is  the  only  cause  of 
the  dissolution  of  marriage,  at  least  in  the  conception  which  pre- 
vailed with  regard  to  it.  Absence,  however  prolonged  it  may 
be,  does  not  sever  the  religious  bond;  the  same  as  regards  civil 
death ;  ^  the  pecuniary  effects  of  marriage  may  indeed  cease,  but 
the  sacrament  survives.  The  spouse  whose  status  remains  the 
same  has  not  the  powder  to  take  advantage  of  this  situation  in 
order  to  contract  a  fresh  union. 

§  128.  Divorce.  The  Lower  Empire.  —  The  indissolubility  of 
marriage  seems  to  have  been  unknown  in  primitive  law.  Rome 
made  use  of  divorce  under  two  forms:  1st,  by  mutual  consent;  ^ 
2d,  by  repudiation  on  the  part  of  one  of  the  spouses,  sometimes 
for  just  causes  or  causes  determined  by  law,  and  sometimes  for 
incompatibility  of  disposition.  Forms  were  no  more  requisite  in 
the  case  of  divorce  than  they  were  in  that  of  marriage.  The  "  Lex 
Julia,  de  adulteriis"  merely  provided  that  a  notification  of  the 
repudiation  should  be  given  before  seven  witnesses^  (ordinarily 
by  the  consent  of  the  "libellus  repudii").  As  to  the  guilty  spouse, 
it  was  sufficient  to  punish  him  by  means  of  pecuniary  penalties, 
less  with  the  object  of  avoiding  divorce  than  to  make  up  for  the 
unjust  injury  inflicted  upon  the  other  spouse.  With  the  Christian 
emperors  the  law  changed.^    Constantine  in  331  inflicts  the  most 

1  As  to  absence,  c/.  Fournel,  "Tr.  de  I'Adult.,"  140;  "Jostice,"  p.  182; 
Order  of  Aug.  4,  1670  (Jean  Maillart  absent  40  years);  cf.  "Enoch  Arden" 
bv  Tennyson.  Formalities  for  remarriage,  Order  of  Feb.  9,  1740;  Cornu, 
"Th^se,"  1887. 

2  "Cod.  Th^od.,"  3,  16,  1;  "Cod.  Just.,"  5,  17,  8;  "Nov.,"  134,  11;  140; 
"L.  Rom.,"  "Wis.,"  "Int.,"  "Cod.  Th6od.,"  3,  16,  1;  Papien,  21,  1  ("Nov. 
Th6od.,"  12);  "F.  Sirm.,"  19;  "Andec,"  56;  Lindenbrog,  84;  Meynial,  p.  69. 

3  Drach,  "Du  Divorce  dans  la  Synagogue,"  1840;  Selden,  "Uxor  Ebraica," 
1695;  "Deuter.,"  xxiv,  1.  If  the  wife  does  not  find  favor  before  her  husband 
because  he  finds  there  is  something  disgraceful  about  her,  he  shall  write  her 
a  letter  of  divorce. 

'  Ulp.,  "Reg.,"  6,  10. 

141 


§  128]  THE   F.\]VIILY  [Chap.  I 

severe  punishments  upon  the  spouse  who  repudiates  the  other 
without  just  cause  and  hmits  these  to  three:  if  the  husband  is  a 
homicide,  a  poisoner,  or  despoiler  of  graves;  if  the  woman  is  an 
aduheress,  a  poisoner,  or  a  procuress.^  One  can  say  that  here  we 
have  the  first  Christian  law  against  divorce.  It  is  again  to  be 
found  in  the  Breviary  of  Alaric  and  the  Paphian. 

§  129.  The  Germanic  Law^  started  from  a  more  archaic  condi- 
tion, where  the  husband  alone  had  the  power  to  repudiate  his  wife, 
perhaps  first  of  all  without  any  cause,  but  evidently  at  a  very  early 
period  with  the  danger  of  exposing  himself  to  the  vengeance  of  her 
relatives,  if  he  sent  her  away  without  the  customary  motives^ 
(adultery,  etc.).^  Divorce  by  mutual  consent  took  its  place  in 
the  Barbarian  law,  which  felt  the  Roman  influence,^  and  one  also 
finds  therein,  alongside  of  the  repudiation  for  just  cause  ^  on  the 
part  of  the  husband,  as  an  exception,  it  is  true,  a  corresponding 
repudiation  of  the  husband  by  the  wife;  furthermore  it  seems 
that  the  inequality  had  not  disappeared,  for  if  the  wife  leaves  her 
husband  without  cause  ^  she  is  subject  to  corporal  punishment,^ 

1  "Cod.  Th6od.,"  3,  16,  1.  The  guilty  spouse  loses  gifts  made  because  of 
the  marriage;  and  the  other  spouse  can  remarry.  The  spouse  who  repudiatei 
the  other  without  cause  loses  these  same  gifts;  should  it  be  the  wife,  her 
punishment  is  deportation;  should  it  be  the  husband,  he  is  not  allowed  to 
remarry,  or,  if  he  should  do  so,  the  wife  has  a  right  to  take  possession  of  the 
marriage  portion  of  the  second  wife:  "L.  Rom.  Wis.,"  3,  16,  1,  2;  Papien,  21; 
"  Petrus,"  3,  7.  This  law  is  slightly  modified  by  c.  2,  ib.  (421) ;  subsequent  legis- 
lation (which  does  not  seem  to  have  been  applied  in  Gaul?)  reverted  to  less 
severe  rules:  "Cod.  Just.,"  5,  17,  8. 

2  Heusler,  "Inst.,"  §  133;  Schroeder,  §  35  (p.  303);  Loening,  "Kirchenr.," 
II,  612  et  seq.;  Grimm,  "R.  A.,"  454;  Michelet,  "Orig.,"  p.  57;  Darestc, 
"Etudes,"  passim. 

3  "Wis.,"  3,  6;  Greg.  T.,  3,  27;  5,  3;  "Freddg.,"  5,  30;  ^helb.,  79  et  seq. 

*  Two  systems  sometimes  practised  simultaneously:  (a)  composition  paid 
to  the  relatives  of  the  wife;  "Bai.,"  7,  14;  "Pactus  Alam.,"  3,  2;  Grimoald, 
6;  "Burg.,"  34  (to  the  wife).  —  (6)  taking  back  of  her  personal  possessions 
by  the  wife  and  right  to  demand  her  marriage  portion  (Germanic)  or  even 
pecuniary  penalties  for  the  benefit  of  the  wife:  Ibid,  and  "Wis.,"  3,  6,  1.  All 
the  more  so  are  gifts  made  by  the  wife  to  the  husband  cancelled.  As  to  tho 
legal  share  of  the  sur\ivor,  cf.  infra.  ■ — Same  pecuniary  consequences  when  the 
wife  leaves  her  husband  for  just  cause,  and  the  opposite  consequences  when 
the  husband  legally  repudiates  her. 

^  "Burg.,"  21,  34;  "Alam.,"  3,  2  (equal  partition  of  the  "lectaria";  the 
wife  has  what  the  law  gives  her);  Roziere,  111-114;  Thevenin,  nos.  8,  23,  41; 
Marculfe,  2,  30;  "Andec,"  56;  "Sachsensp.,"  I,  25,  4  (vow  of  chastitv). 

6  Adulterv:  "Burh.,"  34;  "Bai.,"  8,  14,  15;  "Alam.,"  3,  3;  53,  1;  "Roth.," 
262;  "Liut.,"  120,  190;  "Wis.,"  3,  6,  1.  Cf.  Greg.  T.,  5,  33;  4,  26;  8,  27;  10, 
8.  Attempt  upon  the  life  of  the  husband:  "Roth.,"  202;  "Burg.,"  34,  3 
(profanation  of  the  grave,  the  preparing  of  poison). 

'  "Wis.,"  3,  5,  5;  6,  2:  the  husband  has  morals  which  are  against  nature 
(cf.  Noodkerk,  "De  Matrim.,"  1733),  or  wishes  to  prostitute  his  wife:  "Roth.," 
195  et  seq.;  or  treats  her  as  a  sorceress,  or  makes  an  attempt  upon  her  life, 
etc.:  Grimoald,  6  and  8:  bigamy. 

8  "In  luto  necetur";  "Burg.,"  34,  1;  Grimm,  691;  Schroeder,  p.  330.    The 

142 


Topic  6]  DISSOLUTION   OF  MARRIAGE  [§  130 

whereas  the  husband  under  similar  circumstances  is  merely  ex- 
posed to  pecuniary  penalties.^  If  it  was  the  custom  to  estabUsh 
divorce  by  a  writing,^  it  does  not  appear  that  this  was  an  indis- 
pensable form,  nor  that  there  were  any  particular  formalities 
other  than  the  latter. 

§  130.  Canon  Law.^  —  At  the  time  of  the  appearance  of  Christ 
nothing  foreshadowed  the  disappearance  of  an  institution  so 
widespread  in  all  the  ancient  world  (Jews,  Greeks,  Romans). 
But  it  was  opposed  to  the  spirit  of  Christianity  and  the  triumph  of 
the  new  religion  must  carry  with  it  its  suppression.  The  Gospel  ^ 
and  the  Epistles  of  the  Apostles  ^  condemned  it;  they  proclaimed 
the  new  principle  of  the  indissolubility  of  marriage;  the  spouses 
should  always  be  ready  to  pardon  an  injury  which  they  have 
received  at  one  another's  hands;  charity  obliges  them  never  to 
separate  from  one  another  without  the  hope  of  returning.^  One 
of  the  principal  texts  upon  this  question,  the  passage  from  St. 
Matthew,  v,  31,  32,  lent  itself,  however,  to  discussion,  in  setting 
aside  repudiation  caused  by  the  adultery  of  the  wife.  The 
prevailing  opinion  among  the  Fathers  of  the  Church  ^  is  that 
even  in  this  case  divorce  is  prohibited;  the  husband  should  take 
back  his  wife  who  repents  of  her  fault;  he  has  the  right  and  it  is 
his  duty  to  separate  himself  from  the  wife  who  persists,  but  he 
has  no  right  to  remarry.^    With  St.  Augustine  ^  it  triumphed, 

abduction  of  the  married  woman  seems  to  have  dissolved  the  marriage  in  the 
very  old  law:  see  "Betrothals";  "Alam.,"  51,  52;  "^Ethelbirt,"  31. 

1  "Burg.,"  34,  4:  he  leaves  his  house  and  his  possessions  to  his  wife  and 
his  children.  C/.  "Cod.  Theod.,"  3,  16,  1;  "Int.,"  §  2  of  the  "L.  Burg."  gives 
the  previously  exi.sting  law;  "Wis.,"  3,  6,  1;  "Bai.,"  8,  15. 

2  "Form.  Andec,"  56,  etc.     Competence  of  the  civil  tribunals. 

3  Gratian,  C,  32,  q.  7  et  seq.;  Dig.  X,  4  19;  Richter,  §  286  (bibl.). 

*  "Mark,"  x,  11, 12;  "Luke,"  xvi,  18  (absolute indissolubiUty) ;  "Matth.,"  v, 
31.    Cf.  Selden,  "Uxor  Ebraica  s.  de  Nupt.  et  Div.,"  1695. 

8  Paul,  "Rom.,"  vii,  13;  "1  Cor.,"  vii,  10-11,  39;  "Ephes.,"  v,  21. 
«  "Le  Pasteur  d'Hermas,"  "Mand.,"  IV,  1  {Gratian,  C,  34,  q.  1,  c.  7). 

7  Perrone,  "De  Matrim.  Christ.,"  18.58,  III,  p.  243. 

8  Gratian,  C,  32,  q.  7;  TertuUian,  "adv.  Marcion  .  .  .,"  4,  34  (cf.  Poihier, 
"Mariage,"  no.  489):  right  of  the  husband  to  repudiate  his  adulterous  \\-ife. 
Origen,  "In  Math.,"  4,  22;  Chrysost.,  "De  Lubello  Repudii." — St.  Epiphany, 
"Adv.  Haer.,"  39  (59),  4;  Asterius,  "In  Math.,"  19,  3;  St.  Augustine,  "De 
Adult.  Conj.,"  2,  2  (idea  of  the  death  of  the  adulterous  spouse,  cf.  Mosaic 
law,  death  of  the  wife).  The  Eastern  Church  has  kept  divorce  (as  a  necessary 
evil)  but  only  for  a  determined  cause  (adultery  of  the  wafe,  attempt  by  one 
of  the  spouses  upon  the  life  of  the  other,  impotence  of  the  husband,  absence, 
the  husband  having  a  concubine,  etc.):  "Nov.,"  117;  Zhisman,  729;  Vering, 
"Kirchenr.,"  p.  329;  Jovanovic,  "Bull.  Soc.  L6g.  Comp.,"  1885;  "Acad.  Leg. 
Toul.,"  1892. 

8  "Tr.  de  Adulterinis  Conjugiis"  (St.  Matthew  allows  the  husband  to  send 
away  his  wife  who  is  an  adulteress,  but  not  to  remarry,  which  would  have  been 
a  violation  of  the  Christian  principle  of  equality  between  the  spouses):  "De 

143 


§  130]  THE    FAMILY  [Chap.  I 

for  the  celebrated  doctor  had  the  ingenuity  to  connect  it  with  the 
idea  that  marriage  was  a  sacrament,  an  image  of  the  union  of 
Christ  and  the  Church,  and  no  less  indissoluble  than  the  latter:  ^ 
it  became  almost  a  dogma. 

Before  the  ninth  century  ecclesiastical  discipline  is,  -however, 
not  very  firm  (Decrees  of  Councils  ^  and  Penitentials)  .^  Divorce 
is  practiced  in  the  Prankish  State  without  the  Church  offering  any 
opposition.  In  the  ecclesiastical  Capitularies,  at  the  end  of  the 
eighth  century,  exceptions  are  still  brought  to  bear  upon  the  in- 
dissolubility.^ The  principle  laid  down  as  absolute  by  the  Ca- 
pitularies of  789  and  829  ^  was  not  yet  fully  enough  accepted  ^  to 
provide  against  the  serious  difficulties  which  the  divorce  of  Lothaire 
and  Teutberge  ^  encountered  in  857;  it  required  all  the  energies  of 
the  pope,  Nicholas  I,  to  make  it  respected.  Moreover,  the  prac- 
tice of  divorce  was  so  firmly  rooted  in  the  Customs  that  it  has  left 
traces  in  the  final  doctrine  of  the  Church,  as  it  was  formulated 
by  Gratian  and  the  Decretals.^ 

Nuptiis,"  I,  10-21.  However,  "De  Fide  et  Op.,"  19,  he  admits  that  the  hus- 
band wlio  contracts  a  new  union  only  commits  a  pardonable  sin.  But  the 
"Tr.  de  Adult.,  C."  is  more  recent. 

1  Cf.  Gratian,  C,  27,  q.  2,  c.  19  etseq.;  C,  32,  q.  7;  34,  q.  1. 

2  Elvire,  305  (c.  9:  no  penalty  against  the  man  who  remarries) ;  "Aries,"  314, 
c.  24;  "Angers,"  453;  "Vannes,"  465,  etc.;  Loening,  11,609.  A  more  severe 
tendency  in  the  letters  of  the  poises:  {Greg.  II  to  Boniface,  726;  Jaffe,  "  Monum. 
Mogunt.,"  p.  89;  Innocent  I  to  Exupcre  of  Toulouse,  405;  Labbe,  2,  1254)  and  in 
the  Council  of  the  eighteenth  century  ("Frioul,"  796;  "Paris,"  829;  "Nantes," 
"Tribur,"  895). 

3  Some  of  them  tolerate  divorce  by  mutual  consent:  "Theod.,"  2,  12,  7; 
"Can.  Greg.,"  65;  others,  repudiation  with  just  cause  (adultery  of  the  wife,  im- 
potence of  the  husband,  captivity  of  one  of  the  spouses,  etc.):  Hinschius,  "Z. 
f.  Kirch.,"  20,  66;  Wasserschleben,  "Bussordn.,"  214,  401.  _ 

^  Exceptions:  adultery  of  the  wife,  or  even  lack  of  virginity;  leprosy  or 
impotence  of  the  husband;  entering  a  monastery  by  one  of  the  spouses;  slav- 
ery; complicity  in  an  attempt  upon  the  life  of  the  husband;  the  wife  does  not 
follow  the  husband  when  he  leaves  the  province:  "  Soissons,"  744;  "  Compiegne," 
757;  Verberie,  758  or  768;  Viollet,  445;  "Ass.  Jerus.,"  "C.  des  B.,"  172  (175): 
leprosy,  or  "li  put  trop  fierement  le  nez"  or  "pisse  aucune  nuit  au  lit."  The 
invalid  should  enter  religion,  the  other  spouse  remarries:  "  F.  de  Morlaas,"  357; 
cf.  "Deuter.,"  xxiv,  1.  These  decisions,  which  are  found  in  Gratian,  have  given 
rise  to  annulment  of  marriage  for  impotence  and  mistake  as  to  condition. 

6  "Cap.,"  789,  43;  829,  3  and  c.  21;  Boret,  I,  56;  II,  18,  46;  "Capit.,"  I, 
42;  VI,  87,  235  (whether  the  husband  remain^  single  or  whether  he  forgives  in 
case  of  adultery  of  his  wife) .  —  Sanction :  (a)  religious,  —  excommunication, 
public  penance;  (b)  civil:  the  count  puts  the  offender  in  irons  and  in  prison 
until  the  matter  shall  be  carried  before  the  emperor. 

^  Sdralek,  "Hincmar,"  126j  Scherer,  34,  50;  Freisen,  801. 

^  Guizot,  "Hist,  de  la  CiviHs.  en  France,"  27;  /.  Isambert,  I,  150  (Louis  VII 
and  Alienor);  Lot,  "Les  Dern.  Carol.,"  p.  366  (Adelaide,  wife  of  Louis  V 
"le  Faineant"  and  William  of  Aries);  Quinquet  de  Monjour,  "L'Indissolubilit6 
du  ]\Lariage,"  These,  1901;  Dumas,  id.,  1902. 

8  Gratian,  C,  32,  q.  7;  Dig.  X,  "de  Divort";  P.  Lombard,  "Sent.,"  4,  35. 
Cf.  marriage  contracted,  but  not  consummated:  "Trent,"  s.  24,  c.  7,  does 

144 


Topic  6]  DISSOLUTION  OF  MARRIAGE  [§  132 

§  131.  Judicial  Separation.^  —  The  word  "  divortium "  did  not 
disappear  from  the  language  of  the  law  and  served  to  designate: 
1st.  The  separation  of  the  spouses  in  the  case  of  anulment  of  the 
marriage.^  2d.  Judicial  separation  or  separation  of  domicile,^ 
pronounced  by  the  ecclesiastical  judge  ^  in  certain  settled  cases : 
adultery  of  the  wife,  serious  ill-treatment  on  the  part  of  the 
husband,  and,  finally,  apostasy  or  heresy  of  one  of  the  spouses 
(spiritual  fornication).  The  adultery  of  the  husband  excused 
that  of  the  wife,  and  it  carried  with  it  separation,  if  the  wife, 
without  blame  on  her  part,  demanded  it.  Cohabitation  and 
the  conjugal  duty  ceased  to  be  obligatory,  but  reconciliation 
was  possible.^ 

§  132.  The  Jurisprudence  of  the  Parliaments  during  the  mo- 
narchic period  regulated  the  separation  of  domicile.'^  The  causes 
were  left,  as  a  general  thing,  to  the  opinion  of  the  judge  (for  ex- 
ample, bad  treatment,  refusal  of  the  necessaries  of  life).^  At  the 
same  time,  the  adultery  of  the  wife  always  had  the  effect  of  carry- 
ing with  it  separation,  if  it  were  asked  for  by  the  husband;  it 
was  not  the  same  thing  in  the  case  of  that  of  the  husband.^ 
"Much  should  a  wise  woman  suffer  and  endure,"  says  Beau- 
manoir,  "before  she  puts  herself  away  from  the  society  of  her 
husband." 

From  the  moment  when  the  separation  takes  place  only  for 
certain  causes  the  intervention  of  the  judge  is  necessary,  and  it 
was  the  secular  judge  who  here,  as  in  many  other  cases,  took  the 

not  anathematize  those  who  profess  that  marriage  is  not  indissoluble  (Greeks). 
C/.  annulment  of  marriage. 

1  Cosci,  "De  Separ.  Thori,"  1856;  Bard,  "These,"  1874. 

2  "Sachsensp.,"  Ill,  74;  Pollock  and  Maitland,  II,  391;  Lattes,  p.  237; 
"Siete  Part.,"  IV,  10;  "F.  de  Morlaas,"  357. 

^  "Quoad  torum  et  mensam,"  but  not  "quoad  fadus  et  vinculum":  Hos- 
tiensis,  IV,  "De  Div.";  Sanchez,  I,  X;  Van  Espea,  2,  15. 

*  Viollet,  446,  4,  cites  an  Order  of  the  year  1378  ("Arch.  Nat.,"  XPa,  27, 
fo.  Uro)  deaUng  with  a  separation  by  mutual  consent;  this  is  an  anomaly: 
Luchaire,  "Louis  le  Gros,"  no.  430;  Beaum.,  57;  "Siete  Part.,"  VI,  12. 

5  The  husband  may  even  compel  the  wife  who  commits  adultery  to  once 
more  take  up  their  life  together:  Hericourt,  "Loix  Eccl(5s.,"  G.  VI;  Lancelot, 
"Inst.,"  2,  13;  Sanchez,  I,  X. 

«  Louet,  s.  643;  Ferrihre,  see  Guyot  (and  bibl.);  Pothier.  "Tr.  du  Contrat  de 
Manage,"  6,  3.  England:  the  Courts  of  the  Church  only  lost  jurisdiction  of 
testimonial  and  testamentary  actions  in  1857. 

'  But  not  the  illness  or  dementia  of  one  spouse. 

8  Beaumanoir,  57,  4,  only  considers  the  fact  of  the  husband's  maintaining 
a  concubine  in  the  conjugal  home  to  the  knowledge  of  his  neighbors  as  a 
cau.se  for  separation:  "Jostice,"  p.  196;  "L.  des  Droiz,"  773;  Gautier,  "Che- 
valerie,"  p.  360.  Cf.  in  this  sense  the  English  law  (which,  however,  admits  of 
compensation  for  torts  committed  by  one  spouse  upon  the  other):  Glassofi, 
"Inst.  Anglet.,"  VI,  180. 

145 


§  132]  THE    FAMILY  [ChaP.  1 

place  of  the  ecclesiastical  judge.  The  sworn  statement  of  a  spouse 
was  not  looked  upon  as  a  sufficient  proof;  except  for  this,  volun- 
tary separations  would  have  been  too  easy  a  matter.  Separation 
does  not  dissolve  the  tie  of  marriage;  it  frees  the  spouse  from  the 
duty  of  cohabitation/  but  not  from  the  duty  of  fidelity;  the  hus- 
band even  retains  a  part  of  the  husband's  power.  Separate 
maintenance  is  a  compulsory  consequence  of  judicial  separation.^ 
§  133.  Reaction  against  Indissolubility.  The  Reformation.  — 
The  indissolubility  of  marriage  is  the  result  of  religious  ideas: 
Christian  charity,  texts  of  Scripture,  conception  of  the  sacrament. 
Once  it  had  passed  to  the  stage  of  an  official  doctrine,  the  theo- 
logians bethought  themselves  to  justify  it  by  reasons  drawn  from 
natural  law.^  A  most  idle  assumption,  if  one  considers  the  ancient 
law,  but  one  which  is  inspired  by  a  very  high  ideal,  by  the  thought 
that  a  single  union  is  compatible  with  the  dignity  of  life  ("unum 
corpus,  una  vita").  There  is  no  doubt  that  divorce  is  an  evil  for 
the  spouses  themselves,  and  still  more  so  for  their  children;  but 
the  question  is  whether  there  are  not  circumstances  under  which 
it  is  a  lesser  evil  than  cohabitation  in  a  hypocritical  manner,  or 
discord  and  contempt  on  both  sides,  or  the  judicial  separation  ac- 
companied by  a  life  of  irregularities.  The  Catholic  Church  itself, 
in  spite  of  its  intolerance,  has  had  to  make  concessions,  because, 
according  to  its  doctrine,  the  indissolubility  is  not  perfect  unless 
the  marriage  is  consummated,"*  and  because  the  annulment  of 
the  marriage  sometimes  degenerates  into  a  divorce  in  disguise.^ 
The  Reformed  Church,  as  a  consequence  of  its  adherence  to  the 
Bible  in  preference  to  the  New  Testament,  and  by  force  of  prac- 
tical necessity,  reacted  against  the  excess  which  had  come  about. 

'  Children  born  after  separation:  Beaumanoir,  18,  6. 

2  "Olim,"  III,  152  (1304).  As  to  capacity  of  the  wife  who  has  been  sepa- 
rated, cf.  infra,  "System  of  Possessions  as  between  Spouses,"  "Power  of  the 
Husband." 

3  "Trente,"  sess.  24,  c.  7;  "Catech.  Rom.,"  "De  Matrim.,"  1,  11;  Syllabus 
"Err.  de  Matr.,"  8,  67;  Encycl.  "Arcan.  Div."  of  Leo  XIII,  Feb.  10,  1880. 
Also  motives  of  positive  divine  law:  "Gen.,"  ii,  23  ("erunt  duo  in  carne  una"); 
Dig.  X,  1,  36,  11,  4,  19,  8;  "in  VI,*'  3,  15,  1;  but  if  it  had  been  based  on  this 
idea  they  would  have  recognized  the  fact  that  marriage  among  the  infidels 
was  indissoluble;  also,  how  account  for  divorce  among  the  Hebrews?  St. 
Thomas,  "Summ.  Th.,"  2  a,  2  ae,  q.  154,  2c. 

■•  Sehling,  p.  98,  Dig.  X,  4,  13,  2.  Cases  which  were  rather  numerous  at 
first,  but  which  were  actually  restricted:  vow  of  chastity  by  one  spouse 
("Cone.  Trente,"  24,  6;  cf.  "Cod.  Just./'  1,  3,  52,  3),  dispensation  of  the 
Pope  {Richter  and  Schulte,  "Cone.  Trid.,'*  251;  "ActaS.  Sedis,"  17,  353;  18, 
196;  22,262;  23,  476);  marriage  of  infidels  (Dig.  X,  4,  19,  7;  3,  22,  6;  3.  33, 1). 

^  Especially  for  the  benefit  of  those  in  power;  cf.  Napoleon's  divorce: 
"B.  Ch.,"  1896,  197  (Louis  XII). 

146 


Topic  6]  DISSOLUTION   OF  MARRIAGE  [§134 

It  admitted  of  divorce/  at  least  in  cases  of  adultery,^  in  conformity 
with  the  passage  from  St.  INIatthew,  and  when  one  of  the  spouses 
deserted  the  other  ^  or  was  guilty  of  cruelty  to  the  other.^  A  very 
widespread  opinion  even  came  to  be  maintained  that  divorce  was 
lawful  every  time  the  union  between  the  spouses  was  broken  be- 
cause their  affections  had  ceased,  for  it  was  no  longer  an  image 
of  the  union  of  Christ  and  the  Church.  The  legislation  of  Protes- 
tant countries  conformed  more  or  less  absolutely  to  these  theories.^ 
§  134.    The  Philosophers  of  the  Eighteenth  Century  ^  attacked 

1  Fnedberg,  §  160  (bibl.);  Richter,  "Z.  Gesch.  d.  Ehescheid.  in  Ev.  K.," 
1858;  Grubner,  "Ueb.  Desertio,"  1882;  Mossdorf,  1740. 

2  Th.  de  Beze,  "De  Repudiis,"  1566-1610;  "Tr.  du  Divorce  par  I'Adultere," 
1586;  Luther,  "Memoires,"  trans,  by  Michelet,  II,  60  and  passim;  "V.  Ehel 
Leben,"  1522;  cf.  Strampff,  op.  cit.,  364;  Richter,  "Kirchenordn.,"  1,  29.  Milton 
sent  away  his  wfe  soon  after  his  marriage  in  1643  because  "he  had  discovered 
that  she  was  stupid,"  and,  in  order  to  justify  himself,  he  wrote  a  book  upon 
the  subject  of  divorce,  which  the  Presbyterians  wanted  to  burn.  He  then 
defended  his  conduct  by  two  new  treatises,  "  Tetrachordon "  and  "Colaste- 
rion,"  1645.  Cf.  Divorces  of  Henry  VIII.  Furthermore,  a  statute  of  this 
sovereign  still  proclaimed  indissolubiHty.  Divorce  did  not  enter  into  English 
Iegi.slation  until  later  on,  without  there  being  any  general  law  to  establish  it; 
in  1666  Parliament  granted  to  Lord  Ross,  who  was  judicially  separated  from 
his  wife,  permission  to  marry  again;  henceforth  it  required  an  act  of  ParUa- 
ment,  —  that  is  to  say,  a  special  law  to  obtain  a  divorce.  The  expenses  of 
this  procedure  were  so  great  that  divorce  was  a  privilege  of  the  aristocracy. 
The  Law  of  1857  placed  it  within  the  reach  of  everybody  by  the  institution 
of  the  Divorce  Court,  which  took  the  place  of  the  ecclesiastical  tribunals  and 
Parliament  at  one  and  the  same  time:  Glasson,  "Inst.  Angl.,"  V,  90;  VI,  177; 
Lehr,  "Dr.  Angl.,"  58;  Albrecht,"  " Verbrechen  u.  Strafen  als  Ehescheidungs- 
grund,"  1903  (in  the  " Kirchenrechtl.  Abhandl."  by  Stutz);  De  Maulde,  "Pro- 
ces  politiques  sous  Louis  XII,"  1885  (unpublished). 

^  "Cor.,"  vii,  15.  Luther;  fraudulent  abandonment  outside  of  any  religious 
motive  (Strampff,  354,  381,  386,  399).  He  also  admits  of  divorce  for  serious 
causes:  Bossuet,  "Hist,  des  Variations." 

*  Melanchthon,  "De  Conjug.,"  1551;  cf.  Schneidewin,  "Tract.  Connub.," 
p.  468. 

5  Struve,  "De  Jure  Divort.,"  1724. 

^  Before  them  in  the  sixteenth  century:  Montaigne,  "Essais,"  2,  15;  Char- 
ron,  "Sagesse,"  1,  6;  Bodin,  "Rcpubl.,"  1,  3;  in  the  seventeenth  century 
Grotius,  Puffendorff,  Locke,  and  Milton  in  his  vigorous  pamphlets,  and  Que- 
vedo,  in  his  satirical  writings.  In  the  eighteenth  century  the  partisans  of 
divorce  increased  in  number:  Montesquieu,  "L.  Pers.,"  116;  "Esp.  des  Lois," 
23,  2;  Voltaire,  "Diet.  Philos.,"  see  "Mariage,  Droit  Canonique";  "M6m. 
d'un  Magistrat  dcrit  vers  1764";  Tomsaint,  "Les  Moeurs,"  1748;  Lavie, 
■"Des  Corps  PoHtiques,"  1764,  c.  8;  d'Holbach,  Helvetius,  etc.  Diderot  in  his 
"Supplement  au  Voyage  de  Bougainville,"  1773,  goes  further  than  this  and 
extols  a  sort  of  marriage  for  a  term,  about  which  the  Marechal  de  Saxe  had 
also  thought  ("Reflexions  sur  la  Propagation  de  I'Esp^ce  Humaine,  Reveries," 
1754);  cf.  the  consequences  of  "Reve  de  d'Alembert."  Helvetius,  "De 
I'Homme,"  sec.  8:  suppre-ssion  of  marriage  and  education  of  children  by  the 
State,  at  least  for  the  benefit  of  the  best,  the  most  industrious,  and  the  most 
intelligent  of  them.  Cf.  pamphlets,  which  seem  to  be  like  preparatory  work 
for  the  Revolutionary  laws,  and  the  best  known  of  which  is  "Cri  d'un  Hon- 
nete  Homme,"  1768;  the  author,  Philibert,  who  was  Praetor  at  Landau,  de- 
mands divorce  by  showing  that  it  is  not  contrary  to  the  Catholic  religion, 
that  it  is  favorable  to  good  morals  and  useful  to  the  State.    Reproduced  in 

147 


§  134]  THE   F.UIILY  [Chap.  I 

indissolubility  in  the  name  of  individual  liberty  and  natural  law.^ 
According  to  them  marriage  is  only  a  contract,  which  can  be  dis- 
solved like  any  other  (reciprocal  agreement);  it  is  a  good  policy 
to  favor  divorce,  because  ill-assorted  unions,  when  people  persist 
in  continuing  them,  remain  sterile.^  The  relaxing  ^  of  morals  and 
the  examples  of  the  Protestant  countries  ^  contributed  more  than 
any  argument  to  the  propagation  of  these  doctrines.^ 

§  135.  Revolutionary  Laws.^  —  The  Revolution,^  in  seculariz- 
ing marriage  and  declaring  that  it  constituted  merely  a  civil  con- 
tract,^ independent  of  the  sacrament  wliich  was  applicable  to 
various  religious  beliefs,  some  admitting  and  others  rejecting 
divorce,  could  not  fail  to  break  with  the  Catholic  principle  of  in- 
dissolubility.^ One  must  also  admit  that  it  was  influenced  in  this 
by  the  philosophical  notions  of  the  eighteenth  century.^° 

Cerfvol,  "L(5gisl.  du  Divorce,"  1769.  See  to  the  same  effect:  "M^m.  s.  la 
Population,"  176S  (reproduced  in  "Entretiens  sur  le  Div.,"  hy  de  V  .  .  ., 
1770);  "Cri  d'une  HonnSte  Femme,"  1770;  "Int^ret  des  Femmes  au  R^ta- 
bliss.  du  Divorce,"  1777  ("Le  Sc.  des  Maisons");'  "Contrat  Conjugal,"  1781. 
Cf.  "Code  de  THumanit^,"  1778  (see  "Divorce");  D.  Calmet,  "Sainte  Bible," 
III,  62,  1779. 

1  Montaigne,  2,  15;  Montesquieu,  "Lett.  Pers.,"  16;  Voltaire,  "Diet.  Phi- 
los.,"  see  "Manage,"  "Divorce." 

2  Ibid.,  Voltaire,  "Diet.  Philos.,"  see  "Adult&re." 

3  Italy:  "patiti,"  "cavaleiri  serventi":  Salvioli,  no.  180.  La\'ie  asks  him- 
self if  divorce  corrupts  morals,  or  if  it  is  corrupt  morals  that  are  responsible 
for  an  increase  in  divorce  Goncourt,  "La  Femme  au  XVIIP  s.";  "Hist,  de 
la  Society  Fr.  pend.  la  Revolution,  pend.  le  Directoire." 

*  To  which  de  Bonald  repUes  with  Mme.  Necker  that  Protestant  countriea 
do  not  have  divorce;  to  attribute  the  good  morals  of  these  countries  to  the  abil- 
ity to  get  divorces  is  the  same  thing  as  giving  the  credit  for  the  good  health 
of  the  inhabitants  of  a  country  to  a  doctor  who  has  never  been  called  in. 

^  However,  there  are  only  two  "Cahiers"  which  demanded  divorce  in  1798. 
("Th(5atins"  at  Paris,  Fleury-Merogis). 

«  M.  d'Anteville,  "Rev.  de  la  R6vol.,"  II,  206,  473  (1883):  Sagnac,  282; 
Damns,  "These."  1897;  Mallet,  1900;  cf.  Naquet,  op.  cit.;  "^Religion  Pro- 
priety, Famille,'^  1869. 

7  Matigny,  "Tr.  de  la  Loi  du  Divorce,"  1789;  Hennet,  "Du  Divorce," 
1789-1792  (also:  "Petition  k  I'Ass.  Nationale  par  Montaigne,  Charron,  etc.," 
1791,  extracts  from  authors  favorable  to  divorce,  with  bibliography);  Linguet, 
"L^gitim.  du  Div.,"  1789;  "Obs.,"  by  Comte  d'Antraigues,  1789;  by 
Bouchotte,  1790.  In  almost  all  these  writings  the  lawfulness  of  divorce  is 
discussed  and  maintained  from  the  religious  point  of  view.  See,  as  being 
contra  to  this:  Chapt  de  Rastignac,  "Accord  de  la  R^v^l.  et  de  la  Raison 
contre  le  Divorce,"  1790;  Barruel,  "Lettres  s.  le  Divorce,"  1790;  Mme.  Necker, 
"Reflexions  s.  le  Divorce,"  1794;  D.  Hume,  18th  Essay. 

8  The  Decree  of  Sept.  20,  1792,  maintains  that  "a  number  of  spouses  have 
not  waited  for  the  enjoyment  of  the  advantages  given  by  the  constitutional 
pro\'ision  according  to  which  marriage  is  only  a  civil  contract,  until  the  law 
should  have  regulated  the  method  and  the  effect  of  divorce." 

'  Faidcon^  "Precis  Hist,  de  I'Etabliss.  du  Divorce,"  1800. 
"  In  arguing,  as  was  done,  upon  the  inalienability  of  the  liberty  of  the  in- 
dividual and  the  natural  inconstancy  of  man,  they  should  have  admitted  of 
marriage  for  a  term,  polygamy,  etc.     Cf.  Diderot,  the  marriage  of  Saxe,  the 
Landgrave  of  Hesse  (in  the  time  of  Luther,  "Memoires,"  II,  60). 

148 


Topic  6]  DISSOLUTION   OF  MARRIAGE  [§  135 

Following  various  propositions  or  speeches  which  produced  no 
effect,  and  after  a  lengthy  discussion/  the  principle  of  divorce 
was  sanctioned  by  the  Legislative  Assembly.^  It  was  by  implica- 
tion contained  in  the  Constitution  of  1791,  which  declared  that 
marriage  was  but  a  civil  contract.  The  Decree  of  September  20, 
1792,  carried  out  the  new  constitution.  Divorce  was  allowed  in 
three  cases:  for  specified  causes,  by  mutual  consent,  and  for  incom- 
patibility of  disposition.^  In  these  two  latter  cases  the  procedure 
became  complicated;  it  allowed  of  delays  and  attempts  at  recon- 
ciliation, so  as  to  permit  of  the  spouses  reconsidering  their  deter- 
mination.  The  Decree  of  the  4th  Floreal,  year  II  (April  22, 1794), 

*  And  not  to  a  certain  extent  by  surprise.  It  was  a  mistake  to  qualify  the 
Decree  of  1792  as  an  act  of  the  Legislative  Assembly  "in  extremis,"  meaning 
to  say  by  this  that  it  had  not  been  very  carefully  thought  over. 

2  Upon  the  motion  of  Aubert-Dubayet  (Aug.  30,  1792)  c/.  the  fraternal 
exhortation  of  citizen  Chaumette,  President  of  the  Commune,  to  married 
people,  among  whom  there  were  two  couples  who  had  been  separated  whom 
the  divorce  law  reunited  ("Moniteur,"  1792,  no.  297). 

^  (A)  The  "just  causes  of  divorce"  can  be  reduced  to  two:  (a)  impossi- 
biUty  of  cohabiting,  —  that  is  to  say,  of  fulfilling  the  object  of  marriage; 
dementia;  abandonment  for  6  years;  absence  without  any  news  for  5  years; 
emigration  (merely  attested  by  an  act  that  is  general!}^  known!)  (Decree  of 
April,  8,  1792);  (6)  a  serious  infringement  of  these  conjugal  duties  by  one  of 
the  spouses;  generally  known  irregularity  of  morals,  serious  cruelty  or  in- 
sults, abandonment.  In  cases  of  this  sort  the  thing  to  do  was  to  inflict  a 
penalty  upon  the  guilty  spouse  or  to  give  the  innocent  spouse  who  was  the 
victim  of  the  accident  his  freedom;  no  delay  for  proof  was  required;  an  ar- 
bitral tribunal  verified  the  facts,  decided  to  which  of  the  spouses  the  care  of 
the  children  should  be  intrusted,  and  sent  the  parties  before  the  officer  of 
civil  status  who  was  charged  with  pronouncing  the  divorce.  (B)  The  "mu- 
tual consent"  which  had  formed  the  marriage  dissolved  it,  just  like  any  other 
contract,  to  which  it  was  mistakenly  likened;  it  was  also  a  means  of  the 
spouses  avoiding  scandalous  contests  when  there  were  reasons  for  divorce; 
however,  the  officer  of  the  civil  status  did  not  register  the  divorce  until  after 
an  attempt  at  reconciliation  had  been  made  before  an  assembly  of  the  family 
(six  relatives  or  friends)  and  a  delay  of  from  two  to  four  months,  according 
as  there  were  or  were  not  children.  (C)  Divorce  was  also  possible  upon 
the  request  of  only  one  of  the  spouses  by  reason  of  "incompatibility  of  dis- 
position"; the  spouse  who  was  not  willing  to  disclose  the  motives  that  made 
him  seek  a  separation  could  have  recourse  to  this,  so  as  to  protect  the  honor 
of  the  family;  and,  as  there  is  not,  in  fact,  any  means  of  preventing  the  spouse 
who  is  tired  of  the  marriage  from  leaving  the  other,  this  situation  which  ex- 
isted in  fact  was  made  lawful  by  permitting  the  other  spouse  to  found  a 
new  family.  But,  as  it  was  to  be  feared  that  separation  might  take  place 
on  shght  pretexts,  proofs  were  increased  in  number,  as  were  delays;  after 
three  attempts  at  reconciliation,  at  intervals  of  1,  2,  and  3  montlis,  before 
the  family  assembly,  the  officer  of  the  civil  status  pronounced  the  divorce 
within  a  week.  —  Judicial  separation  was  abolished  because  all  the  disad- 
vantages and  none  of  the  advantages  of  divorce  were  found  in  it. 

The  English  law  admits  of  judicial  separation  and  divorce  at  one  and  the 
same  time;  the  only  legal  cause  of  divorce  is  adultery,  — simple  adultery  in 
the  case  of  the  woman,  with  aggravating  circumstances  in  the  case  of  the 
husband  (abduction,  inc(!st,  cruelty  towards  the  wife,  etc.).  The  judicial 
separation  was  more  easily  obtained,  but  it  could  not  take  place  through 
mutual  consent  (at  least,  not  lawfully) :  Glasson,  Lehr,  op.  cit. 

149 


§   135]  THE    FAMILY  [Chap.  I 

(lid  away  with  every  security  against  heedless  rupture;  divorce  was 
permitted  simply  upon  the  production  of  some  public  proof  that  the 
spouses  had  lived  separate  from  one  another  for  six  months  at  least, 
or  that  one  of  them  had  forsaken  the  other  for  the  same  period  of 
time  (for  example,  the  husband  is  doing  military  service).^ 

Spouses  who  had  been  divorced  could  remarry  with  any  person, 
even  with  the  accomplice  of  the  adultery ,2  even  with  each  other. 
A  delay  of  widowhood  lasting  a  year  was  imposed  upon  them  as 
a  general  rule,  so  as  to  avoid  uncertainty  in  the  case  of  the  woman, 
and  for  both  of  the  spouses  so  as  to  prevent  immediate  marriage 
for  a  second  time  from  being  the  determining  cause  of  their  sep- 
aration (rather  a  brief  period!).  Their  possessions  were  divided, 
as  in  the  case  of  one  predeceasing  the  other,  excepting  forfeitures 
declared  against  the  guilty  spouse  in  certain  cases  of  divorce  for 
specified  reasons,  and  excepting  the  loss  of  the  advantages  given  by 
the  contract  of  marriage  by  one  of  them  to  the  other.  The  arbitrat- 
ing members  of  the  family  had  always  the  power  to  allow  to  the 
destitute  spouse  a  life  annuity  out  of  the  possessions  of  the  other. 
Each  one  of  them  contributed  according  to  the  means  possessed  to 
the  expense  of  keeping  and  educating  the  children.  The  daughters 
of  all  ages,  and  the  boys  who  were  less  than  seven  years  old,  were 
confided  to  the  mother;  the  boys  more  than  seven  years  old,  to  the 
father;  at  the  same  time  the  spouses  were  free  to  decide  this  ques- 
tion in  some  other  manner.  In  the  case  of  divorce  for  specified 
reasons  it  was  for  the  assembly  of  the  family  to  decide  the  question.^ 

The  manner  in  which  these  laws  were  applied  is  not  of  such  a 
nature  as  to  recommend  the  institution  of  divorce.  One  might 
say  that  the  French  people  of  that  period  attempted  to  show  the  ex- 
cellence of  the  Catholic  indissolubility  by  the  very  absurdity  of  their 
own  practice.  In  towns,  where  the  evil  was  almost  exclusively  felt, 
marriage  was  dissolved  for  a  whim,  as  easily  as  though  it  were  a 
mere  matter  of  the  hiring  of  service;  in  Paris,  if  we  are  to  believe 
the  preliminary  work  on  the  Civil  Code,  there  took  place  in  the  year 
IX  one  thousand  divorces  for  three  thousand  marriages.^      By 

1  Cf.  Decree  of  the  23  Vend.,  year  II  (Oct.  14,  1793);  8  Niv.,  year  II  (Dec. 
28,  1793);  4  Flor.,  year  II  (Apr.  22,  1794);  24  Vend.,  year  III  (Oct.  15,  1794). 

^  Thus  in  English  law:  Glasson,  VI,  181.  A  man  is  looked  upon  as  not 
having  anj'  honor  when,  after  having  seduced  a  married  woman,  he  does  not 
repair  the  injury  by  marrying  her.  The  canon  law  was  contrary  to  this. 
They  feared  that  the  possibility  of  marriage  might  be  an  encouragement  to 
adultery.    It  is  perhaps  just  the  contrary  that  ought  to  be  feared:  Starcke,  p.  65. 

3  Cf.  Lehr,  "Dr.  Angl.,"  p.  65. 

*  Treilhnrd,  in  Fenet,  IX,  562.  Speech  of  Carrion-Nisas  in  the  Legisla- 
ture:   in  the  year  IX  the  number  of  marriages  in  Paris  was  4000;  that  of 

150 


Topic  6]  DISSOLUTION   OF   MARRIAGE  [§  135 

1795  protestations  were  heard  in  the  Convention.  This  assembly 
was  compelled  to  suspend  the  carrying  out  of  the  Decrees  of  the  2(1 
Nivose  and  the  4th  Floreal,  year  II  ("disastrous  laws,  which  let 
loose  a  torrent  of  immorality  ").  Under  the  Directory  the  abolition 
of  divorce  for  incompatibility  of  disposition  was  demanded  and  dis- 
cussed on  several  occasions;  but  the  only  result  of  this  was  a  Decree 
of  the  first  complementary  day  of  the  year  V,  by  the  terms  of  which 
the  legal  delays  in  such  cases  were  prolonged  for  another  six  months. 

Although  discredited,  divorce  still  kept  for  itself  many  parti- 
sans; ^  it  found  a  place  in  the  Civil  Code  in  spite  of  the  criticisms 
of  the  Catholics,  such  as  de  Bonald ;  ^  but  the  new  legislation  took 
a  step  in  advance,  in  the  direction  of  reaction,  by  doing  away  with 
divorce  for  incompatibility  of  disposition,  and  by  re-establishing 
the  judicial  separation  which  had  not  been  in  existence  since  1792 
(divorce  of  Catholics). 

Rarely  met  with  under  the  Empire,^  divorce  disappeared  from 
our  laws  in  1816/  only  to  reappear  once  again  in  1884.^ 

divorces,  700;  in  the  year  X  the  number  of  marriages  was  only  3000,  and 
the  number  of  divorces  900.  —  From  Jan.  1,  1793,  to  June  17,  1795,  there 
were  5984  divorces  in  Paris;  in  1897  there  were  almost  3000  divorces  in 
Paris  and  from  9000  to  10,000  in  the  whole  of  France. 

1  Its  maintenance  was  asked  for  by  ahnost  every  court  of  appeal. 

2  In  his  book  upon  "Divorce,"  1801,  de  Bonald  reasons  more  like  a  poli- 
tician than  a  logician.  He  maintains  that  divorce  is  injurious  to  the  children 
and  the  spouses  themselves,  especially  the  wife;  that  marriage  is  not  an  or- 
dinary contract;  and,  finally,  that  if  there  are  intolerable  situations  where 
divorce  seems  to  be  indispensable,  these  are  unfortunate  exceptions  which  the 
legislator  cannot  very  well  take  into  account.  Divorce,  successive  polygamy, 
is  just  as  bad  in  the  eyes  of  Bonald  as  simultaneous  polygamy.  —  Nothing 
could  be  more  untrue;  the  law  or  Customs  can  prevent  the  abuse  of  divorce: 
c/.  Legrand,  "Le  Mar.  et  les  Moeurs  en  France,"  1880.  Starcke,  p.  99,  shows 
the  opposed  views  on  this  subject  between  the  Latin  race  and  the  Germanic 
race.    Divorce  would  be  a  benefit  in  Germany,  an  evil  in  France. 

'  The  divorce  of  Napoleon  and  Josephine  by  the  Senate  Decree  of  Dec.  16, 
1809,  —  rather  an  amusing  thing,  the  Statute  of  March  30,  1806,  Art.  7,  for- 
bade divorce  for  the  members  of  the  Imperial  family.  See  F.  Masson,  "Jose- 
phine Divorc6e,"  1901,  in  the  bibliography  of  Viollet,  449,  1;  Welschinger, 
"Le  Div.  de  Napoleon,"  1889;  Dolhagnray,  "R.  d.  So.  Ecclesiast.,"  1889, 
IX,  534  et  seq.;  Sehling,  "Z.  f.  Kirchenr.,"  1885,  1;  Duhr,  "Z.  f.  Kath.  Theol.," 
1888.  Two  motives  were  invoked  before  the  Council  of  the  Ecclesiastical 
Judges  of  Paris  in  order  to  annul  the  religious  marriage  which  had  been  se- 
cretly celebrated  before  the  coronation  by  Cardinal  Fesch:  1st,  lack  of  pub- 
licity, absence  of  the  proper  parish  priest  and  witnesses  demanded  by  the 
Church;  2d,  lack  of  consent.  Napoleon  only  having  given  a  pretended  consent 
in  order  to  please  Josephine,  —  mere  pretexts,  which  nobody  took  seriouslj^ 
(c/.  details  in  Welschinger).  The  pope  alone  would  have  been  competent, 
but  Napoleon  kept  him  prisoner  at  Savone. 

••  Without  public  opinion,  which  had  acclaimed  it  with  enthusiasm  in 
1792,  being  affected  in  any  way:  Chrestien  de  Pohj,  "Divorce,"  1815. 

^  Note  from  the  Holy  See,  "Arch.  f.  Kath.  Kirch.,"  54,  166,  and  Encycl. 
"Arcanum  Divina;,"  Feb.  10,  1880. 

151 


§  136]  THE    F.\3IILY  [Chap.  I 


Topic  7.  Second  Marriages 


136.  Barbarian  Law. 

137.  The  "Reipus." 

138.  The  "Achasius." 


§139.  Canon  Law. 

§  140.  Protection  of  the  Children   of 
the  First  Marriage. 


§  136.  Barbarian  Law.  —  The  repugnance  felt  for  second  mar- 
riages, but  merely  for  the  second  marriages  of  widows,  is  fre- 
quently found  in  the  old  legislations  wherever  the  family  adopted 
the  patriarchical  type,^  as  it  did  in  Germania.^  The  widow  did 
not  leave  the  house  of  her  husband;  she  passed  under  the  power 
of  the  new  head  of  the  family  (her  son;  the  brother  of  her  hus- 
band); her  condition  differed  little  from  that  of  an  unmarried 
woman.^  But  it  was  not  rare  to  see  her  alone  or  with  young 
children  without  any  protector.  Sometimes  her  own  family  took 
her  back,^  sometimes  she  remained  alone,  then  becoming  a  true 
head  of  the  family,  at  least  in  fact.^ 

§  137.  The  "Reipus."  ^ —  This  exceptional  situation  will  perhaps 
enable  us  to  understand  the  puzzling  provision  of  the  Salic  Law 
on  the  marriage  of  widows.  It  contained  and  sanctioned  a  regu- 
lation introduced  in  practice,  but  still  contested:  the  parties  pre- 
sent themselves  before  the  "mallus";  there  the  new  spouse  gives 
three  sous  and  one  denier,  as  the  purchase  price  (symbolic),  to  the 
maternal  relatives  of  the  widow,'^  and,  if  there  are  not  any,  then 

1  Animist  beliefs:  Indian  widow:  Grimm,  451;  Procope,  "De  B.  G.,"  2,  14 
("Herules");  Michelet,  •'Orig.,"  54.  Cf.  Jewish  levirate:  Flach,  "Le\'irat,"  190. 
In  many  localities  charivari  (" concerrade "  at  Naples).  Fourteenth  century: 
Faber,  "Inst,  de  Jug.,"  §  "Injiu-ia";  Freminville,  see  "Diet,  de  Police,"  (pun- 
ished by  the  Ordinances  and  Orders);  Salvioli,  336;  Fertile,  III,  365,  n.  23. 

2  Tacitus  "Germ.  "  19. 

3  "L.  Sax.,"  7,  3.'  Cf'.  "Rothar.,"  182;  "Capit.,"  ed.  Bor.,  I,  13,  c.  25  et 
seq.',  Amira,  "Erbenfolge,"  32.    As  to  Prankish  law,  cf.  post,  "Guardianship." 

*  "Sax.,"  7,  3;  "Roth.,"  182.  The  widow  who  cannot  or  will  not  remarry 
remains  under  the  "mundium"  of  the  relatives  of  the  husband,  but  if  they 
maltreat  her  she  can  return  to  her  own  people,  and,  if  there  are  none  of  her 
own  people,  place  herself  under  the  "mundium"  of  the  king. 

*  Kovalewsky,  p.  174;  Dareste,  "Etudes,"  p.  90. 

«  "L.  Sal.,"  44.  Cf.  Lombard  Formula?:  Thevenin,  "Textes,"  no.  47; 
"Burg.,"  24,  60;  "Wis.,"  3,  2,  1;  "Sax.,"  42;  "Roth.,"  182;  Lahoulaye,  "Cond. 
des  Femmes,"  160;  Pardessus,  "L.  Sal.,"  687;  Schroeder,  "Gesch.  d.  Ehel. 
Gut.,"  I,  56;  "D.  R.  G.,"  299;  Sohm,  "Eheschl.,"  63;  "R.  u.  Ger.,"  67,  370; 
Amira,  "Erbenf.,"  30;  Dargun,  "Mutterrecht,"  141;  Lamprecht,  "D.  Wirth- 
schafts  1.,"  I,  32;  Peters,  "De  Reipus,"  1830;  Weinhold,  "Z.  f.  Deut.  R.," 
1849,  539;  Dareste,  "Etudes,"  409;  Hnhicht,  16;  Glasson,  III,  29;  Brissaud, 
"Rech.  s.  la  Tutelle  des  Femmes,"  p.  18;  Ficker,  "Erbenf.,"  Ill,  525. 

^  And  not  the  husband  of  the  deceased.     The  question  is  one  which  haa 

152 


Topic  7]  SECOND  ]VL\RRIAGES  [§  138 

to  the  relatives  of  her  first  husband,  provided  that  they  are  not  the 
heirs  of  the  latter}  This  pecuHar  institution  of  the  "reipus"^ 
seems  to  be  less  a  trace  of  the  primitive  matriarchate  ^  than  an 
imitation  of  ordinary  marriage,  arranged  in  such  a  manner  as 
to  leave  the  widow  independent.  A  fictitious  "mundoaldus"  to 
proceed  with  the  betrothals  and  receive  the  symbolic  purchase 
price  was  selected  for  her;  at  the  same  time  care  was  taken  to 
choose  him  from  among  those  who  could  not  exercise  an  actual 
"mundium"  over  her;  the  real  "mundoaldus"  might  not  be  willing 
to  agree  to  the  marriage  of  the  widow  for  fear  of  losing  the  advan- 
tages to  be  gained  from  her  marriage  portion.^  The  Capitulary  of 
819,  Chap.  8,  made  widows  subject  to  the  common  law  by  com- 
pelling them  to  provide  themselves  with  the  consent  of  their  rela- 
tives (natural  family).^ 

§  138.  The  "  Achasius."  —  In  the  capitularies  which  were  added 
to  the  Salic  Law,  the  regulations  for  the  marriage  of  widows, 
which  were  already  sufficiently  difficult,  became  still  more  com- 
plicated. It  was  not  enough  that  the  new  husband  should  pay 
the  "reipus";  the  widow  must  furthermore  negotiate  with  the 
relatives  of  her  first  husband  "ut  pacem.habeat''  and  give  up  to 

been  very  much  discussed:  Geffcken,  p.  171.  In  the  other  direction  they  argue 
about  the  words  "superiores  nominati,"  §  9,  and  the  mention  of  the  husband, 
§  8,  would  be  accounted  for  by  the  contrast  with  the  "frater"  of  §  7. 

1  In  the  absence  of  these  formahties  a  composition  of  63  "sous"  is  due  to 
the  creditors  of  the  "reipus,"  but  the  marriage  is  not  annulled. 

2  Etymology:  "Reif,"  "Ring,"  "Anneau,"  and  by  extension  "argent" 
(money).  AceorcUng  to  Meyer,  "Badisch.  Hochzeitsbrauch,"  1896,  "Reipus" 
equals  "Seilgeld."  "Z.  S.  S.,"  1898;  G.  A.,  195.  Cf.  as  to  this  word  and  as 
to  "Achasius,"  Kern,  in  Hessels,  §  270;  see  Geffcken. 

'  Dargim,  "Mutterrecht,"  pp.  141-151.  According  to  this  opinion  why  pay 
the  "reipus"  to  the  relatives  of  the  husband? 

*  Sohn,  "Eheschl.,"  63,  sees  in  the  "reipus"  a  penalty  against  second 
marriages.  Cf.  Heusler,  II,  208,  307;  Ficker,  " Erbenf olge,"  I,  512;  III,  531. 
But  why  pay  this  fine,  if  it  is  one,  to  the  relatives  enumerated  by  the  law? 
Habicht,  "Verlob.,"  19.  One  can  scarcely  see  in  this,  with  Amira  and  Lam- 
j)recht,  a  composition  for  the  loss  of  the  "Gerade,"  for  the  "Gerade"  came 
from  other  relatives.  —  A  remarkable  analogy  with  the  Theodosian  Code,  3,  7, 
1  ("shown  us  by  Brunner) :  the  consent  of  the  relatives  who  would  inherit  from 
widows  was  not  required  for  their  entering  into  second  marriages.  But  there 
is  no  question  of  any  payment  analogous  to  the  "reipus,"  nor  of  the  classi- 
fying of  the  relatives  like  that  found  in  the;  Salic  Law.  The  celebrated  Lom- 
bard formula  of  the  eleventh  century  {Cg,nci(mi,  "L.  Barb.,"  II,  476)  assumes 
contrarily  to  the  Salic  Law,  a  "reparius"  (of  the  name  of  Seneca)  having  a 
"mundium"  over  the  widow  (Sempronia,  widow  of  Thersitus,  and  daughter  of 
Cicero);  this  is  a  conceit  of  an  erudite  notary:  Laboulaye,  p.  162.  Cf.  Hatch., 
182;  Thevenin,  no.  48. 

*  Edict  of  Chilperic,  c.  2,  seems  to  do  away  witli  the  "reipus,"  which  would 
account  for  the  fact  that  the  formula?  do  not  mention  it  (any  more  tiian  they 
do  the  "achasius"),  but  they  would  render  useless  the  Capitulary  of  819;  it 
is  true  that  it  does  not  make  any  innovation. 

153 


§  138]  THE    F.i.MILY.  [Chap.  I 

them,  as  an  "achasius,"  ^  about  a  tenth  of  the  marriage  portion 
which  had  been  set  aside  for  her  by  him,  and,  furthermore,  if  she 
has  no  children,  a  bed  with  bedding,  the  bedding  of  a  quahty  corre- 
sponding to  this  bed,  an  upholstered  stool,  and  chairs  which  she 
took  with  her  from  the  house  of  her  father;  in  default  of  these, 
she  loses  two-thirds  of  her  marriage  portion  and  pays  sixty-three 
sous  to  the  treasury.^  The  marriage  of  a  widower  for  the  second 
time  gave  rise  to  a  regulation  of  the  same  sort :  he  keeps  the 
marriage  portion  until  the  children  come  of  age;  if  he  has  no  chil- 
dren he  gives  up  two-thirds  to  the  nearest  relatives  of  the  wife  in 
return  for  a  portion  of  the  furniture;  assuming  that  they  refuse 
to  give  up  the  furniture  to  him,  they  are  only  allowed  one-third  of 
the  marriage  portion.^  Concerning  the  interests  of  the  children 
by  the  first  wife,  the  law  forbids  the  spouse  who  has  married  a 
second  time,  either  widower  or  widow,  to  alienate  the  (Germanic) 
marriage  portion  of  the  wife  to  their  prejudice."^  The  Edict  of 
Chilperic,  Chap.  4,  simply  divides  the  marriage  portion  in  half 
between  the  widow  or  the  widower  and  the  relatives  of  the  de- 
ceased husband  or  of  the  predeceased  wife,  when  there  are  no 
children.^ 

§139.  Canon  Law. — On  the  question  of  second  marriages 
the  Christian  Church  is  found  to  be  rather  in  accord  with  the 
spirit  of  the  Germanic  law  than  with  the  Roman  legislation  of 
the  Empire,  which  drove  citizens  to  marriage.®  Without  going 
so  far  as  to  condemn  them,  it  looked  upon  them  with  disfavor.^ 
Marriage  "cum  unica  et  virgine"  alone  symbolizes  in  its  eyes  the 
union  of  Christ  with  the  Church,  and,  furthermore,  it  was  a  state 
inferior  to  that  of  celibacy.  Second  marriages  were  tolerated  as 
a  sort  of  second  offense,  and  were  punished  by  means  of  certain 

1  Pardessus,  "L.  Sal.,"  Geffcken,  id.,  p.  239  (bibl.). 

2  It  takes  away  from  the  enjoyment  of  the  marriage  portion:  "inde  irsB." 
^  Except  there  be  an  agreement  to  the  contrary  made  previous  to  it  by 

"adfatimus." 

*  Cf.  infra,  "Dower"  (rights  of  the  children),  "Forfeiture." 

^  "Sal.,"  72;  "Alam.,"  55;  "Bai.,"  15,  8;  cf.  "Roth.,"  182;  "M.  G.  H.," 
"L.  L.,"  IV,  333;  Thevenin,  no.  48;  "Wis.,"  4,  2,  14;  Pajrien,  19;  "Burg.," 
24,  62,  69,  42;  "Alam.,"  55. 

^  Reaction  already  under  the  Lower  Empire,  owing  to  the  influence  of 
Christian  ideas,  but  especially  with  the  object  of  guaranteeing  the  pecuniary 
interests  of  children:  Meynial,  p.  63;  Boissonade,  "Hist,  des  Droits  de  I'Epoux 
Surv.,"  1874. 

'  Paul,  "1  Cor.,"  vii;  "Nic6e",  325,  c.  8;  Goffredus,  "Summa,"  p.  194 
(cites  St.  Jerome);  Hostiensis,  "Summa,"  IV,  sec.  n.  The  Eastern  Church 
forbade  fourth  marriages,  and  even  third  marriages  between  persons  who  were 
more  than  forty  years  old  and  who  had  children  by  their  first  marriages :  Zacha- 
rioe,  "Jus  Grseco-Rom.,"  Ill,  227;  Zhisman,  pp.  308,  449;  Perrone,  III,  98. 

154 


Topic  7]  SECOND  MARRIAGES  [§  139 

penalties:  (a)  penances;  ^  (6)  incapacity  to  receive  sacred  orders;  - 
(c)  no  nuptial  benediction.^  But  if  the  canon  law  discouraged 
them  from  marrying,  the  Feudal  law,  which  was  more  in  harmony 
with  their  natural  inclinations,  made  it  a  duty  for  widows  to  re- 
marry in  their  own  interest,  in  order  that  they  should  not  be  de- 
spoiled of  their  possessions,  and  in  the  interests  of  the  Feudal 
lord,  so  that  the  service  of  the  fief  should  remain  assured.''  Per- 
haps it  is  as  a  consequence  of  this  conflict  between  the  Feudal 
customs  and  the  Christian  spirit  that  the  Church,  in  a  manner 
contrary  to  the  Roman  law,  did  not  compel  the  widow  to  await 
the  expiration  of  the  year  of  mourning  under  penalty  of  disgrace 
before  she  should  marry  a  second  time."  The  Parliament  of 
Paris  was  of  opinion  that  the  Decretals  had  not  only  abolished  the 
disgrace,  but  the  other  penalties  attached  to  second  marriages,^ 
whereas,  in  countries  of  written  law  they  did  not  cease  to  be  ap- 
plied: ^  1st.  The  woman  who  remarries  (or  misappropriates)  within 
the  year  of  mourning  loses  all  the  privileges  of  the  married  woman 
and  all  the  gifts  given  her  by  her  husband.^  2d.  If  there  are  no 
children  by  the  first  marriage,  the  woman  cannot  give  her  second 
husband,  by  way  of  marriage  portion,  or  bequeath  to  him  by  will, 
more  than  one-third  of  her  possessions.  3d.  The  wife  is  incapable 
of  inheriting  ''ab  intestat."  from  her  collateral  relatives  beyond 
the  third  degree,  and  of  receiving  any  gifts  "causa  mortis"  from 
strangers.^  These  were  the  penalties  for  marriage  within  the  year 
of  mourning;  ^°  the  widow  w^ho  marries  a  second  time  after  the 
year  of  mourning,  is  simply  deprived  of  the  ownership  of  the  por- 
tion of  the  survivor  which  came  to  her  from  her  first  husband 

1  C,  31,  q.  1.  c.  8  {Gratian).  —  Cf.  "Orient,"  "N6oc(5sar^e,"  c.  3;  "Lao- 
■dic6e,"  c.  1;  "Nov.,"  90  of  I.eo.  —  Van  Espen,  2,  15;  Sanchez,  7,  81-91. 

2  As  for  the  man  who  remarries,  and  the  man  who  marries  a  widow  or  a 
young  girl  who  is  not  a  virgin,  they  are  qualified  as  bigamists:  Gratian,  D. 
33,  c.  2  (a.  490);  34,  9;  Dig.  X,  1,  21,  2;  "VI,"  3,  2,  1. 

'  "Faux  Capit.,"  2,  130,  408;  Dig.  X,  4,  26,  1,  3. 

*  It  is  the  same  thing  with  widows  of  artisans  and  peasants:  Stobbe,  §  24S. 
B  Dig.  3,  2,  10  and  11;  "Petrus,"  1,  38;  "Pcenitent.  Theod.,"  12,  9.  —  In 

the  nineteenth  century  the  Roman  rule  had  fallen  into  disuse:  Anscgise,  IV 
17;  "Cap.,"  V,  106,  233,  222;  Dig.  X,  4,  221,  4;  Italy:  "Const.  Leg.  Pi.s.,"  23, 
"Const.  Amalf.,"  10.  — As  to  proof  of  the  death  of  the  spouse,  see  Dig  X, 
4,  1,  19;  4,  21,  2;  C,  34,  q.  1,  c.  2;  Beaumanoir,  57,  11;  "Jost.,"  220. 
6  Laur.  on  Loysel,  175;  bibl.  in  Garonis,  "De  Pcenis  2  Nub." 
^  Motives  of  public  honesty,  fiction  of  the  marriage  continued  during  the 
year  of  mourning:  "Ass.  de  J6rus.,"  "C-.  d.  B.,"  166. 

*  "Cod.  Theod.,"  3,  8,  1.  Loss  of  the  poor  person's  share  and  of  the  right 
of  inheritance:  "F.  de  Nav.,"  4,  3,  6. 

9  Gifts  "inter  vivos"?  "Glose,"  s.  1,  1;  "Cod.  Just.,"  "De  Sec.  Nupt."; 
Cujas,  "S.  Nov.,"  22,  c.  22. 
10  Cf.  Law  of  Sept.  20,  1792,  3,  2. 

155 


§  139]  THE    FAMILY  [Chap.  I 

(or  of  gifts  and  legacies   made   on   condition  of   not  marrying 
again). 

§  140.  Protection  of  the  Children  of  the  First  Marriage.^  —  To 
these  penalties  were  added  in  countries  of  written  law,  provisions 
drawn  in  the  interests  of  the  children  by  the  first  marriage,  from 
the  laws  "Feminse  quae,"  "  Generaliter "  and  "Hac  edictali."  ^ 
The  Edict  of  July,  1560,  made  them  apply  to  the  whole  kingdom, 
because,  as  is  said  in  the  preamble,  widows  who  have  children, 
not  acknowledging  that  they  are  sought  after  rather  for  their 
possessions  than  for  their  persons,  give  their  new  husband  enor- 
mous gifts.""  These  scandalous  gifts  were  formerly  more  difficult 
to  make  in  countries  where  Customary  law  was  in  force;  it  is  for 
this  reason,  undoubtedly,  that  jurisprudence  had  not  felt  the  need 
of  re-enacting  the  Roman  laws.  First  clause  of  the  Edict.^  Widows 
are  forbidden  to  give  their  personal  possessions  ^  to  their  new 
husband  ®  beyond  the  amount  of  the  share  of  a  child  whose  share 
is  smallest,^  under  penalty  of  having  them  restored.^  Second  clause 
of  the  Edict.  Nullity  of  the  grant,  if  possessions  acquired  from 
the  predeceased  spouse  are  given  by  widows  or  widowers  to  the  ad- 
vantage of  their  new  spouse;^  these  possessions  should  be  reserved 

'  Guyot,  Ferrihre,  see  "Noces"  (bibl.);  Boucher  d'Argis,  "Tr.  des  gains 
Nuptiaux,"  1738;  Dujnn,  "Peines  des  Secondes  Noces,"  1743;  Astruc,  id. 
1750;  Cambolas,  id.  (cited  by  Astruc,  p.  7);  Champagne,  "Tr.  des  Secondes 
Noces,"  1720;  Launoy,  "Inst.,"  2,  7;  Lebrun,  "Succ,"  2,  6;  Ricard,  3,  9; 
Pothier,  VI  and  VIII;  D'Aguesseau,  ed.  1772,  IV,  25;  Boissonade,  "Dr.  du 
Conj.  Surv."  (bibl.);  "These,"  1887;  Stobbe,  §  248;  Bntz,  "Cod.  Belg.,"  552; 
Bourjon,  11,  191. 

2  "Cod.  Just.,"  5,  9,  3,  5,  6;  cf.  "Cod.  Theod.,"  2,  21,  1,  2  (358);  3,  8,  2 
(832);  "Nov."  7  (469). 

'  The  Edict  was  enacted  on  the  occasion  of  the  marriage  of  Catherine 
d'Aligre. 

4  "L.  Hac  Edictiali"  ("Cod.  Just.,"  "De  Sec.  Nupt.,"  6),  in  469;  Civil 
Code,  1098.  —  The  Orders  appHed  this  rule  to  widowers,  who  were  not  men- 
tioned in  the  Edict  because  it  had  been  enacted  with  reference  to  the  mar- 
riage of  a  widow. 

^  Even  by  contract  of  marriage  (clauses  of  conversion  of  real  property  into 
personal  property,  etc.):  Denisart,  see  "Noces";  Order  of  Jan.  29,  1658; 
Civil  Code,  1496. 

^  Either  directly  or  by  means  of  persons  interposed  (such  are  presumed 
to  be  the  descendants  or  ascendants  of  the  new  spouse) :  Denisart,  see  "Noces," 
no.  20.  The  old  law  does  not  distinguish  between  gifts  made  by  persons 
interposed  and  indirect  gifts;  a  reduction  of  them  took  place  in  both  cases: 
cf.  Civil  Code,  1099. 

'  Louet,  "N,"  3,  22  (Order  of  1651).  Several  marriages;  all  the  new 
husbands  together  only  have  a  right  to  the  share  of  one  child:  Pothier, 
no.  566. 

8  The  reduction  affects  third  parties  and  is  for  the  benefit  of  the  children 
of  the  second  marriage.  In  countries  of  Customs  they  follow  the  "Lex  Quo- 
niam,"_"Cod.  Just.,"  "De  Sec."  no.  9,  rather  than  the  "Nov.,"  22,  c.  27, 
which  is  applied  in  countries  of  written  law. 

9  "Lex  Feminae  Quae,"   "Cod.  Just.,"  "De  Sec.  Nupt.,"  3  (in  382)  and 

156 


Topic  7]  SECOND  MARRIAGES  [§  140 

for  the  children  of  the  first  marriage.^  Tliese  provisions  were  per- 
fected by  Art.  279  of  the  Custom  of  Paris,^  which  decided  that 
acquisitions  of  property  made  jointly  with  the  first  husband  could 
not  be  given  by  widows  to  their  next  husbands;  and  by  Art.  182 
of  the  Ordinance  of  Blois,  enacting  penalties  against  widows  who 
should  remarry  with  persons  who  were  unworthy  of  them,  such 
as  their  men  servants.^  Of  this  legislation  only  the  first  clause  of 
the  Edict  of  1560  remains.^ 

Another  effect  of  second  marriages  was  to  restrict  the  rights  of 
parents  over  the  persons  of  their  children;  this  will  be  dealt  with 
later  on  in  connection  with  paternal  power  and  guardianship. 

"Generaliter,"  ibid.,  5  (in  444).  Cf.  "Nov.,"  2,  1,  and  "Nov.,"  22,  25.  Cf. 
rights  of  children  with  regard  to  dower;  "F.  de  Beam,"  Art.  270;  Pothier, 
nos.  605  et  seq. ;  Sanchez,  7,  89. 

1  Substitution  in  trust  for  the  benefit  of  all  the  children  of  the  first  mar- 
riage without  any  distinction  and  without  any  favoring  of  any  one  of  them. 

2  "Orleans,"  203.  Extended  to  include  the  husband  (March  4,  1697, 
Order  of  the  Parliament  of  Paris).  The  children  of  the  second  marriage  took 
a  share  in  this  jointly  acquired  property  with  those  of  the  first  marriage. 

^  Cancelhng  of  the  direct  or  indirect  advantages  given  by  widows  to  their 
new  husbands;  prohibition  of  these  advantages  from  the  time  of  the  contract 
of  marriage:  "Bretagne,  N.  C,"  54;  Cambolas,  "Decis.,"  2,  38  ("Arr.  Tou- 
louse," 1597). 

<  Civil  Code,  1098.  Law  of  the  17th  Niv.,  year  II,  Arts.  13  and  61,  im- 
pliedly repealed  the  Edict  of  1560.    Cf.  Chabot,  "Quest.  Transit.,"  see  " Noces." 


157 


§  141]  THE    FAMILY  [Chap.  I 


Topic  8.     Union  Other  than  Marriage 

§  141.  In  General.  I  §  143.  Morganatic  Marriages. 

§  142.  Concubinage.  | 

§  141.  In  General.  —  Our  law  only  knows  one  kind  of  marriage, 
the  same  for  everybody.  In  the  old  legislations,  alongside  of  mar- 
riage properly  so  called,  it  is  not  a  rare  thing  for  unions  of  a  lower 
order  to  exist.  Thus  it  is  that  we  are  able  to  distinguish  in  the 
Barbarian  law:  marriage  between  free-born  people  of  an  equal  sta- 
tion in  life,  with  or  without  "mundium,"  concubinage,  and  union 
with  slaves.^  Between  slaves  the  Roman  "  contubernium "  gave 
way  to  a  true  marriage,^  subject  for  a  long  time,  however,  to  the 
intervention  of  the  master.^  The  union  of  free  persons  with  slaves 
was  treated  in  a  different  manner,  according  to  circumstances. 
(a)  The  intercourse  of  a  free  man  with  the  slave  of  another  was 
punished  (attempt  upon  property),  excepting  if  the  master  gave 
his  consent."^  The  free  man  lost  his  liberty:  "servus  trahit  ad  se 
francum."  ^  (b)  The  intercourse  of  a  free  woman  with  the  slave 
of  another  was  also  punishable;  ^  loss  of  property  was  the  usual 
consequence,  as  is  shown  by  the  formulae  of  the  "Epistolse  con- 
culcatorise"  ^  by  means  of  which  the  master  gives  up  the  right  of 

1  Kohne,  "  Geschlechtsverbindungen  der  Unfreien  im  Frank.  R.,"  1888 
("Unters."  by  Gierke);  V.  Sicherer,  " Personenstand  u.  Ehschliess.,"  1879 
"Sachsensp.,"  51. 

2  Excepting  effects  which  were  incompatible  with  the  status  of  slavery 
"Bai.,"  8,  12;  Roziere,  399;  Pardessus,  "Dipl.,"  I,  198.  Commonly  used 
expressions:  "matrimonia,"  "conjugia,"  "uxor."  "Orleans,"  IV,  541,  c.  24 
"Capit.,"  ed.  Bor.,  I,  36,  c.  15;  Kohne,  p.  9. 

^  Required  for  a  long  time  by  the  Church  ("Orleans,"  IV,  541,  c.  24) 
under  penalty  of  annulment  of  the  marriage.  The  Church  is  compelled  to 
prevent  the  master  from  separating  his  slaves  after  they  have  been  validly 
married:  "Chalons,"  813,  c.  30:  formal  prohibition;  "Edit  Pist.,"  c.  31; 
c/.  "Cap.  Heristal,"  779,  c.  19. 

4  "Sal.,"  13  and  25  (notes  hy  Geffcken);  Kohne,  p.  25;  "Rib.,"  58,  12,  13. 
Annulment  of  marriage  as  'in  the  preceding  case  for  lack  of  the  master's  con- 
sent: "Edit  Pist.,"  31.  Mistake  as  to  station,  see:  "Impediments";  "Cap.," 
I,  38  and  40,  c.  7  and  6.  Case  where  one  of  the  spouses  becomes  a  slave. 
C/.  "Divorce,"  "Cap."  803,  c.  8  (I,  114):  the  husband  who  sells  his  liberty 
by  giving  himself  as  a  pledge  does  not  by  this  means  affect  the  liberty  of 
his  wife  or  children. 

5  "Rib.,"  58,  14,  15;  "Cap."  819,  c.  3.  But  not  at  Saint-Germain  dea 
Pres:  Gu&rard,  "Polypt.,"  I,  392,  969.     Of.  Kohne,  p.  32. 

6  "Sal.,"  13,  7;  "Cod.  Th6od.,"  4,  11,  1  ("Ad  sc.  Claudianum"). 

'  Rozilire,  "Form.,"  101  et  seq.;  "Rib.,"  58,  16;  Geffcken,  "L.  Sal.," 
135. 

158 


Topic  8]  UNION    OTHER   TH.\N   MARRIAGE  [§  142 

treating  the  woman  and  her  children  as  slaves,  (c)  The  free 
woman  who  marries  her  own  slave  is  severely  punished.^  (d)  The 
man  who  contracts  a  permanent  union  with  his  own  slave  thereby 
contracts  a  sort  of  inferior  marriage,  which  differs  very  little  from 
concubinage.- 

§  142.  Concubinage,^  practised  at  Rome  and  in  the  majority 
of  the  old  legislations,  was  not  unknown  in  Germanic  law.^  Prop- 
erly speaking,  it  consisted  in  the  union  of  the  free  man  with  a 
woman  who  was  also  free,  but  of  lower  condition,  especially  '\\dth 
a  f reed-woman.  It  was  to  be  distinguished  from  marriage,  in  that 
it  could  be  more  easily  dissolved,^  and  in  that  the  concubine  did 
not  acquire  the  rank  of  her  husband.  In  Rome  the  concubine 
was  ordinarily  recognized  by  the  absence  of  "libellus  dotis";  ^  in 
the  same  way,  in  Barbarian  law,  the  "pretium  nuptiale"  or  Ger- 
manic marriage  portion  is  lacking  in  the  case  of  concubinage, 
which  is  entered  into  without  any  of  the  solemnities  which  are 
customary  in  the  case  of  marriage;  ^  neither  the  wife  nor  the  chil- 
dren have  the  same  rank  as  the  father.^  It  was  allowable  in  olden 
times,  even  for  married  men,^  but  this  Constantine  forbade   in 

1  "Sal.,"  13,  7  et  seq.  Loss  of  freedom,  "Cap."  5:  confiscation  of  all  her 
property;  she  shall  be  "aspellis"  ("wargus"),  outside  of  the  law.  The  slave 
shall  perish  upon  the  wheel;  "Cap."  819,  c.  3.  —  "Rib.,"  58,  18  {Kohne,  p.  15) : 
a  sword  and  a  distaff  are  offered  to  the  woman;  if  she  takes  the  sword  she 
must  kill  the  slave,  if  she  chooses  the  distaff  she  must  share  his  fate.  This 
alternative  is  only  possible  when  asked  for  by  the  relatives. 

2  "Roth.,"  222;  "Liut.,"  106;  Fr.  de  Gaudenzi,  8  (Zeumer,  "Leges 
Wisigoth.,"  p.  317);  Kohne,  p.  25;  Amira,  p.  161,  contrasts  the  "Friede" 
with  the  "Kebse"  kept  in  the  house,  and  both  of  these  with  the  lawful  wife. 

^  Du  Cange,  see  "Concubina";  Guyot,  see  "Concubinage";  Lutkens, 
"Polygamie  u.  Konkubinat.,"  1723;  Thorlacius,  "Boreal,  vet.  Matrim.," 
1784;  Stobbe,  §  212;  Fertile,  §  114.  As  to  the  "Massipia"  of  the  Bearnese 
law  cf.  Lagrhze,  "Dr.  dans  les  Pyr^n^es,"  p.  375. 

*  Fr.  de  Gaudenzi,  8;  "Roth.,"  154  et  seq.;  "Grim.,"  5;  "Liut.,"  106; 
Roziere,  130. 

5  Brunner,  "Z.  S.  S.,"  1896,  "G.  A.,"  12.  A  union  which  is  pubUc  and  last- 
ing, but  the  maintaining  of  it  depends  upon  the  husband  ("Kebsehe,"  allu- 
sion to  the  fact  that  the  wife  was  a  serf  or  only  semi-free);  Kovalewsky, 
"Cout.  Contemp.,"   155. 

6  Girard,  "Manuel,"  151;  Esmein,  I,  108;  "Cod.  Just.,"  5,  26,  1;  Paul, 
2,  20,  1;  "Cod.  Just.,^'  7,  15,  3;  "Nov.  Just.,"  18  and  89. 

'  In  869  Charles  the  Bald  caused  Richilde,  sister  of  Count  Boson,  to  be 
brought  to  him  and  "in  concubinam  accepit";  in  870,  "  concubinam  suam 
Richildem  desponatam  atque  dotatam  in  conjugem  accepit";  "M.  G.  H., 
S.  S.,"  I,  486.  William  Long-Sword  marries  his  wife  "more  danico,"  that 
is, to  say,  without  solemnities,  "usu":  Dareste,  "Etudes,"  pp.  309,  326. 
"8  Letter  of  Leo  I  to  Rusticus,  458:  Gratian,  C,  32,  q.  2,  cap.  12. 

*  Contrary  argument  of  the  ecclesiastical  prohibitions.  Scandinavians: 
Amira,  "Recht,"  pp.  162,  165;  "Saga  de  Nial.  Oppositions  e.stablished  by 
Ficker  between  the  law  of  the  Western  Alemanni  and  that  of  the  Eastern 
Alemanni,  the  latter  being  the  only  ones  who  admitted  concubinage.  Op- 
posed to  tliis  view:  Brunner,  op.  cit.,  31;  cf.  Salvioli,  §  183;  Schroeder,  302. 

159 


§  142]  THE   F.UIILY  [Chap.  I 

Rome.^  Christianity  condemned  both  the  concubinage  of  mar- 
ried people  ^  and  that  of  unmarried  people,^  a  frail  liaison,  where 
the  man  and  the  woman  were  too  far  apart,  owing  to  their  condi- 
tion, to  be  a  realization  of  the  image  of  the  mystical  marriage  of 
Christ  and  the  Church;  and  it  rejected  every  union  between  the 
sexes  outside  of  marriage  itself.^  But  concubinage  had  become 
so  firmly  rooted  in  the  Customs  that  it  persisted  in  many  localities, 
and  was  even  tolerated  by  the  civil  law.  This  accounts  for  the 
fact  that  it  is  found  organized  in  the  "Siete  Partidas"  under  the 
name  of  "barragania."  ^  Against  priests  who  practised  concu- 
binage the  Church  had  need  of  the  efforts  of  its  greatest  pontiffs.^ 
In  the  sixteenth  century  legal  concubinage  had  almost  everywhere 
disappeared;  there  remained  nothing  but  concubinage  as  a  simple 
union  in  fact,  against  which  the  Council  of  Trent  let  loose  its  aus- 
terity,'^ commanding  the  bishop  to  give  three  admonitions  to  the 
man  and  the  woman  who  live  together  without  being  married, 
after  which  they  shall  be  excommunicated  by  the  ordinary.^ 
Secular  jurisdiction,  which  is  more  indulgent,  does  not  inflict  any 

1  "Capitul.,"  I,  202,  c.  5;  376,  c.  37;  II,  45,  c.  35;  189,  c.  12;  190,  c.  15.— 
As  to  the  Roman  law  of  the  barbarian  period,  cj.  "Cod.  Theod.,"  4,  6,  4  and 
6;  "L.  Wisig.,"  ed.  Zeumer,  p.  318,  c.  3;  "Cod.  Just.,"  5,  27,  2  (3^  ounce  to 
the  concubine);  Papien,  37,  4  (one  ounce  and  3^  ounce);  "Int.  Nov.  Theod.," 
c.  1.  The  constitution  to  which  reference  is  made  has  not  come  down  to  us: 
"L.  Wis.  Rec,"  3,  5,  5;  "Z.  S.  S.,"  1886;  "G.  A.,"  30. 

2  "Capit.,"790,  c.  5  (1,202). 

2  Not  without  some  hesitation.  The  celibate  who  has  only  one  concubine 
is  not  excluded  from  the  communion,  according  to  the  First  Council  of  To- 
ledo: Bruns,  I,  206;  Gratian,  D.,  34,  c.  4;  Tribur,  895,  c.  36  [Mansi,  18, 
151):  that  he  who  is  not  married  shall  content  himself  with  a  single  concu- 
bine: "Mayence,"  851,  c.  15. 

■*  "Const.  Apost.,"  8,  32;  Gratian,  D.,  34,  c.  5;  Augustine,  "Serm.,"  289, 
4;  Gratian,  C,  32,  q.  2,  c.  11-12  (letter  of  Pope  St.  Leo  in  458  to  Rus- 
ticus  of  Narbonne).  —  Moreover,  from  the  day  when  the  theory  of  marriage 
by  mutual  consent  triumphed  the  majority  of  unions  with  concubines  be- 
came true  marriages:  Michelet,  "Origines,"  p.  41;  P.  Fournier,  "B.  Ch.," 
1900,  p.  89  et  seq.  The  register  of  the  ecclesiastical  judge  of  Cerisy,  how- 
ever, shows  us  many  relations  of  concubinage  which  were  transformed  into 
marriages. 

^  IV,  14  (duty  of  fidelity,  paternal  filiation  legally  established,  only  one 
concubine,  no  impediment  to  the  marriage  of  people  living  in  a  state  of  con- 
cubinage). Cf.  "massipia"  or  concubines  taken  before  a  notary  in  Navarre: 
Cujas,  "Cod./'  5,  26;  Giraud,  I,  233,  113;  Lagreze,  "Hist,  du  Dr.  de  Nav.," 
II,  188.  Itahan  Statutes  of  the  thirteenth  and  fourteenth  centuries:  Salvioli, 
§  183;  Murioz,  "Fueros,"  p.  536,  etc. 

8  Dig.  X,  "de  fil.  Presbyt.";  Guyot,  see  "C^libat."  In  the  literary  docu- 
ments of  the  twelfth  and  thirteenth  centuries  the  priest  is  shown  as  living 
with  a  "priestess,"  e.g.,  Fable  of  Constant  Duhamel:  Luchaire,  "Acad.  Sc. 
Mort.,"  1901,  581. 

7  Esmein,  II,  310. 

8  Register  of  the  ecclesiastical  judge  of  Cerisy,  passim;  Benedicti,  "Index," 
see  "Concubina";  Hiricourt,  "E.,"  24,  25;  Van  Espen,  I,  497;  II,  65. 

160 


Topic  S]  UNION    OTHER   THAN   MARRIAGE  [§  143 

penalty  upon  them;  this  sin  does  no  wrong  to  anybody,  says 
Ferriere.  It  was  deemed  sufficient  to  annul  gifts  between  people 
living  in  concubinage/  without  which  they  would  have  had  an 
advantage  over  married  people.^ 

§  143.  Morganatic  Marriages.^  —  The  idea  that  marriage  with 
all  its  effects  is  possible  only  between  persons  of  the  same  posi- 
tion persisted  in  the  Customs  after  it  had  disappeared  from 
legislation.  Combined  with  motives  of  a  political  nature,  such 
as  the  indivisibility  of  fiefs  or  of  States,"*  and  with  the  pro- 
hibition of  concubinage  by  the  Church,  it  gave  rise  to  the  mor- 
ganatic marriage,  that  is  to  say,  to  a  union  which  in  its  essential 
characteristics  does  not  differ  from  ordinary  marriage  (monog- 
amy, indissolubility,  legitimate  filiation,  etc.),  but  wherein  neither 
the  women  nor  the  children  hold  the  same  social  rank  as  the 
husband.'^ 

In  Germany,^  from  the  thirteenth  century,  it  is  permitted  only 
among  the  upper  nobility,  and  to-day  in  the  families  of  princes 
only.  The  wife  is  only  the  equal  of  her  husband  if  she  is  "eben- 
biirtig,"  that  is,  of  equal  birth.  With  any  other  woman  a 
marriage,  however  regular  it  may  be,  is  a  misalliance,  a  "dis- 
paragium,"  a  morganatic  ^  or  left-handed  marriage.^  The  wife 
does  not  take  her  place  in  the  family  of  the  husband  and  has  over 
his  possessions  only  the  rights  specified  in  the  contract  of  mar- 
riage;^ thus,  she  has  no  dower  rights.  No  more  than  their  mother 
do  the  children  attain  to  the  rank  of  their  father  and  inherit  the 

1  "Tour.,"  246;  "Anjou,"  342,  etc.    "Ord."  of  1629, 132;  Fem^re ,  see bibl. 

2  However,  they  kept  up  gifts  for  sustenance  in  a  case  where  the  concu- 
bine was  worthy  of  having  some  interest  taken  in  her. 

3  Stobbe,  §  213,  214  (bibl.);  Putter,  "Missheiraten,"  1796;  Zoepfl,  id.,  1853; 
Gohrum,  "Lehre  d.  Ebcnburtigkeit,"  1846;  Heffter,  "Sonderrechte,"  1871; 
Schulze,  "Preuss.  Staatsr.,"  I,  185;  Niebelschiitz,  "De  Matrim.  ad.  Morgana- 
ticam,"  1851;  D'Haucour,  "R.  Crit.  de  Leg.,"  24,  579;  Cidmann,  "Stud.  Ub. 
de  Morg.  Ehe.,"  1880;  Berenger  (Fernand),  "De  Matrim.  ad.  Morganat." 
Cf.  Prussian  "Landrecht,"  II,  1,  835;  II,  2,  555  (contrary  to  practice);  Schulte, 
§§  142,  174. 

*  A  prince  who  is  a  widower  takes  a  morganatic  wife,  so  as  to  keep  the 
throne  for  the  children  of  the  first  marriage  and  avoid  a  vexatious  rivalry. 
Cf.  the  position  of  the  prince  consort  in  countries  where  the  crown  belongs  to 
the  queen. 

^  "L.  Feud.,"  2,  29  (Milan:  "accipere  ad  morganaticam";  elsewhere  they 
say:  "lege  Sahca").    Cf.  2,  26,  16. 

*  "Sachsensp,"  I,  16,  2:  no  "Ebcnburtigkeit"  between  those  who  are 
free  and  those  who'arc  not  free  (the  children  then  take  the  lower  rank) ;  "Schwa- 
benspiegel,"  60  6;  between  "Semperfrcie"  and  "Mittelfreie,"  "a  fortiori" 
between  nobles  and  commoners:  Schroeder,  §  42,  7;  Hcusler,  §  37. 

^  By  reason  of  the  "  Morgengabe  "  stipulated  for  at  the  time  of  the  marriage. 
®  The  husband  took  the  right  hand  of  the  lawful  wife.  Cf.  Martene,  op.  cit. 
"  "L.  Feud.,"  2,  29. 

161 


§  143]  THE   FAMILY  [Chap.  I 

possessions  of  the  family;  they  are  only  recognized  as  having  a 
right  to  be  supported.^  The  effects  of  the  misalliance  can  be 
done  away  with  if  all  the  male  descendants  who  are  capable  of 
inheriting  ^  give  their  consent.  In  the  same  way,  if  the  family  dies 
out,  the  children  born  of  the  morganatic  marriage  carry  it  on. 

^  For  each  family  one  must  consult  the  laws  or  "Hausgesetze"  which 
govern  it,  as  well  for  cases  of  "  Ebenbiirtigkeit "  as  for  the  effects  which  can 
be  connected  with  a  misalliance. 

2  Can  an  imperial  privilege  take  away  the  succession  from  the  agnates  and 
confer  it  upon  the  children?    Capitularies  of  1658,  1742,  1792. 


162 


Topic  Q] 


POWER    OF   THE    HUSBAND 


[§  144 


Topic  9.     Power  of  the  Husband 


§§  144,  145.  Foundations  of  the  Power 

of  the  Husband. 
§  146.  Right  of  Correction. 
§  147.  The  Husband's  Authority. 
§  148.  The  Incapacity  of  the  Wife  is 

General. 
§  149.  How     is  the       Authorization 

Given? 


§  150.  Supplementary    Authorization 

Given  by  Law. 
§  151.  Effects    of   Authorization. 
§  152.  Lack  of  Authorization.  —  Beau- 

manoir's  Svstem. 
§  153.  Rights  of  Third  Parties. 


§  144.  Foundations  of  the  Power  of  the  Husband.^  —  In  the 
early  Customary  law  the  Germanic  "mundium"  is  continued 
under  the  name  of  power  or  authority  of  the  husband,  including  at 
the  same  time  both  the  person  and  the  possessions  of  the  wife ;  ^ 

'  Terminology.  Barbarian  period:  "mundium,"  "mundeburdium,"  "po- 
testas,"  etc.  Period  of  Customs:  "mainbournie,"  "mainplevie"  (Liege), 
"coverture"  (England),  "bail,"  "garde,"  "avouerie,"  etc.  Post,  "Guar- 
diansliip  of  Women,"  "System  of  Possessions  between  Spouses,"  "Power  of 
the  Father."  Loysel,  176. —  On  the  unity  of  the  domestic  power  or  "mun- 
dium," on  its  character  of  power  and  not  of  protection:  Heusler,  §  23. 

2  Against  this  opinion,  which  is  commonly  admitted,  cf.  Lefebvre,  op.  cit., 
p.  397,  according  to  whom  the  "mundium"  existed  only  among  the  Lom- 
bards, the  Saxons  and  the  Scandinavians.  The  origin  of  the  husband's  power 
in  Customary  law  would  be  found  especially  in  the  Christian  ideas,  for  which 
the  way  had  been  prepared  by  the  Germanic  Customs;  among  the  Franks 
the  wife  would  have  been  free  at  Iniv,  subject  in  fact,  for  the  most  part.  — 
This  system,  which  we  do  not  pretend  to  discuss  thoroughly  in  a  mere  note, 
at  least  calls  for  a  few  observations.  1st.  If  the  husband's  power  is  a  juridical 
production  of  the  Christian  spirit,  is  it  not  extraordinary  that  the  Church, 
which  has  given  us  so  much  legislation  on  the  subject  of  marriage,  did  not 
find  a  place  in  its  law  for  an  institution  of  so  much  importance?  Perhaps  one 
will  say  that  the  Christian  teacliing  and  penances  were  sufficient;  but,  as 
far  as  that  goes,  what  was  the  use  of  legislation  on  the  subject  of  marriage? 
2d.  It  is  almost  a  miracle  to  see  this  power  being  established  over  the  bar- 
barian woman,  while  the  Roman  woman  escapes  it.  At  the  same  time,  both 
of  them  were  submitted  to  the  influence  of  Christianity.  According  to  the 
logic  of  things,  it  is  in  the  case  of  the  former  of  these  women  that  the  reform 
should  have  had  its  inception.  If  this  was  not  so,  then  we  can  say  "spiritus 
fiat  ubi  vult."  3d.  It  is  quite  possible  that  the  "mundium"  did  not  operate 
among  the  Franks  with  the  same  harshness  as  among  the  Lombards;  at  a 
very  early  period  it  was  weakened  and  modified.  But,  if  one  denies  its  ex- 
istence, the  appearance  of  the  husband's  power  during  the  feudal  period  is 
an  enigma  which  cannot  be  solved.  It  is  not  arbitrary  to  argue  from  the 
Lombard  law,  for,  aside  from  the  general  relationship  of  the  barbarian  laws, 
the  Lombard  Customs  of  the  Middle  Ages  resemble  the  French  Customs. 
The  same  power  of  the  husband  would  have  been  created  here  by  the  Chris- 
tian spirit  and  there  by  the  Germanic  law.  4th.  It  is  difficult  to  draw  from 
Christian  teaching  the  right  to  beat  a  wife;  also,  they  derived  it  from  the 
responsibility  of  the  husband  because  of  the  offenses  of  his  wife.  But  this 
responsibility  surely  existed  during  the  Prankish  period.  Therefore,  the  right 
of  correction  also  existed,  and  this  essential  attribute  of  the  "mundium" 
carries  with  it  almost  all  the  others.    5th.  Negative  arguments:  (a)  The  silence 

163 


§  144]  THE    FAiMILY  [ChaP.  I 

according  to  the  formula  in  the  "  Schwabenspiegel,"  72,  "der  Mann 
ist  des  Weibes  Vogt  und  ]\Ieister."  Assuming  the  quasi-mihtary 
organization  of  the  family,  the  necessity  for  command  by  an  in- 
dividual, the  woman  was  found  to  be  subordinate  to  the  husband ; 
her  physical  weakness  during  a  period  of  violence  relegated  her 
to  this  inferior  role.^  As  soon  as  social  conditions  became  less  dis- 
turbed, it  was  not  long  before  the  civil  emancipation  of  unmarried 
women,  young  girls,  or  widows  was  introduced.  This  change  had 
its  reciprocal  effect  on  the  condition  of  the  married  woman  her- 
self, in  spite  of  the  force  of  tradition  and  the  constant  presence 
at  her  side  of  one  stronger  than  she;  it  was  difficult  to  ascribe 
radical  incapacity,  the  day  following  her  marriage,  to  the  woman 
who  the  day  before  was  in  possession  of  her  full  capacity.  She  had 
the  enjoyment  of  rights,  but  she  was  not  allowed  the  exercise  of 
them.^  One  can  say  that  when  she  married  she  condemned  her- 
self to  a  perpetual  minority.    Although  reduced,  the  power  of  the 

of  the  Frankish  laws  leads  one  to  suppose  that  the  law  of  the  family  was  not 
codified  in  them.  I  admit  that  the  formulae  and  statutes  might  have  been 
more  expUcit,  but  how  many  omissions  do  we  not  find?  (6)  It  is  time  wasted 
to  seek  in  the  Frankish  statutes  for  a  procedure  dealing  with  the  annulment 
of  a  contract  entered  into  by  the  wife,  if  this  contract,  as  we  know,  could  not 
be  pleaded  against  the  husband.  6th.  Positive  reasons._  The  experience  of 
Berthegonde,  who  fled  from  her  husband  to  take  refuge  in  churches  or  mon- 
asteries, bears  witness  to  the  authority  of  the  bishops  and  brings  into  play 
the  right  of  sanctuary;  against  this  right  the  domestic  power  wrecks  itself  as 
well  as  the  social  power  {Gregory  of  Tours,  IX,  33).  The  case  of  Fredegonde 
giving  her  daughter  a  marriage  portion  of  gold,  money,  and  clothing,  is  not  of 
much  consequence;  in  the  first  place,  at  a  very  early  time  the  "ornamenta 
muUebria"  were  left  to  women  as  their  own  special  property;  and  then,  again, 
the  husband's  "mundium"  must  have  been  very  slight  over  a  queen,  whom 
it  cost  so  Uttle  to  have  her  husband  assassinated  {Gregory  of  Tours,  VI,  45). 
Cf.  "Acad.  Leg.  Toulouse,"  1900  ("  Le  Mariage  par  Achat")  and  "Acad. 
Sciences  Toulouse,"  1895  ("Tutelle  des  Femmes").  Let  us  add  that,  if  the 
Frankish  Customs  dealing  with  the  family  were  not  of  the  same  consistency 
as  codified  laws,  —  a  consistency  which  cannot  be  expected  from  even  the 
codes  of  that  period,  —  they  none  the  less  constituted  juridical  rules.  The 
confusion  and  the  obscurity  which  existed  with  regard  to  them  are,  however, ' 
not  an  absolute  obstacle  to  one's  perceiving  a  predominating  tendency,  as  it 
were,  and  logical  connections;  a  rough  outUne  of  this  law  of  the  family  may 
thus  be  accurate,  while  at  the  same  time  it  too  often  preserves  a  systematic 
character. 

1  With  very  rare  exceptions  women  are  not  capable  of  bearing  arms,  and 
civil  capacity  is  measured  by  physical  force:  post,  "  Guardiansliip  of  Women." 
Heusler,  §  25,  objects  that  the  weakness  of  woman  has  always  remained  the 
same,  whereas  her  capacity  has  increased.  Undoubtedly,  a  woman  is  not 
physically  incapable  hke  a  child  of  tender  age;  but  her  weakness  has  prevented 
her  becoming  head  of  the  family.  Cf.  with  regard  to  the  Scandinavian  woman, 
whose  situation  in  the  family  has  been  presented  under  too  favorable  an  as- 
pect, Gide,  p.  219;  Dareste,  pp.  289,  307;  "L6g.,"  "Sues  Goth.,"  IV,  9  (the  hus- 
band strikes  his  wife  so  \'iolently  that  she  dies  from  the  effects  of  it). 

2  Cf.  post,  "Participation  in  the  Exercise  of  the  Power  of  the  Husband," 
"System  of  Possessions  between  Spouses."  Mertian  de  Muller,  "Cond.  de  la 
M6re,"  1878. 

164 


Topic  9]  POWER   OF   THE   HUSBAND  [§  144 

husband  thus  persisted,  differing  in  this  from  the  guardianship 
of  minors,  in  the  interests  of  peace  in  the  household,  so  that  it 
might  assure  the  unity  of  direction  of  the  conjugal  companion- 
ship.^ By  way  of  compensation  the  woman  received  certain  se- 
curities and  privileges.^  Owing  to  a  contradiction  which  is  more 
apparent  thari  real,  in  this  authority  of  the  husband  there  was 
seen  a  safeguard  for  the  woman  herself,  who  was  considered  as 
being  weak  and  inexperienced  by  nature  {cf.  Roman  law:  "im- 
becillitas  sexus,"  the  Velleianum  Decree  of  the  Senate).^  This 
was  a  contradiction,  as  the  interest  of  the  husband,  who  was  the 
representative  of  the  family,  might  be  in  opposition  to  that  of  the 
wife;  but  a  contradiction  which  has  not  given  much  offense,  be- 
cause the  wife  would  be  protected,  if  not  against  her  husband,  at 
least  against  third  persons.  At  the  same  time,  the  power  of  the 
husband  was  deprived  of  its  despotic  character;  the  State  .pene- 
trated into  the  circle  of  family  affairs,  which  until  that  time  had 
been  closed  to  it,  controlled  its  administration,  and  constituted 
itself,  in  default  of  the  husband,  the  guardian  of  the  wife.'*  If  one 
considers  this  customary  theory  in  its  later  developments  it  seems 
to  us  like  a  composite  system  wherein  various  conceptions  come 
to  light:  giving  of  the  Germanic  "mundium,"  unity  of  direction 
in  the  management  of  the  moral  and  material  inheritance  created 
by  the  marriage,  physical  incapacity  and  inexperience  of  the 
woman.^  This  theory  found  a  support  in  the  Christian  ideas:  the 
axiom  "Vir  caput  est  mulieris"  seemed  like  the  religious  formula 
of  the  civil  law;  ^  the  theologians  maintained  that  the  woman  who 

'  If  one  can  compare  the  husband  to  a  guardian,  one  should  not  forget 
that  he  does  not  have  to  furnish  any  surety  or  render  any  account,  and  that 
he  cannot  be  removed.    Formula  in  Grimm,  "Weisth.,"  II,  836. 

2  Aristotle,  "Poht.,"  3,  2,  10  (c/.  Auguste  Comte,  "Catechisme  Positi- 
viste"):  "Man  is  concerned  with  acquiring,  woman  with  preserving."  This 
remark  of  Aristotle's  is  not  so  true  in  our  day.  But  for  a  long  time  the  wife 
was  restricted  to  the  household  management  and  the  husband  was  responsible 
for  external  relations. 

3  As  to  the  bad  opinion  which  jurists  and  theologians  have  of  women,  see 
post,  '  Guardianship  of  Women.  "Le  Songe  du  Verger,"  1,  147,  makes 
a  regular  prosecutor's  speech  against  them.  D  Argentre,  on  "Bret.,"  410, 
classes  them,  as  we  would  say,  among  the  impulsive  people  (outbursts  of  emo- 
tion, lack  of  caution,  ungovernable  pride):  Bedier,  "Fabliaux,"  p.  318.  In 
the  time  of  Chassaneus,  "Catal.  Glor.  Mundi,"  2,  12,  when  a  married  woman 
passed  near  a  man,  custom  demanded  that  she  should  conceal  half  of  her 
face. 

*  Proudhon,  "Tr.  des  Personnes,"  I,  p.  468. 

5  Pothier,  no.  1:  The  need  which  the  wife  has  for  the  authorization  of  the 
husband  is  not  based  upon  the  weakness  of  her  reason. 

8  Paul,  "Ephes.,"  v,  21.  According  to  the  theologians,  woman  was  originally 
the  equal  of  man,  but  Eve's  fault  caused  her  to  descend  to  the  rank  of  an 

105 


§  144]  THE    FAMILY  [Chap.  I 

disobeyed  her  husband  committed  a  mortal  sin.  However,  that 
which  shows  us  very  clearly  that  we  must  not  attach  too  much  im- 
portance to  these  religious  ideas,  is  that  they  have  been  powerless 
to  compel  the  acceptance  of  the  principle  of  the  incapacity  of  the 
married  woman  in  the  countries  of  written  law:^  "by  custom, 
the  wife  is  under  the  power  of  her  husband ;  it  is  otherwise  in  writ- 
ten law."  ^  The  measures  of  the  Revolutionary  law,^  inspired  by 
the  idea  that  the  power  of  the  husband  is  "a  creation  of  despotic 
governments,"  ^  and  the  modern  woman's  rights  doctrine,^  had 
precedents  in  the  jurisprudence  of  the  parliaments  of  the  written 
law;  to  which  one  may  liken  the  English  Statute  of  the  18th  of 
August,  1882,  giving  her  freedom  to  the  married  woman.^  But 
the  framers  of  the  Civil  Code  extended  to  the  whole  of  France 
the  power  of  the  husband  which  was  in  force  in  countries  of  Cus- 
tomary law.  Instead  of  the  contrast  between  the  two  French 
systems  as  once  existing,  what  we  now  have  is  an  antithesis  be- 
tween the  condition  of  the  French  woman  and  that  of  the 
Anglo-Saxon  woman;  an  antithesis  which  custom  has  under- 
inferior;  she  became  the  accomplice  of  the  serpent;  she  is  unworthy  to  receive 
the  Eucharist  with  bare  hands  and  to  touch  the  "palla  altaris"  ("Cone. 
d'Auxerre,"  36),  etc.  The  clergy  is  not  recruited  from  among  women.  Cf. 
St.  Thomas,  "Summ.  Theol.,"  la,  q.  92;  Esmein,  "Mariage,"  I,  60;  Malo, 
"R.  d.  Frau.  in  Christ.  K.,"  1896;  Pontas,  ''Diet,  des  Cas  de  Consc.,"  1741, 
see  "Femme  Mari(5e."  The  common  opinion  is  that  the  domestic  power, 
whether  of  the  husband  or  of  the  father,  became  milder  under  the  influence 
of  Christianity:  Gengler,  "Einfluss.  d.  Christ,  auf  das  Altgerm.  Rechtsleben." 
Contra:  Lefebvre,  op.  cit. 

^  Julian,  I,  3;  Serves,  I,  8;  Boutaric,  id.  Let  us  observe  that  certain  Cus- 
toms of  the  South  admit  the  power  of  the  husband,  just  as  the  Italian  stat- 
utes do.  At  Genoa  marriages  according  to  the  local  Custom  are  distinguished 
from  marriages  according  to  the  Roman  law:  "Bordeaux,"  64,  80,  82,  112 
("Etabl.,"  34);  "F.  de  Beam,"  261. 

2  Desmares,  35;  "Petrus,"  I,  32;  Meynial,  "N.  R.  H.,"  1901,  268. 

3  "Premier  Projet  de  Cod.  Civ.,"  I,  3,  11  etseq.  (1793)  (equality  of  the 
spouses  in  that  which  concerns  the  administration  of  their  possessions;  con- 
sent of  both  spouses  to  the  alienation  of  the  possessions  of  the  husband  or  of 
the  wife);  Condorcet,  "Progres  de  I'Esprit  Humain,"  "CEuvres,"  X,  p.  121. 
Mirabeau  and  Robespierre  fought  against  the  emancipation  of  woman  (woman 
should  reign  in  the  interior  of  her  house;  everywhere  else  she  is  out  of  place). 

*  Montesquieu,  "Espr.  des  Lois,"  19,  14  (harmony  between  the  political 
system  and  the  constitution  of  the  family). 

^  Systems  of  Saint-Simon  and  of  Fournier:  Michelet,  "La  Femme,"  Stuart 
Mill,  "Subjection  of  Women,"  18.59  (French  trans.,  1869);  Bridel,  "Le 
Droit  des  Femmes,"  1893;  Secretan,  "Le  Dr.  de  la  F.,"  1888;  FouilM, 
"R.  D.  M.,"  Sept.  15, 1895;  P.  Lacombe,  "Le  Mariage  Libre,"  1895;  Varigny, 
"La  Femme  aux  Etats-Unis,"  1893;  bibl.  in  the  "Rev.  Encyclop.  Larousse," 
Nov.  28,  1896;  Desmaret,  "La  Femme  Future,"  1900;  cf.  Laurent  in  his  "Cours 
de  Code  Civil"  and  in  liis  projected  revision  of  this  code. 

8  Lehr,  op.  cit.;  Glasson,  "Rap.  s.  les  Prix  du  Budget,"  1898,  and  a  recent 
enactment  (1901)  for  Norway,  according  to  which  a  woman  may  or  may  not 
promise  obedience  to  her  husband  when  she  is  married.  —  Why  not  also  re- 
lease her  from  the  duty  of  fideUty? 

166 


Topic  9]  POWER    OF   THE   HUSBAND  [§  146 

taken  to  correct  by  giving  to  the  former  the  liberty  which  the 
law  refused  her,  and  by  preventing  the  latter  from  abusing  her 
legal  rights.^ 

§'  145.  The  Same.  — The  Germanic  "mundium"  (from  "munt," 
meaning  hand)  ^  recalls,  feature  by  feature,  by  its  name  and  by 
its  effects,  the  Roman  "manus,"^  or,  if  one  prefers  it,  the  power 
of  the  husband  among  the  Gauls  in  the  time  of  Caesar.'*  It  implies 
as  a  first  condition  the  change  of  family.  In  passing  from  her 
natural  family  into  that  of  her  husband  the  woman  ceases  to  be 
subject  to  the  paternal  power;  ^  she  takes  the  name  of  her  hus- 
band,^ lives  according  to  his  station,^  acquires  his  nationality, 
and  still  more  so  his  domicile.^  Formerly  she  also  lost  all  right  of 
inheriting  from  her  relatives.  But  it  does  not  seem  that  the  tie 
of  solidarity  which  united  her  to  the  latter  was  ever  entirely 
broken;  they  helped  her  in  time  of  need  and  protected  her.^  In 
the  last  stage  of  the  law,  it  has  for  a  long  time  been  admitted  that 
the  woman,  at  the  same  time  as  she  enters  the  family  of  her  hus- 
band, does  not  cease  to  belong  to  her  natural  family. 

§  146.  Right  of  Correction.^''  —  The  disciplinary  power  of  the 
head  of  the  family  over  the  entire  house  naturally  included  the 
wife.^^    In  primitive  times  it  was  undoubtedly  limited  only  by 

^  Starcke,  op.  cit. 

2  Heusler,  §  22  et  seq.;  Simonnet,  "These,"  1898.  As  to  the  Lombard  law 
cf.  Schupfer,  "Arch.  Giur.,"  I,  139;  Bluhme,  "Z.  R.  G.,"  XI;  Gaudenzi,  "Arch. 
Stor.  p.  1.  Prov.  Napoletane,"  1888,  XIII,  1. 

*  Many  of  the  old  authors  cause  the  husband's  power  to  be  derived  from 
the  Roman  "manus,"  —  for  example,  Loyseau,  "Offices,"  5,  2,  26;  with  this 
meaning  Van  Wetter,  "Le  Dr.  Romain  et  le  Droit  Celtique."  But  the 
"manus"  had  disappeared  at  the  time  of  the  estabUshing  of  the  barbarians. 

*  "Acad.  Leg.  Toulouse,"  1900  ("Le  Mariage  par  Achat");  cf.  Meynial, 
p.  92,  who  explains  Tacitus,  c.  20,  etc.,  by  means  of  the  Eddas  and  the  Nie- 
belungen  (Brunhild  has  possessions,  disposes  of  her  treasures  when  she  dies, 
can  leave  her  husband  at  her  will;  Gudrun  is  protected  by  her  brothers; 
Dargun,  "Mutterrecht,"  passim,  traces  of  the  matriarchate),  and  who  believes 
that  the  subjection  of  the  woman  is  a  later  fact  resulting  from  the  savage  life 
which  followed  the  Invasions  (p.  102).    See  also  Lefebvre,  op.  cit.  and  loc.  cit. 

*  Cf.,  however,  countries  of  written  law:  "Gr.  C.  Norm.,"  31,  14  (marriage 
is  equivalent  to  majority);  post,  "Power  of  the  Father." 

*  Before  there  were  any  patronymic  names  the  married  woman  was  desig- 
nated by  her  baptismal  name  followed  by  the  qualification  "uxor  N.".  .  .,  the 
wife  of  so  and  so. 

^  The  plebeian  woman  who  married  a  nobleman  became  a  noble,  and  vice 
versa.  At  the  same  time,  the  serf  who  married  a  nobleman  did  not  become 
a  noblewoman,  excepting  when  the  lord  married  his  own  serf. 

*  She  should  follow  the  husband  wherever  he  goes  to  reside  (excepting  if 
he  goes  abroad,  says  Pothier). 

*  Meynial,  p.  83;  po.^t,  "Correction." 

1"  Dubrulle,  "Dr.  du  Mari  sur  la  Pers.  de  la  Femme,"  1879. 
"  "  Priv.  de  Bareges"  (a.  1404),  Art.  7:  every  master  of  the  house  can  punish 
his  wife  and  his  family  without  anybody  being  able  to  prevent  him.  —  But  it 

167 


§   146]  THE    FAMILY  [Chap.  I 

the  fear  which  the  husband  had  of  the  relatives  of  the  wife.^  Al- 
though Tacitus  does  not  say  so,  there  is  reason  to  beUeve  that  the 
Germanic  husband,  who  did  not  hesitate  to  gamble  with  his  own 
person,  gave  as  a  stake  his  wife  and  his  children  before  pledging 
his  property.  At  any  rate,  the  old  traditions  agree  in  authorizing 
him  to  sell  them  in  case  of  necessity.^  The  formula  interpreting 
the  Edict  of  Rotharis  declares  that  the  husband  cannot  kill  his 
wife  "ad  libitum,"  but  only  if  there  is  a  valid  motive  ("rationa- 
biliter");^  this  is  to  recognize  the  "jus  vitse  necisque,"  and  leads 
us  to  believe  that  in  the  past  this  right  was  almost  absolute.  The 
Edict  calls  upon  the  relatives  of  the  woman  and  the  State  to  pun- 
ish illegal  murder.  Of  this  ancient  state  of  things  the  law  which 
had  so  long  been  in  force  in  many  countries,  of  killing  the  wife 
caught  in  flagrant  adultery,  still  remained.  There  also  remained 
the  right  to  beat  her  for  lesser  faults,  to  give  her  the  whip,  to 
strike  her  with  rods  and  the  stick.'*  In  the  twelfth  and  thir- 
teenth centuries  the  Customs  show  that  "it  is  allowable  for  the 
man  to  beat  his  wife,  as  long  as  he  does  not  kill  her  or  mutilate 
her."  ^     To  this  formula  of  Beaumanoir  one  may  liken  that  of 

is  probable  that  this  right  could  not  be  exercised  over  the  heiress  who  was 
mistress  of  the  house,  and  who  had  married  the  younger  son  of  some  other 
family;  the  latter  was,  in  fact,  reduced  to  about  the  same  role  as  that  of  the 
first  servitor.  D'Arbois  de  Jubainville  also  shows  us  that  in  Ireland  the  con- 
dition of  the  wife  varied  according  to  her  wealth;  if  she  were  rich  she  lorded 
it  over  her  husband;  if  she  were  poor  she  became  his  servant. 

1  Tacitus,  "Germ.,"  19;  cf.  Grimoald,  6;  "Liut.,"  120,  130;  Greg.  T.,  10, 
22;  Kraut,  I,  40;  Rosin,  "Formvorsclirift."  1880. 

2  Tacitus,  "Ann.,"  4,  72  ("Frisians");  "Bai.,"  1,  80;  "Alam.,"  51,  1; 
"Acad.  Legisl.  Toulouse,"  1900  ("Mar.  par  Achat");  Grimm,."R.  A.,"  450; 
"Roth.,"  203;  "Cap.,"  803,  c.  8  (I,  114);  Richtofen,  "Z.  Lex  Saxon,"  p.  293; 
"T.  A.  C.  Bret.,"  314  (no  imprisonment  for  her  husband). 

3  "Roth.,"  200  et  seq.,  and  "Form.";  cf.  "Wis.,"  3,  4,  1  et  seq. 

*  Wife  "sub  virga"  (English  expi-ession) :  Michelet,  "Orig.,"  p.  48; 
"Liut.,"  121;  "Cap.,"  829,  c.  3;  Burchard,  "Dec,"  1,  93.  The  Custom  of 
Ardenburg,  in  Zeeland  (twelfth  century),  according  to  wliich  the  wife  is  "a 
chattel  of  the  husband,"  formulates  this  right  with  a  savage  humor:  Art.  9, 
"The  husband  may  beat  and  wound  his  wife,  may  gash  and  slash  her  from 
top  to  toe,  may  warm  his  feet  in  the  blood  of  his  wife,  and  sew  up  the  wounds, 
without  offending  his  lord,  provided  she  does  not  die  from  the  effects"  (cited 
by  Van  Wetter,  p.  35).  "Hamburg,"  1270,  3,  8;  "Riga,"  6,  4,  3;  Viollet, 
p.  504;  R.  Foelix,  8,  672:  in  1841  an  English  peasant  led  his  wife  to  the  market 
and  sold  her  to  the  highest  bidder  (in  1884,  also,  according  to  Viollet). 

^  Beaumanoir,  57,  6:  "Quand  elle  meffet,"  he  says,  and  he  gives  four  ex- 
amples: she  is  about  to  "fere  folic  de  son  cors,"  she  lies  to  her  baron,  she 
curses,  she  does  not  wish  to  obey  his  reasonable  commands:  "Gr.  Cout. 
Norm.,"  85,  100  (to  put  out  the  eyes,  to  break  the  arms,  to  be  in  the  habit  of 
giving  blows,  often  and  without  reason,  "enormi  percussione,"  this  is  not  a 
mere  correction):  "F.  de  Beam,"  266;  Bergerac,"  1322,  Art.  82.  Analogous 
formulae  in  the  Italian  statutes  of  the  fourteenth  and  fifteenth  centuries :  Fertile, 
III,  308.  Cf.  the  Russian  "domostroi"  or  Economist  (sixteenth  century); 
story  of  Griselidis.    This  law  is  hardly  the  expression  of  customs  such  as  are 

168 


Topic  9]  POWER   OF  THE   HUSBAND  [§146 

d'Argentre  in  the  sixteenth  century :  ^  "  marito  licet  castigare 
uxorum  sicut  puerum  infra  setatum."  ^ 

The  Church  allowed  the  woman  to  ask  for  a  separation  of  domi- 
cile in  cases  of  ill-treatment  on  the  part  of  her  husband  ("si  tanta 
sit  viri  ssevitia  ut  mulieri  trepidanti  non  possit  sufficiens  securitas 
provideri,"  says  Innocent  III).^  It  even  gave  her  a  true  independ- 
ence in  matters  of  religion.  The  submission  of  the  wife  to  the 
husband  was  limited  by  her  duties  towards  God.^  With  this  ex- 
ception, the  wafe  owed  obedience  to  the  husband,  who  was  the  sole 
judge  of  her  relations  and  her  acts."  We  have  already  seen  what 
means  the  monarchic  law  gave  the  husband  to  suppress  dissen- 
sions on  the  part  of  the  wife.^ 

shown  us  in  literary  documents  like  the  "Dit  de  Bigorne  et  de  Chicheface" 
and  the  fabliaux  where  the  husbands  are  tlie  playthings  of  their  wives.  To 
the  Enghsh  formula:  "Cui  ipsa  in  vita  sua  contradicere  non  potuit,"  c/.  "Sire 
Hain"  and  "Dame  Anieuse";  see,  however,  Pasquier,  "Inst.,"  p.  65. 

Against  this  abandonment  of  the  old  law  the  popular  instinct  reacted  by 
means  of  burlesque  ceremonies,  a  species  of  disgracing  punishments,  some  of 
which  have  been  preserved  even  to  our  day,  and  which  have  as  their  object 
the  ridiculing  of  husbands  who  are  too  weak.  If  he  allows  himself  to  be  beaten 
by  his  wife,  the  husband  shall  straddle  a  donkey  with  his  face  turned  towards 
the  tail  in  the  midst  of  the  laughter  and  jests  of  the  whole  village:  Du  Cange,  see 
"  Asinus  ";Mic/ieZe;,  p.  48;"  Rev. des  Pyrenees,"  1900; "  La  Couvade,  en  France." 

1  "Sur  Bretagne,"  410;  Chassaneus,  on  "Bourg,"  c.  "Droits  des  Gens 
Maries":  "^quiparantur  pater  et  filius,  maritus  et  uxor";  Loyseau,  "Offices," 
5,  2,  26.  A  very  widespread  custom,  according  to  which  the  women  eat  stand- 
ing up  or  sitting  near  the  hearth  and  waiting  on  the  men  seated  at  table: 
Viollet,  p.  .503;  "R.  des  Pyr.,"  1900,  ib.;  Lehuerou,  "Carohng.,"  p.  39. 

^  To  punish  his  wife  is  a  right  and  a  duty  of  the  husband,  for  he  is  respon- 
sible for  her  offenses,  not  that  he  will  have  to  undergo  the  corporal  punishment 
that  she  deserves,  but  because  he  must  pay  the  fine  and  the  damages:  Beau- 
manoir,  56,  6;  "Cout.  de  Norm.,"  544;  Rollo,  according  to  Wace,  circa  1236, 
punishes  a  husband  for  the  off ense  of  his  ■nife :  Lc/e6yre, "  Cout.  Fr.  du  Mar. ,"  p.  20. 

3  Dig.  X,  "de  Rest.  Spol.,"  13;  Jaffe,  "Reg.,"  2845  (Nicholas  I);  Me- 
sangere,  "Diet,  des  Proverbes " :  "A  battrefaut  I'amour."  Brunner,  "Schoef- 
fenb.,"  511:  the  husband  should  act  with  respect  to  his  wife  "potius  bonis 
affatibus  et  virga?  disciplina  quam  turpibus  alloquiis,  flagellis  et  violentis  cas- 
tigationibus."  At  Breslau  in  1451  a  husband  promises  to  strike  his  wife  only 
with  rods,  as  is  proper,  and  as  a  wise  man  should  do  and  in  an  altogether 
honorable  manner:  Slobbe,  §  215.  Cf.  servants,  children:  Dareste,  326;  Fer- 
tile, III,  309;  "Ass.  de  Jcr.";  "C.  de  B.,"  181. 

*  Glanville,  6,  3;  "Morlaas,"  335:  the  wife  cannot  release  her  husband  from 
excommunication  (they  are  but  one  flesh,  but  the  offense  is  personal) :  "  T.  A.  C, 
Bret.,"  222  (hierarchy  of  duties). 

*  Bonaparte  to  the  Council  of  State  (according  to  Thibaudeau,  "M6m.  sur 
le  Consulat,"  p.  426):  "Nature  has  made  of  our  wives  our  slaves.  The  hus- 
band has  a  right  to  say  to  his  wife:  ' Madame,  you  shall  not  go  out!  Madame, 
you  shall  not  go  to  the  theatre!  Madame,  you  shall  not  see  such  and  such  a 
person!'  — which  is  as  much  as  to  say,  'Madame,  you  belong  to  me,  body 
and  soul!'  "  This  brutal  formula  is  recommended  to  the  attention  of  the 
framer  of  the  future  ('ode  dealing  with  women,  the  drawing  up  of  which  so 
many  right-minded  people  await  with  impatience. 

^  Regular  way  and  extraordinary  way  or  order  of  arbitrary  arrest  {Funck- 
Brentam,  "R.  D.  M.,"  1892,  113,  839). 

169 


§  147]  THE    FAMILY  [Chap.  I 

§  147.  The  Husband's  Authority.  —  In  the  primitive  law  the 
personality  of  the  wife  is  absorbed  by  that  of  the  husband;  ^  she 
has  no  possessions  of  her  own  ^  and  cannot  accomplish  any  juridi- 
cal act;  ^  it  is  for  the  husband  alone  to  act.^  This  state  of  law 
seems  to  have  been  abandoned  among  the  Franks,  but  one  finds 
traces  of  it  among  other  barbarian  peoples,  for  example,  among 
the  Anglo-Saxons.^  When  her  personality  begins  to  free  itself, 
when  she  has  possessions  of  her  own,  the  husband  is  none  the  less, 
as  far  as  these  possessions  themselves  are  concerned,  always  in 
charge  of  the  external  affairs  of  the  family;  or  else,  he  acts  him- 
self by  reason  of  his  "mundium,"  of  his  quality  of  head;"  but 
from  an  owner  he  has  descended  to  the  rank  of  a  manager  or  a 

1  In  the  English  law  the  husband  and  wife  are  one.  Post,  "System  of 
Possessions  between  Spouses."  The  power  of  the  husband  is  called  "cover- 
ture" ("feme  covert  de  baron,"  "femina  viro  cooperta,"  as  contrasted 
with  the  "feme  sole").  Cf.  Roman  wife  "in  manu  marit":  Du  Cange,  see 
"Cooperire." 

2  Without  going  so  far  as  this,  people  ordinarily  recognize  the  fact  that 
the  husband's  "mundium"  results  in  giving  him  the  administration  and  the 
use  of  the  possessions  of  his  wife,  the  right  of  disposing  of  her  movables,  and 
the  right  to  represent  her  at  law;  finally,  that  the  wife  must  be  incapable  of 
acting  without  authorization.  The  principle  of  the  unity  of  inheritance 
seems  to  us  to  have  had  more  radical  consequences;  we  must  take  it  as  being 
the  starting  point  of  evolution:  post,  "System  of  Possessions  between  Spouses." 
—  "Burg.,"  100;  "Wis.,"  4,  2,  15  (the  citation  of  Scripture  is  a  justification 
given  as  an  afterthought  for  a  rule  of  the  pagan  period).  The  law  of  the  Bur- 
gundians,  100,  is  drawn,  according  to  Heusler,  from  the  Germanic  foundation; 
it  would  be,  on  the  contrary,  inspired  by  Christianity,  according  to  Lefebvre, 
op.  cit.,  p.  442;  we  do  not  find  a  single  trace  of  this  last  tendency.  At  the 
time  when  the  wife  came  to  have  considerable  possessions  it  must  have  been 
asked  if  the  husband's  power  affected  them  to  the  same  degree  as  it  did  when 
she  brought  with  her  to  her  husband  nothing  or  almost  nothing;  the  laws 
clung  to  the  old  rule  and  extended  this  power  to  the  Roman  wives. 

3  "Roth.,"  205;  "Rib.,"  74  (likening  the  wife  to  a  slave) :  "F.  de  Ldon," 
1020,  Art.  42;  Mufioz,  p.  71,  496;  Liege  {Van  Wetter,  op.  cit.,  28):  the  husband 
is  absolute  lord  and  master  of  all  the  present  and  future  possessions  of  his  wife; 
he  has  the  right  to  dispose  of  them,  even  by  will  (until  the  seventeenth  cen- 
tury): "Const,  de  Messine,"  27;  "Aoste,"  1253,  5,  12  {Contra,  Venice:  inde- 
pendence) ;  Loysel,  122,  178,  290. 

*  "Summa  Norm.,"  100,  2;  14,  5;  "Cout.  d'Ardenbourg,"  loc.  cit.. -the  wife 
is  the  husband's  chattel. 

^  Post,  "System  of  Possessions  between  Spouses."  Cf.  "Cart.,"  "de  Re- 
don,"  "de  Cluny,"  etc. 

fi  He  claims  the  compcsitions  due  for  offenses  of  which  his  wife  is  a  victim, 
or,  conversely,  is  responsible  for  the  offenses  which  she  has  committed.  For- 
mula? upon  the  Lombard  laws:  "Roth.,"  26,  28,  139,  258;  "Liut.,"  92,  s. 
The  compositions  which  he  is  paid  belong  absolutely  to  him,  because  it  was 
for  him  to  take  vengeance  for  the  offense:  "Roth.,"  195  ei  se^.;  "Liut.,"  12,31; 
Heusler,  §  27.  He  pays  the  "launegild"  for  gifts  made  to  her:  "Roth.,"  184. 
He  defends  her  if  she  is  called  upon  to  take  part  in  a  judicial  duel:  "Ass.  de 
Jer.,"  "J.  d'Ibelin,"  75;  "Gr.  Cout.  Norm.,"  77;  English  common  law.  Cf., 
however,  "Wis.,"  2,  3,  6  (writ  of  the  wife).  Let  us  not  forget  that  we  also  see 
the  wife  giving  her  consent  to  the  alienation  of  the  possessions  of  the  husband 
and  authorizing  it:  "  Jostice,"  p.  169,  225;  Boutillier,  I,  99. 

170 


Topic  Q]  POWER   OF   THE   HUSBAND  [§  148 

usufructuary;  ^  or  else,  instead  of  acting  for  her,  he  acts  with  her, 
he  authorizes  her  to  accompKsh  an  act;^  in  one  way  or  another 
the  interests  of  the  family  are  preserved.  We  have  already  seen 
that  the  authorization  of  the  husband,  having  become  the  safe- 
guard of  the  woman,  constituted  in  case  of  Customary  law  the 
equivalent  of  the  Velleianum  Decree  of  the  Senate  which  was  in 
force  in  countries  of  written  law,^  and  that  the  authority  given 
by  law  limited  the  rights  of  the  husband  and  made  absolute  the 
protection  of  the  woman. ^ 

§  148.  The  Incapacity  of  the  Wife  is  General;  ^  it  exists  ^  with 
relation  to  every  act  of  civil  life,  and  it  is  not  possible  to  alter  it 
by  the  contract  of  marriage.^  At  the  same  time,  from  the  time  of 
the  thirteenth  century,  the  wife  who  is  a  tradeswoman,  that  is  to 
say,  who  carries  on  a  separate  business,  with  her  husband's  knowl- 
edge, has  capacity  as  far  as  her  own  business  is  concerned.^  (I)  In 
order  to  appear  in  court,  the  woman  must  ^  be  attended  by  her 

'  It  is  even  said  that  he  represents  his  wife;  this  is  a  conception  that  is 
relatively  recent;  originally,  he  only  represented  the  family,  he  acted  in  his 
capacity  as  head  of  the  family. 

2  "Lib.  Pap.  Roth.,"  233  et  seq.,  204,  170;  "Liut.,"  58. 

5  Post,  "Guardianship  of  Women." 

*  It  is  ordinarily  taught  that  the  power  of  the  husband  was  the  same  under 
every  matrimonial  system.  This  is  the  theory  of  the  jurists,  but  not  of  the 
historians:  each  reign  shows  us,  on  the  contrary,  a  different  phase  in  the  his- 
tory of  the  husband's  power. 

*  Although  the  texts  proceed  by  means  of  enumeration:  Desmares,  289; 
"Paris,  N.  C,"  223;  "Ori.,"  194;  "Gr.  Gout.  Norm.,"  77;  Beaumanoir,  43, 
22-26,  44,  19;  34,  56;  "Fribourg  i.  U.,"  1219,  20;  "Schwabenspiegel,"  72; 
Alost,  17, 6;Loysel,  122; Ferriere,  s.  223;  "Paris"  (customs and bibl.);  "T.A.C. 
Bret.,"  205;  J.  d'Ibelin,  105;  cj.  Civ.  Code,  217. 

«  Dating:  1st.  From  the  betrothals,  "  Artois,"  87,  etc.;  explanation  of  Mail- 
lard,  cf.  Civ.  Code,  1404.  In  reality  this  is  due  to  the  nature  of  the  betrothals 
in  the  old  law.  Dumoulin  no  longer  understands  this:  "hoc  ineptum  quum 
possit  majus,  scihcet  discedere  a  sponsalibus."  2d.  From  the  celebration  of  the 
marriage  (common  law):  "Nivern,"  29,  1,  etc.  3d.  "Bourg.,"  4,  1:  from  the 
consummation. 

7  See,  however,  "Separate  maintenance  formed  by  contract"  (of  recent 
date);  "Sondergut"  in  German  law,  Separate  estate  in  English  law. 

8  Practical  necessity.  In  allowing  her  to  carry  on  trade  the  husband 
authorizes  her  in  advance  to  do  all  the  things  that  are  required  for  this  trade: 
"Et.  de  St.  Louis,"  I,  153;  II,  147;  "Jostice,"  p.  131;  "Stat.  d'Erfurth," 
1305;  cf.  "Fribourg  i.  U.,"  1219,  20;  "Roye,"  1183,  17;  "St.-Quentin," 
1195,  20  ("Ord.,"  XI,  229,  272);  Beaumanoir,  43,  28;  44,  19;  Desmares,  76; 
she  can  be  summoned  without  her  husband.  Cf.  289,  "Ass.  de  J(5r.,"  "C.  d. 
B.,"  131;  "Poitou,"  3,  126;  "Anjou,"  510;  "Ori.,  A.  C,"  200,  etc.;  Pothier, 
no.  62.  She  cannot  appear  in  court  without  authorization,  even  in  matters 
relating  to  her  merchandise:  "Argou.,"  3,  19;  Merlin,  7,  etc.;  Loysel,  57.  Cf. 
system  of  the  "peculium"  in  Roman  law:  Slobbe,  §  220,  18;  "T.  A.  C,  Bret.," 
205;  "Paris,"  224. 

9  "Et.  de  St.  Louis,"  1,  153.  J.  Faure  believes  that  she  can  act  with- 
out authorization  in  the  courts  of  the  Church  (s.  I,  1,  "Cod.  Just.,"  "de 
bon  mat.,"  no.  3);  Dumoulin,  Lauribre    {Viollet,  "Et.   de  St.  Louis."  loc. 

171 


§  148]  THE   FAMILY  [Chap.  I 

husband ;  ^  undoubtedly,  in  the  beginning  she  appeared  with  her 
husband,^  and  finally,  the  latter  merely  played  the  part  of  an  as- 
sistant, of  a  qualifier,  a  part  which  implied  his  pi^sence  in  court 
as  it  had  done  in  the  past;  he  figured  at  the  trial  in  the  quality  of 
husband  jointly  with  the  wife,  and  the  judgment  could  be  exe- 
cuted against  him ;  there  is  an  exception  as  far  as  criminal  actions 
are  concerned,  when  the  wife  is  prosecuted  for  something  done 
by  her.^  (II)  Extrajudicial  Acts.  Acts  "inter  vivos"  (sale,  gift, 
mortgage)  are  forbidden  the  wife  who  has  not  the  authority  of 
her  husband,*  with  the  exception  of  acts  done  for  the  needs  of  the 
household.^  As  far  as  wills  are  concerned,  the  old  law  was  divided. 
Certain  Customs,^  which  undoubtedly  were  representative  of  the 
primitive  law,  hold  the  woman  as  being  incapable  of  making  a 
will  without  the  authorization  of  her  husband.  Though  domestic 
discipline  was  scarcely  involved,  as  the  will  has  no  effect  until 
after  the  dissolution  of  the  marriage,  the  husband  formerly  had 

cit.).  Answer  would  here  be  understood  to  apply  to  both  the  complaint  and  the 
defense,  according  to  Lauriere:  "Jostice,"  p.  131;  Beaumanoir,  63,  1;  the 
wife  cannot  appeal  without  the  permission  of  her  baron,  but  she  can  be  ap- 
pealed against:  "Ohm,"  III,  124,  14. 

1  A  previous  authorization  is  not  sufficient:  Aubert,  "Hist,  du  Pari.,"  I, 
209;  "Le  Pari.,"  I,  237;  "Const,  du  Chatelet,"  39. 

2  "Ass.  de  Jerus.,"  "C.  d.  B.,"  90,  122,  153  (ed.  Beugnot);  "Paris,"  224. 

3  "Et.  de  St.  Louis,"  loc.  cit.;  "Jostice,"  131.  Contra,  "Gr.  C.  Norm.,"  74, 
100  (proof  of  the  hot  iron,  "  juisium  "  formerly).  She  can  act  alone  if  she  is 
insulted  (c/. ^Zius  at  Rome) :  "Norm.,"  543;  "Lorris,"  199;  "Montarg.,"  2,  7, 
or  for  recovery  of  possession  if  her  husband  is  absent:  c/.  Pothier,  65;  Britz, 
"Dr.  Belg.,"  p.  550. 

*  "Jostice,"  131;  Beaumanoir,  43,  22;  34,  56;_70,  7.  Post,  "Insane 
Husband,"  etc.  The  wife  can  validly  bind  herself  in  order  to  get  her  hus- 
band out  of  prison:  "Norm.,"  541;  "Ord.  s.  Marine,"  1681,  3,  6,  12,  in  order 
to  appoint  a  marriage  portion  for  her  daughter.  Pothier  demands  for  this 
the  authorization  of  the  judge.  According  to  Louet,  "M.,"  147,  the  lack  of 
authorization  only  annuls  contracts  which  are  to  the  prejudice  of  the  wife; 
thus  she  could  receive  a  gift  from  a  third  party  or  a  mutual  gift.  Contra, 
"Ord.,"  1731,  Art.  9  {cf.  Civ.  Cod.,  934);  P.  de  La  Janes,  "Princ,"  II,  18; 
"Arr.,"  Aug.  27,  1564,  and  April  12,  1595.  Commands,  testamentary  exe- 
cution: "The  moral  interest  of  the  family  may  be  affected."  Beaumanoir, 
41,  26  (cannot  be  an  arbitrator). 

•  ^  Pothier,  49:  an  implied  command  of  the  husband.  From  whence  it 
would  follow  that  the  wife  is  not  bound.  The  consequence  would  be  just 
the  opposite  if  one  assumed  that  the  wife  had  received  an  implied  authori- 
zation, or  that  she  were  capable  of  binding  her  husband  in  the  interest  of 
the  household  without  having  been  authorized:  Chaisemartin,  p.  324;  Britz, 
p.  551;  Lamoignon,  "Arr.  Comm.,"  69;  Merlin,  7,  7. 

8  English  common  law:  Glanville,  7,  5;  Bracton,  I,  60;  Pollock  and  Mait- 
land,  II,  426;  "Hainaut,"  29,  5;  "Norm.,"  417;  "Bret.,"  519;  "Beaune," 
"Pers.,"  530. 

''  Tournay,  Louvain:  authorization  if  there  were  children  (Britz,  p.  551). 
At  Li^ge,  it  is  the  husband  who  makes  the  will:  cf.  "Bourg.,"  4,  1;  "Niv.," 
23,  1;  Merlin,  "R6p.,"  see  "Testament  F.  de  B6arn,"  261.  Post,  "Gifts 
or  Legacies  between  Spouses." 

172 


Topic  O]  POWER   OF   THE   HUSBAND  [§  149 

rights  over  the  possessions  of  the  wife  which  were  hard  to  reconcile 
with  the  making  of  a  will  by  the  latter  (acquisition  of  the  marriage 
portion,  for  example).^  As  these  rights  in  time  disappeared,  or 
became  very  much  weakened,  the  common  law  of  the  Customs  of 
the  twelfth  century  allowed  the  woman  to  make  a  will  by  herself; 
the  interest  of  the  family  is  necessarily  sacrificed  to  the  desire 
to  make  the  will  a  deed  of  the  woman  herself,  and  not  of  her 
husband.^ 

§  149.  How  is  the  Authorization  Given? — As  far  as  the  old  law 
is  concerned,  it  would  undoubtedly  be  more  accurate  to  speak  of 
the  intervention  rather  than  the  authorization  of  the  husband. 
The  act  of  the  wife  had  either  to  be  performed  or  warranted  by  the 
husband  himself,  as  it  was  not  valid  in  itself.  In  time  the  husband 
no  longer  has  any  need  to  indorse  the  act  and  to  make  it  his  own; 
the  wife  is  capable,  but  the  husband  should  cease  to  set  up  the  in- 
terest of  the  household  against  that  of  third  parties.  Intervention 
on  the  part  of  the  husband  degenerates  into  a  simple  "consensus," 
in  establishing  that  the  act  is  not  injurious  to  him.  The  progress 
of  the  law  has  not,  however,  been  so  simple  as  these  notions  might 
lead  one  to  suppose.  —  (A)  The  authorization  always  had  to  be 
Special;^  a  general  authorization  would  be  nothing  less  than  an 
abdication  of  the  husband's  power,  the  complete  upsetting  of  the 
old  system.'*  —  (B)  Judicial  Acts.  The  husband  figures  at  the 
trial  in  this  capacity:  he  is  a  party  to  the  proceedings  in  con- 
formity with  the  old  rule.  —  (C)  Extrajudicial  Acts.  Originally, 
no  particular  form  was  prescribed;  the  co-operation  of  the  husband 
in  the  act  undoubtedly  was  sufficient,^  and  it  was  the  same  as  to 

1  Cf.  English  law,  according  to  which  the  wife's  will  is  revoked  of  absolute 
right  by  her  marriage. 

2  Loysel,  123;  "Poitou,"  275;  "Auxerre,"  238;  "Reims,"  12;  Pothier, 
no.  43.  In  countries  of  written  law  the  wife  may  make  a  will  without  being 
authorized  to  do  so  by  her  father,  evidently  because  marriage  has  emanci- 

Eated  her.     The  jurisprudence  of  countries  of  Customs  was  perhaps  inspired 
y  this  practice:  Automne,  "Confer.,"  II,  p.  293  ("ad  tit.  qui  testam."). 
'  Lebrun,  2,  1,  4,  8;  D'Aguesseau,  op.  cit.  and  loc.  cit.;  Valin,  on  "La  Roch.," 
23 ;  Lamoignon,  66,  allows  a  special  or  general  obtaining  of  authority  previous 
to  the  contract. 

*  Moreover,  several  of  the  Customs  have  gone  as  far  as  this — ("Artois," 
"Flandre,"  "La  Roch.").  The  "Coutume  de  Berry,"  1,  21,  only  allows 
a  general  authorization  to  be  given  by  means  of  the  marriage  contract.  One 
can  say  that  the  common  Customary  law  tolerates  rather  than  permits  a  gen- 
eral authorization  under  the  form  of  a  separate  maintenance  stipulated  for 
by  contract  (with  limited  effects).  Cf.  post,  "Sondergut,"  "Separate  Estate." 
It  is  the  same  with  an  authorization  to  carry  on  business:  Duplessis,  "Com- 
mun.,"  1,  5;  Lebrun,  2,  1,  6;  Bourjon,  I,  588;  Merlin,  6,  2,  2. 

*  Various  expressions  in  the  old  authors,  "cong6,"  "octroi,"  "consente- 
ment,"  etc. 

173 


§  149]  THE    FAMILY  [Chap,  I 

his  express  or  implied  permission.^  In  the  eighteenth  century, 
perhaps  under  the  influence  of  the  Roman  writings  on  guardian- 
ship, an  express  authorization,  with  terms  which  are  decisive  or 
nearly  so,  "authorize,"  "enable,"^  is  required:  an  unjustifiable 
strictness  at  first  glance,  but  one  which  is  due,  undoubtedly,  to  a 
desire  to  avoid  the  difficulties  of  proof  on  the  subject  of  the  true 
part  played  by  the  husband. 

§  150.  Supplementary  Authorization  Given  by  Law.  —  (I) 
Absence  '^  or  Illness  of  the  Husbajid^  The  wife,  changed  into  a 
provisional  head  of  the  family,  became  capable  of  acting  in  his 
stead  and  place,  according  to  Beaumanoir.^  But  this  solution 
was  abandoned,  for  fear  she  might  enter  into  rash  undertakings 
and  compromise  the  fortunes  of  the  children.  She  was  obliged  to 
furnish  herself  with  a  legal  authorization.  This  latter  came  into 
existence  very  naturally  as  an  incident  of  trials;  ^  by  allowing 
the  woman  to  plead,  and  there  were  cases  where  it  was  difficult 
not  to  do  so,  the  courts  placed  her  in  the  same  situation  as  though 
she  had  been  aided  by  her  husband.  In  the  case  of  extrajudicial 
acts,  also,  it  was  easy  for  the  courts  to  acquire  supervision;  the 
wife  asserts  that  her  husband  is  absent  or  prevented  from  ap- 
pearing; if  she  does  not  prove  it  in  court,  frauds  would  be  too  easy 
a  matter;  thus  she  is  compelled  to  do  so,  and,  having  once  taken 
cognizance  of  the  matter,  the  courts  pass  upon  the  act  itself,  super- 
vise the  deeds  of  the  wife,  and  become  her  guardians.  It  is  thus 
that  the  general  rule  was  arrived  at  that  the  authorization  given 
by  law  supplements  that  of  the  husband.^  —  (II)  The  minority 
of  the  husband  might  have  been  looked  upon  as  an  obstacle  to  the 
exercise  of  the  husband's  power  in  the  same  way  as  illness;  the 
wife  who  was  of  age  would  then  have  acted  for  her  husband  until 
he  should  have  attained  his  majority.    But  this  was  not  so  at  all. 

1  "Flandre,"  "Bourgogne,"  etc. 

2  Pothier,  op.  cit.  Details  and  discussion  in  Merlin,  "Autor.,"  6,  1;  Louet, 
"A.,"  31  (influence  of  Bartolus  upon  the  law  "Cum  lex,"  D.,  "de  Fidej.")- 

3  "Gr.  Cout.,"  II,  32  (p.  323);  "Ass.  de  J6r.,"  "C.  des  B.,"  131;  Beau- 
manoir,  44,  19;  43,  28,  "Summa  de  leg.  Norm.,"  100,  97  (as  an  exception, 
when  her  husband  is  absent  she  can  make  use  of  the  writ  of  novel  disseisin). 

*  Dementia:  Beaumanoir,  4^3,28.  C/.  civil  death.  Merlin,  7;  v/ife  can  act 
without  being  authorized,  for  the  marriage  is  dissolved.  Contra,  Civil  Code, 
221. 

^' Beaumanoir,  43,  28;  44,  19;  "T.  A.  C,  Bret.,"  83. 

6  The"Gr.Cout.,"II,  32,  contemplates  this  very  case:  Buche,  "N.  R.  H.," 
1884,  645. 

■  7  Cf.  as  to  the  old  procedure,  Buche,  "N.  R.  H.,"  1884,  645.  Royal  letters 
in  the  sixteenth  century,  because  the  authorization  of  law  seems  like  a  favor. 
Afterwards  these  letters  are  not  necessary. 

174 


Topic  9]  POWER   OF   THE   HUSBAND  [§  150 

There  is  a  wavering  between  the  two  solutions:  either  to  declare 
that  the  husband  who  was  a  minor  was  capable  of  authorizing  his 
wife  who  had  arrived  at  her  majority,  for  the  unity  of  purpose  was 
thus  protected;^  or  else  to  require  the  authorization  given  by  law, 
under  the  pretext  that  the  husband  could  not  give  a  suitable  au- 
thorization, and  that  the  wife  had  to  be  protected.^  —  (HI)  Re- 
fusal  of  the  husband  to  authorize  his  wife?  According  to  the 
ancient  principles,  whatever  interest  she  might  have  had,  she  was 
not  permitted  to  act  nor  to  petition  any  court  against  a  pro- 
vision which  might  be  prejudicial  to  her  (Beaumanoir).^  In  the 
sixteenth  century  the  law  changed;  Loysel,  124,^  declares  that  the 
law  gives  the  wife  power  to  appear  in  lawsuits;  in  the  eighteenth 
century  it  gives  her  authority  to  make  contracts  and  to  alienate 
property.^ 

The  wife  who  had  legal  separate  property  ^  escaped  the  power  of 
her  husband  and  was  treated  as  a  widow,  according  to  an  ancient 
doctrine  upheld  by  Dumoulin  in  the  sixteenth  century;  ^  not  only 
did  she  administer  her  inheritance  alone,  but  she  had  the  right 
to  execute  all  acts  of  disposal.  This  opinion  did  not  prevail;  it 
was  contrary  to  the  idea  of  the  "  imbecillitas  sexus,"  and  to  the 
consideration  that  the  separate  estate  gives  way  to  common  in- 
terest, that  it  can  cease,  because  the  marriage  is  not  dissolved. 
The  woman  with  separate  property  was  only  held  as  emancipated 
in  that  which  concerned  the  administration  of  her  possessions; 
she  was  left  free  to  dispose  by  herself  of  her  movables  and  the  in- 
come of  her  immovables,  but  every  act  of  disposal  bearing  on  im- 

1  Auzanei,  Tronqon,  Ferriere  (on  223,  "Paris");  Loysel,  125;  "Plaid  de 
Corbin,"  118  (Order  of  1608).     This  opinion  prevailed:  Pothier,  no.  29. 

2  Dumoulin,  Chopin,  ib.;  Tiraqueau,  "De  Leg.  Conn.,"  8,  41;  c/.  Civil 
Code,  224;  Beaumanoir,  15,  30;  "T.  A.  C,  Bret.,"  81. 

3  D'Agnessea7i,  ed.  1772,  II,  54. 
*  Beaumanoir,  65,  17. 

5  At  least,  such  is  its  meaning  according  to  Davot. 

"  Contracts  between  Spouses.  Pothier,  42:  the  husband  can  authorize  his 
wife  to  contract  with  him  (mutual  gift).  Le  Brun  and  Ricard  are  of  a  dif- 
ferent opinion:  "nemo  jjotest  6sse  auctor  in  rem  suam,"  the  lack  of  au- 
thorization cannot  be  pleaded  against  the  husband  because  it  is  only  set  up 
in  his  own  interest.  As  to  conflicts  of  interest  between  husband  and  wife, 
c/.  Stobbe,  IV,  51;  "Sachsensp.,"  I,  44  (special  guardian  if  the  husband  dis- 
poses of  her  marriage  portion).  Cf.  "The  Guardianship  of  Women."  As  to 
the  English  law,  c/.  Lchr,  p.  76:  the  wife  who  has  been  authorized  can  dis- 
pose of  her  immovables  on  condition  of  recognizing  the  act  at  law,  which  is  a 
means  of  securing  her  freedom.  Same  procedure  when  the  wife  acts  alone, 
her  husband  being  absent  or  prevented. 

^  As  to  the  date  of  separate  maintenance,  cf.  post,  "Contract  of  Marriage." 
The  "Schwabcnsp.,"  I,  73,  admits  of  it;  cf.  148. 

0  "Sur  Bourb.,"  170,232;  "OrL,  A.C.,"  171;  "Lorris,"  198;  "Montargis," 
8,9. 

175 


§  150]  THE   F-^illLY  [Chap.  I 

movables  was  forbidden  her  without  the  authorization  of  her 
husband  (or  of  the  law),^  The  giving  of  a  separate  estate  by  con- 
tract was  only  accepted  under  the  influence  of  the  Roman  law, 
and  does  not  seem  to  have  been  practised  very  much.  Still  less 
could  the  woman  reserve  by  the  contract  of  marriage  separate 
propert\',  savings,  or  paraphernalia,  with  respect  to  which  she 
would  have  full  capacity.- 

§  151.  Effects  of  Authorization. — According  to  the  old  con- 
ception, the  husband  who  gives  his  authority  obligates  himself 
thereby,  contrary  to  the  Roman  custom:  "qui  autor  est  non  se 
obligat."  The  more  recent  law  tends  to  relieve  him  of  his  respon- 
sibility, although  the  community  of  interests  produced  by  the 
marriage  does  not  always  permit  of  this.^  Still  less  does  the  au- 
thorization of  the  law  bind  the  husband.  The  woman  who  has 
been  authorized  becomes  as  fully  capable  as  the  widow  or  the  un- 
married woman  who  has  attained  her  majority;  she  can  execute 
acts  which  compromise  her  to  the  greatest  extent,  for  example, 
she  can  become  surety  for  her  husband  or  a  third  party,  or  give 
up  her  dower  rights.^ 

§152.  Lack  of  Authorization. — Beaumanoir's  System. — The 
act  done  without  authorization  can  be  objected  to  as  against 
neither  the  husband  nor  the  wife  during  the  marriage,  but  it  can 
be  objected  to  as  against  the  wife  once  the  marriage  is  dissolved. 
The  authorization  is  thus  not  required  in  the  interests  of  the  wife; 
it  has  no  other  object  excepting  to  assure  a  unity  of  direction  of 
the  household,  a  thing  which  is  no  longer  of  any  concern  when  the 
marriage  has  ceased  to  exist.^  —  Sixteenth  century.  The  concep- 
tion of  the  protection  of  the  wife  has  gained  ground.  It  is 
admitted  that  she  can  invoke  the  nullity  of  the  act  after  the  disso- 
lution of  the  marriage.^    This  nullity  cannot  be  counteracted  by 

1  Order  of  1623;  L'Hommeau,  III,  138;  Louet,  "F,"  30;  "Paris,"  224,  234; 
Pothier,  no.  62  (she  can  appear  in  court  for  the  administration  of  her  pos- 
sessions); Argou,  II,  202;  Loijsel,  126. 

2  It  is  otherwise  with  the  German  law  of  the  thirteenth  century:  "Son- 
dergut."  English  law:  "Separate  Estate"  with  a  "Trustee"  (Court  of 
Equity).  Post,  "Contract  of  Marriage."  Son  of  the  family  and"peculium" 
at  Rome. 

^  Post,  "Conjugal  Community."  "Le  tablier  de  la  femme  oblige  le  mari." 
Pothier,  no.  76. 

*  Cj.  -post,  the  Velleianum  Decree  of  the  Senate.  As  to  renunciation  of 
dower,  c/.  Beaumanoir,  13,  5;  "Jost.,"  p.  169;  post,  "System  of  Possessions 
between  Spouses." 

*  Beaumanoir,  43,  22-27;  34,  56;  70,  7;  "Bayonne,"  9,  39.  The  question 
waa  an  open  one  during  the  sixteenth  century:  Charondas,  on  "Paris,"  223, 

«  "Paris,  A.  C,"  105  (silent),  "N.  C,"  223:  nullity  with  respect  to  the  wife 

176 


Topic  9]  POWER  OF  THE  husband  [§  153 

a  later  ratification,  any  more  by  the  husband  during  the  marriage 
than  by  the  wife  who  has  become  a  widow.^ 

§  153.  Rights  of  Third  Parties.  —  Those  who  deal  with  the 
woman  who  has  not  been  authorized  have  no  right  to  avail  them- 
selves of  the  nullity  of  the  act,  in  the  opinion  of  Beaumanoir,  for 
it  is  not  meant  in  their  interest.  According  to  the  new  theory, 
this  point  is  not  settled.  If  the  majority  of  the  old  authors  con- 
tinue to  refuse  to  allow  the  action  of  annulment  to  third  parties 
by  reason  of  the  lack  of  interest,^  Pothier  and  Merlin  concede  it 
to  them.^  Relative  nullity  and  absolute  nullity  each  have  their 
partisans.^ 

as  well  as  the  husband;  and  she  cannot  be  prosecuted,  nor  can  her  heirs, 
after  the  death  of  the  husband:  c/.  Civil  Code,  225  {their  heirs).  Motives: 
D'Argentre,  on  "Bret.,"  424:  fear  lest  the  husband  succeed  in  stripping  his 
wife  by  compelling  her  to  bind  herself  fraudulently,  —  that  is  to  say,  with- 
out his  being  under  the  responsibility  wliich  results  from  authorization  (at 
least,  under  the  system  of  community);  Charondas,  on  "Paris,"  223  (1,  29, 
D.,  "de  Reg.  Jur.";  absolute  nullity);  Meynial,  "N.  R.  H.,"  1901,  270,  1. 

'  Pothier,  5,  74  (authorization  given  afterwards  validated  the  act  "ex 
nunc"):  Orders  of  1557,  1598,  1626.  Charondas,  on  "Paris,"  237;  Ferriere,  on 
id.,  225;  Le  Prestre,  II,  16;  Lamoignon,  "Arr.  Commun.,"  66  (Controversy). 

2  D'Argentre,  on  "Bret.,"  424;  Lebrun,  Ferriere,  Bourjon,  etc.  Argou,  III, 
19,  to  end:  the  third  party  cannot  have  the  contract  broken,  provided  the 
husband  and  wife  offer  to  give  him  security  and  to  make  up  for  this  lack  of 
formality  by  an  authorization  made  afterwards  with  the  consent  of  the  wife. 

^  Pothier,  op.  cit.,  no.  5,  74;  Merlin,  "Rep.,"  see  "Autoris.  Marit."  In 
this  sense  one  might  have  said  that  general  interest  would  not  admit  of  the 
fate  of  the  act  being  left  entirely  to  one  of  the  parties  alone;  but  Pothier, 
contrasting  the  wife  with  the  minor,  starts  with  the  idea  that  the  wife  is  ab- 
solutely incapable,  which  was  entirely  correct  formerly,  and  an  idea  to  which 
the  doctrine  of  "imbecillitas  sexus"  gives  a  new  lease  of  life:  Lamoignon,  65. 

*  The  nullity  of  the  acts  of  the  wife  which  are  not  authorized  could  be 
alleged  without  any  letters  of  rescission  (thus  differing  from  acts  of  a  minor) 
and,  consequently,  at  any  time  within  30  years,  for  the  limitation  of  the 
action  of  rescission  was  the  only  one  limited  to  10  years  by  the  Ordinance  of 
1510. 


177 


§  154] 


THE    FAMILY 


[Chap.  I 


Topic  10.     The  Paternal  Power 


§  154.  Sources  of  the  Paternal  Power. 

§  155.  Origin. 

§  156.  "Mundium"and"PatriaPotes- 

tas." 

§157.  The  Same.  — (I)  The  limited 
duration  of  the  "mundium" 
in  contrast  to  the  perpetuity 
of  the  "patria  potestas." 

§  158.  The  Same.  — (II)  The  concep- 
tion of  family  joint  ownership. 

§  159.  Transformation  of  the  "  Mun- 
dium." 


§  160.  Customary  "  Mainboumie." 

§161.  Rights  over  the  Person.  Cor- 
rection. 

§  162.  The  Duties  of  Parents. 

§  163.  Rights  over  Possessions. 

§  164.  Capacity  of  the  Child  under 
Authority. 

§165.  Right  of  the  Mother. 

§  166.  Emancipation. 

§  167.  Emancipating  Majority. 

§  168.  Revolutionary  Law. 


§  154.  Sources  of  the  Paternal  Power.  —  In  the  old  Germanic 
law  the  rights  over  the  children  were  not  exactly  derived  from 
the  fact  of  paternity;  they  rather  related  to  the  possession  of  the 
"mundium"  over  the  mother.  The  husband  whose  wife  "in 
mundio"  has  been  taken  away  from  him,  and  has  had  a  child 
during  the  period  she  was  away,  preserves  his  power  over  the 
mother  and  the  child,  although  it  is  quite  certain  that  he  is  not 
the  father  of  the  latter,  and,  conversely,  in  the  case  of  marriage 
without  "mundium,"  he  has  no  authority  over  the  children,  who, 
however,  are  surely  his  own.^  —  The  later  law,  starting  with  the 
canonic  theories  of  marriage,  connects  the  paternal  power,  on 
principle,  with  legitimate  filiation,  and,  as  an  exception,  with  two 
facts  which  will  be  discussed  later  on,  legitimacy  and  adoption. 
By  legitimate  children  ^  are  understood  those  who  are  conceived 
and  born  in  a  genuine  marriage;  ^  or  else  those  who  have  simply 
been  conceived  during  the  marriage  and  are  born  after  it  is  dis- 
solved; or  even  those  who  are  born  during  the  marriage  but  con- 
ceived before  it.^ 

The  jurisdiction  over  cases  of  the  annulment  of  marriage  and. 


1  "Alam.,"  51;  "Liut.,"  126.  —  Stohbe,  §  47,  n.  23  and  §  251;  Maiirer, 
"Munch.  Akad.,"  1883,  68;  Wilda,  "Z.  D.  R.,"  IV,  288. 

2  Beaumanoir,  c.  18  (legal  heirs  and  bastards);  "Schwabensp.,"  II,  63; 
"SietePart.,"  IV,  13.  Deghewiet,  p.  52  (Belgium);  AimaUe,  "R.h.  Dr.,"  VIII, 
559;  Hosiiensis,  p.  313. 

^  Or  following  a  reputed  marriage:  Beaumanoir,  18,  7;    Desmares,  11. 

*  As  tothis  last  point,  however,  there  are  difficulties:  Ferribre,  see  "Nais- 
sance.  Filiation,  Ldgitime,  Question  d'Etat,"  etc.;  Guyot,  id.;  Bourjon,  I, 
p.  19;  Beaum.,  18,  2  (he  is  a  bastard,  but  he  becomes  a  legal  heir  by  vir- 
tue of  the  marriage.  CJ.  post,  repugnance  for  legitimizing:  "Sachsensp.," 
I,  36. 

178 


Topic  lO]  THE  PATERNAL  POWER  [§  155 

as  a  consequence,  of  filiation,  belongs  to  the  Church.^  ^Ye  have 
seen  wdth  regard  to  marriage  what  becomes  of  this  jurisdiction. 
It  is  the  jurisprudence  of  the  Courts  of  the  Church  which,  taking 
its  inspiration  from  the  Roman  legislation,  fixed  the  law  in  these 
matters.^  Longest  and  shortest  period  ^  of  pregnancy,  the  pre- 
sumption'^  "pater  is  est  quern  nupti^e  demonstrant,"  disavowal 
by  the  father,^  contesting  of  legitimacy  by  the  relatives,®  in  all 
these  the  general  lines  of  modern  law  are  almost  fixed  from  the 
thirteenth  century/  From  the  sixteenth  the  proof  of  filiation 
is  simple  enough;  it  results  from  the  production  of  the  certificate 
of  baptism  of  the  child,  to  which  is  attached  the  marriage  cer- 
tificate of  its  parents;  proof  by  witnesses  is  only  admitted  if  the 
loss  of  the  registers  is  first  of  all  established;  on  the  contrary, 
the  possession  of  the  status  of  a  legitimate  child  makes  up  for 
the  lack  of  the  certificate. 

§  155.    Origin.  —  The  barbarian  "mundium,"^  in  its  application 

1  Dig.  X,  17,  "qui  filii  sint  legitimi."  And  on  this  subject  cj.  Hostiensis, 
Panormitanus,  etc.;  Freisen,  p.  858. 

2  The  canon  law,  following  the  Roman  law  in  too  ser^dle  a  manner,  made 
the  mistake  of  not  strictly  limiting  cases  of  disowning. 

^  Beaumanoir,  18,  2:  39  weeks  and  1  day  at  the  most,  7  months  at  least; 
"  Jostice,"  p.  55;  "Schwabensp.,"  41.  At  least  41  weeks  for  a  boy  and  40  for  a 
girl:  Chaisemartin,  66,  67;  "Briinn.  Stadr.,"  349;  Domat,  "Lois  Civ.,"  2,  2,  1 
(estimation  of  the  judge).  As  to  the  longest  duration  there  was  considerable 
doubt  in  the  old  jurisprudence:  gestation  of  13,  15  and  even  23  months.  Cf. 
in  "Lucina  sine  Concubitu"  (s.  d.)  the  pretended  Order  of  Grenoble  in  1637 
deciding  that  a  child  had  been  conceived  in  the  absence  of  the  husband  through 
the  strength  of  the  mother's  imagination.  —  Finally,  they  were  ordinarily 
quite  satisfied  with  the  following  rules:  (a)  the  child  born  10  months  after 
the  death  of  the  husband  is  not  legitimate;  (6)  the  child  born  at  the  be- 
ginning of  the  7th  month  is  legitimate;  (c)  the  child  born  before  the  7th 
month  is  also  presumed  to  be  legitimate,  but  proof  to  the  contrary  is  ad- 
mitted, whereas  it  would  not  be  admitted  in  the  other  cases;  Ferriere,  Gmjot, 
sup.  cit. 

"  Bernhoft,  "Z.  V.  R.,"  IV,  227;  Sicherer,  " Personenstand  u.  Eheschl.," 
1879. 

*  The  jurisconsults  took  advantage  of  the  fact  that  the  canon  law,  follow- 
ing the  example  of  the  Roman  law,  did  not  strictly  limit  cases  of  disowning 
to  try  to  do  away  with  the  presumption  "pater  is  est"  (declaration  of  the 
mother  that  the  child  is  born  of  an  adulterous  union,  previous  barrenness  of 
the  wife,  the  child  who  is  lame  or  bhnd  is  regarded  as  being  born  of  sin): 
Coste,  "These,"  1884;  "Cod.  Max.  Bav.,"  1,  4,  9.  Beaumanoir  only  admits  oi 
disowning  in  three  cases:  18,  14,  absence  of  the  husband;  15,  impotence;  6, 
judicial  separation;  "Jostice,"  p.  58.  The  same  strict  tendency  is  found  in 
the  jurisprudence  of  our  parliaments.  Cf.,  however,  as  to  the  moral  im- 
possibility of  cohabitation:  Order  of  the  Parliament  of  Paris,  1745,  1758; 
Civil  Code,  325;  Merlin,  "R6p.,"  "Add.  Jostice,"  p.  210;  Glasson,  III,  185; 
Pollock,  II,  316. 

^  Beaumanoir,  18,  1 ;  Gregory  of  Tours,  8,  9. 

^  Cf.  Ferriere,  Guyot,  etc.  (bibl.).  Post,  "Certificates  of  Ci\al  Status"; 
Bourjon,  I,  p.  19. 

*  "Mundium,"  a  Latinized  form  of  the  Germanic  word  "Munt,"  meaning 

179 


§  155]  THE  FAMILY  [Chap.  I 

to  children,  or,  as  it  can  be  called,  the  paternal  power  of  the  Ger- 
manic law,  did  not  differ  essentially  from  the  Roman  "patria 
potestas."  ^  It  belonged  to  the  same  persons  and  carried  with  it 
the  same  consequences.  Thus,  the  father  alone  exercised  it,  to 
the  exclusion  of  the  mother;  ^  he  alone  was  (to  make  use  of  an  ex- 
pression from  the  Lombardian  laws)  "selbmund,"  under  his  own 
"mundium"  {cf.  the  Roman  contrast  between  the  "sui  juris"  and 
the  "alieni  juris ").^    It  implied  the  "jus  vitse  necisque."  ^    The 

"manus,"  "potestas."  Other  forms:  "mundeburdium,"  "mundeburdis,"  {cf. 
"Vormundschaft,"  guardianship).  They  also  use  the  word  "potestas." 
("Wis.,"  etc.);  "Alam.,"  51,  3;  54,  2;  "Rib.,"  35,  58;  "Capit.,"  ed.  Bor.,  see 
Table;  Du  Cange,  see  "Mundiburdus."  As  to  the  meaning  of  mouth,  "os," 
"verbum,"  which  has  often  been  given  to  "Mund,"  cf.  Viollet,  p.  493.  By 
"mundium"  is  understood  the  power  not  only  over  the  people  making  up 
the  household,  but  also  over  those  in  his  care:  Heusler,  §  22  et  seq.  The  one  to 
whom  the  "mundium"  belongs  is  called  the  "mundoaldus,"  particularly  in 
the  Lombard  laws:  see  Du  Cange  (guardian,  husband,  etc.).  In  the  thirteenth 
century  they  say:  "mainbournie,"  "mainburnia,"  "vouerie,"  "gouverne- 
ment,"  "garde,"  etc.,  and  he  who  exercises  this  domestic  power  is  called  the 
"mainbour,"  "mambour,"  "mainburnissiere,"  "avoue,"  "regent,"  "gou- 
verneur,"  etc.  See  Ragueau;  Loysel,  176.  In  the  German  "Mirrors": 
"Pflege,"  "Vormundschaft." 

1  Heusler,  I,  105,  431;  Brunner,  I,  71;  Zoepfl.,  "D.  Rechtsg.,"  II,  31;  Amira, 
§  58;  Richthofen,  "Untersuch.  iib.  Fries.  Rechtsg.,"  I,  407. 

2  The  expression  parents,  which  is  found  in  certain  texts,  must  not  make 
one  tliink  that  both  possess  this  power.  Cf.,  however,  Viollet,  p.  507.  The 
mother  does  not  exercise  the  paternal  power;  when  she  becomes  a  widow  she 
passes  under  the  authority  of  her  son.  Post,  " Guardiansliip  of  Women": 
"Roth.,"  204;  "Sax.,"  42;  Rozibre,  no.  103;  "Capit.  Kiersy,"  877,  c.  6. 
The  Anglo-Saxon  laws  only  confer  upon  the  mother  the  custody  of  the  children 
and  appoint  a  guardian  for  the  property  to  act  with  her:  "Hloth.,"  6.  The 
laws  of  the  "Wis.,"  3,  1,  7;  3,  2;  4,  3,  3,  13  et  seq.;  and  of  the  "Burg.,"  52, 
58,  85,  62,  74,  confide  the  guardianship  of  the  children  to  the  widow  upon 
her  request  and  under  conditions  which  betray  the  Roman  origin  of  these 
pro\'isions;  she  even  has  a  certain  right  of  enjoyment.  Cf.  post,  "Portion  of 
the  Survivor."  Even  according  to  these  laws,  it  is  very  doubtful  whether 
the  rights  of  the  mother  are  the  same  as  those  of  the  father.  A  second  mar- 
riage causes  her  to  lose  her  guardiansliip:  cf.  Walter,  "Corp.  Jur.  Germ.,"  I, 
p.  665;  "Wis.,"  4,  2,  13;  "Bai.,"  15,  7;  "Reg.  Farf.,"  167.  As  to  the  rights 
of  the  mother  who  is  a  widow,  cf.  Heusler,  II,  433,  450  ("  Beisitz  der  Wittwe"). 

3  "Roth.,"  204  {post,  "Guardianship  of  Women").  The  head  of  the 
family  alone  has  the  "potestas  de  se  ipso  disponendi";  he  disposes  of  his 
life  and  of  his  hberty  {Tacitus,  "Germ.,"  24),  reduces  himself  to  slavery  to 
pay  his  debts,  condemns  liimself  to  death  in  advance  in  case  he  shall  not  ful- 
fill liis  obligations,  promises  a  pound  of  his  flesh  in  return  for  a  sum  of  money, 
as  in  "The  Merchant  of  Venice."  He  who  is  not  "Selbmund"  has  no  right 
to  do  any  of  these  things.  To  have  an  absolute  power  of  disposal  over  one- 
self is  the  first  condition  requisite  for  the  exercise  of  domestic  authority  over 
others.  And  tliis  authority  has  analogous  effects;  the  "Selbmund"  deals 
with  others  as  he  does  with  himself:  post,  "Hostage,"  etc.;  Kohler,  "Shake- 
speare vor  dem  Forum  d.  Jurispr.,"  1884. 

^  WTien  he  says  that  voluntary  sterility  and  abortion  ("numerum  Ubero- 
rum  finire")  as  well  as  infanticide  ("quemquam  ex  agnatis  necare")  are  un- 
known to  the  Alemanni,  Tacitus,  19,  does  not  mean  to  deny  the  existence  of 
this  right;  he  limits  himself  to  showing  that  these  scourges  of  old  and  rich 
societies  have  not  reached  them;  the  coarseness  of  their  customs  kept  them 

180 


Topic  lO]  THE   PATERNAL   POWER  [§  155 

old  traditions  show  him  pronouncing  himself  upon  the  fate  of  his 
newborn  children.  By  taking  them  up  in  his  arms  he  shows  his 
willingness  to  allow  them  to  live;  otherwise,  it  is  customary  to 
expose  them.  Neither  the  relatives  nor  the  State  trouble  them- 
selves over  this  kind  of  infanticide.^  If  we  are  to  believe  Tacitus, 
30,  the  education  of  the  young  Germans  was  of  the  coarsest: 
"Dirty  and  naked,  the  child  grew  haphazard,  pell-mell  in  with 
the  animals  and  the  slaves."  If  he  had  to  be  chastised,  the  dis- 
ciplinary authority  of  the  father  seems  to  have  had  no  limits;  ^  he 
gives  his  wife  and  his  children  as  hostages;  ^  he  sells  them  as  slaves.^ 

from  the  two  former;  as  to  the  third,  they  escaped  it  without  difficulty,  the 
rigor  of  the  cUmate  and  the  lack  of  care  killing  so  many  children  that  their 
great  concern  was  to  save  those  that  remained  to  them. 

1  As  to  the  exposure  of  cliildren,  (a)  "Legislation  of  the  Lower  Empire," 
cf.  Du  Plessis,  p.  157  and  authors  cited;  (6)  Frankish  Period :  Grimm,  455, 
488;  Michelet,  "Orig.,"  p.  2;  Maurer,  "Miinch.  Akad.,"  1880,  5;  Platz, 
"Gesch.  d.  Aussetzung,"  1876;  Friedberg,  "Bussbiicher,"  39;  Du  Plessis, 
pp.  201,  342.  The  jiagan  religion  forbade  exposure  if  the  child  had  touched 
the  sacred  water  or  taken  nourishment.  The  same  rule  during  the  Christian 
period  for  the  cliild  who  had  been  baptized:  Du  Cange,  see  "Sal."  Outside  of 
poverty,  which  was  the  most  frequent  cause  for  exposure  of  children,  various 
prejudices  drove  parents  to  pursue  this  course.  Children  who  were  deformed 
were  looked  upon  as  not  belonging  to  the  human  race  {cf.  "Siete  Part.,"  IV, 
23,  5);  of  twins  they  thought  that  one  was  born  in  adultery,  cf.  the  Celts; 
exposure  of  cliildren  on  the  banks  of  the  Rhine  when  their  legitimacy  was 
doubted:  D.  Bouquet,  I,  754.  Foundhngs:  "Burg.,"  100;  Pardessus,  "L. 
Sal.,"  p.  449:  the  "nutritor"  can  treat  them  like  slaves  or  free  men,  and  in 
the  latter  case  he  is  looked  upon  as  their  father:  post,  "Adoption."  "Cone. 
Vaison,"  9,  10;  "Aries,"  452,  c.  51;  Dig.  X,  5,  11;  "Cod.  Just.,"  8,'.52,  3. 
The  custom  of  exposing  children  at  the  doors  of  churches  was  introduced  at 
an  early  period:  "Form.  Andec,"  48;  "Turon.,"  11;  "Siete  Part.,"  20.  It 
was  a  natural  transition  from  this  to  the  leaving  of  them  in  charitable  insti- 
tutions (turning-box,  etc.),  which  is  the  law  of  the  seventeenth  and  eighteenth 
centuries:  the  parents  place  in  the  swaddling  clothes  a  note  giving  the  name 
of  the  child,  so  that  they  can  find  it  again.  As  to  foundlings,  cf.  Lallemand, 
op.  cit.,  see  Freminville.  With  P.  Viollet,  p.  501,  we  think  that  our  legislation 
in  doing  away  with  these  turning-boxes,  in  showing  itself  more  severe  than 
the  old  practice,  drives  people  to  abortion  and  infanticide;  and  it  is  all  the 
more  efficacious  as  these  two  crimes  have,  so  to  speak,  ceased  to  be  punished : 
Du  Plessis,  p.  342. 

2  "Roth.,"  189,  200,  201,  222;  "Liut.,"  120;  "Wis.,"  4,  5,  1;  3,  2,  3;  3,  4, 
5;  "Burg.,"  35;  "Sal.,"  "Cap.  Extrav.,"  5;  "L.  Rom.  Cur.,"  3,  3,  18,  10. 
This  law  is  summed  up  in  the  formula  of  the  "Lib.  Papicnsis,"  with  regard 
to  the  wife.  Is  the  participation  of  near  relatives,  or  sort  of  family  council, 
necessary?  Cf.  Tacitus,  "Germ.,"  19;  Chaisemartin,  59:  the  father  judges 
the  child.  Roman  law:  Girard,  p.  11.  As  to  crimes  against  relatives,  cf.  Du 
Plessis,  p.  212.  In  the  old  law  of  the  Vestrogoths  the  murder  of  one  relative 
by  another  was  not  punished,  a  striking  proof  of  the  independence  of  the 
family  as  far  as  the  State  was  concerned. 

3  Post,  "Hostage,"  "Bord.,"  43. 

*  Sales  of  newborn  children  under  the  Lower  Empire  ("Cod.  Just.,"  4,  43, 
1);  Constantine  allows  them  only  immediately  after  the  children  are  born 
("sanguinolenti"),  "Cod.  Thdod.,"  5,  8,  1  ("L.  Rom.  Wis."),  but  it  was 
always  possible  to  buy  them  back.  Valentinian  III  facilitated  the  buying 
back  by  deciding  that  it  would  be  sufficient  to  pay  back  the  purchase  price 

181 


§  155]  THE    FAMILY  [Chap.  I 

"A  fortiori,"  has  he  the  right  to  marry  his  daughters  without  their 
consent/  and  to  pledge  his  sons  to  the  monastic  hfe,^  to  force  upon 
them  a  profession.  He  transmits  to  them  his  domicile,  his  nation- 
ality, his  station  in  life,^  and  his  religious  belief.  He  is  responsible 
for  their  offenses,^  and,  conversely,  he  takes  vengeance  on  those 
who  injure  them;  ^  he  alone  can  sue  and  be  sued.  The  children  are 
incapable  of  binding  themselves  by  contract,^  incapable  of  appear- 
and one-fifth  more:  "Nov.,"  XI  ("L.  Rom.  Wis.");  "Ed.  Pistes,"  34.  During 
the  Prankish  period,  frequency  of  these  sales  of  children:  Roziere,  "Form.," 
43  et  seq.;  Thevenin,  nos.  12,  156,  157,  etc.;  Greg.  Tours,  7,  45;  "Fris.,"  XI, 
1;  "Bai.,"  7,  4.  Motives:  poverty,  famine,  debts.  One  sells  oneself  either 
alone  or  with  one's  wife  and  children.  Cf.  "Condition  of  Persons,"  "Frank- 
ish  Period,"  "Restrictions."  "Ed.  Theodoric,"  94,  95  {Paul,  "Sent.,"  5,  1,  1; 
"Cod.  Thcod.,"  3,  3,  1;  "Int.  Wis.,"  5,  4,  12  ("Ant.  Interd.").  The  Peniten- 
tials  oblige  the  Christian  who  sells  his  child  to  buy  it  back  and  fix  an  age  after 
which  the  father  can  no  longer  sell  it:  Wasscrschleben,  "Poen.,  Th.,"  II,  12, 
etc.;  Lallemand,  p.  94;  "Capit."  (I,  114,  293),  803,  c.  8;  819,  c.  6  ("Buying 
back");  "Petrus,"  I,  14  (cf.  "Cod.  Just.,"  4,  43,  2).  As  to  sales  as  serfs: 
"Boideaux,  A.  C,"  43;  Du  Cange,  see  "Oblati,  Schwab.  Emp.,"  357;  Act  of 
1440  ("Acad.  L6g.  Toulouse,"  VI,  169):  Bazas,  1489,  171  ("Arch.  Hist. 
Gironde,"  XV,  83);  "Toulouse,"  155a;  Schwabenspiegel,"  357;  Muratori, 
"Script.,"  V,  556  (in  1058);  "R.  h.  Dr.,"  1859,  129;  Grotius,  II,  5,  5  (the  nat- 
ural law  allows  parents  to  sell  their  children);  "Siete  Part.,"  IV,  17,  8;  the 
father  besieged  in  a  castle  may  eat  liis  son  rather  than  surrender  without 
being  ordered  to  do  so  by  his  lord. 

1  Du  Plessis,  p.  227;  "Capit.  Remedii,"  5;  "Burg.,"  100;  "Wis.,"  3,  3,  11; 
3,  1,  4  and  3,  4;  "Liut.,"  120;  Kovalewsky,  p.  193. 

2  "Cone.  Tolede,"  633,  c.  49;  cj,  id.,  665,  c.  6  (up  to  the  age  of  10  years); 
"Worms,"  868,  c.  22,  23.  But  from  this  period  on  there  are  decisions  to  the 
contrary:  Thomassin,  "Discipl.  de  I'Eglise,"  I,  1765;  St.  Leo  to  Rusticus, 
"Ev.  de  Narbonne"  (in  458);  "Nov.  Major.,"  8;  Gratian,  C,  20,  q.  1, 
0.  1;  "Pseudo  Isidor.,"  p.  352;  Du  Plessis,  p.  225.  And,  finally  (twelfth,  thir- 
teenth centuries)  the  Church  ended  by  demanding  a  ratification  by  the  child 
when  he  was  of  an  age  to  understand  the  meaning  of  an  entry  into  religious 
orders:  "Capit.,"  817,  c.  36  (I,  346);  Dig.  X,  III,  31,  14;  "Sachsensp.,"  I, 
25,2;  "Liut.,"  30. 

^  Cf.,  however,  "Condition  of  Persons." 

*  "Sal.,"  24,  5;  Geffcken,  "h.  t.  Roth.,"  263;  "Alb.,"  II,  55;  and  Lombard 
Forms  cited  by //eusZer.  Proliibitionatlaw:  "Sachsensp.,"  II,  18,  2;  "T.  A.  C, 
Bret.,"  204.  Was  a  giving  up  of  the  child  causing  an  injury  to  the  person  in- 
jured possible?  Girar-d,  "_N.  R.  H.,"  1888,  47;  Leseur,  i6.,  18.  The  father  who 
did  not  have  the  wherewithal  to  pay  the  composition  which  was  due  because 
of  an  offense  committed  by  his  son  had  undoubtedly  the  power  to  deliver  up 
the  latter  as  a  slave  in  payment.  But  the  texts  do  not  mention  a  giving 
up  of  the  child  causing  an  injury  to  the  person  injured,  properly  so  called, 
resulting  in  the  allowing  of  the  exercise  of  the  right  of  vengeance  and  a  re- 
lease of  the  father,  although  the  pecuniary  value  of  the  son  might  be  very 
much  less  than  the  amount  of  the  composition:  "Roth.,"  142;  "Sal.,"  40; 
"Sax.,"  18,  50;  "Schwabenspiegel,"  II,  3;  Kraut,  I,  346  (traces  in  the  Middle 
Ages). 

*  Offenses  against  a  son  are  a  violation  of  the  paternal  "mundium."  There- 
fore, the  father  alone  benefits  by  the  composition,  and  the  child,  although  he 
be  a  victim  of  the  offense,  has  no  right  to  even  a  fraction  of  it.  Cf.,  however: 
"Wis.,"  3,  3,  11;  8,  5,  3;  "Bai.,"  4,  28;  5,  9;  8,  10  and  9,  4;  "Sal.,"  39,  24, 
5,  40;  "Sax.,"  20;  "Roth.,"  26,  201,  129;  "Liut.,"  146;  "Cod.  Lauresch.," 
n.  95  (in  1023);  Roz.,  467  et  seq.;  Heusler,  I,  124. 

6  "Rib.,"  74;  "Burg.,"  87;  "L.  Pap.,"  22,  170;  cf.  "L.  Pap.,"  "Roth.," 

182 


Topic  lO]  THE    PATERNAL   POWER  [§  157 

ing  in  court;  it  is  with  the  father  alone  that  third  parties  have  to 
deal. 

The  inheritance  of  the  family  absorbs  the  acquisitions  which 
they  make,  so  much  so  that  they  possess  nothing  of  their  own.^ 
It  is  thus  true  to  say  that,  body  and  possessions,  the  children  are 
in  the  hand  of  the  father;  the  logic  of  the  patriarchal  family  re- 
quires this  to  be  so.  Their  personality  is  absorbed  in  the  abstract 
being  of  which  the  father  is  the  only  legal  representative. 

§  156.  "  Mundium  "  and  "  Patria  Potestas." — An  opinion  for- 
merly widespread  contrasted  the  Germanic  "mundium"  with  the 
"patria  potestas,"  as  being  two  institutions  of  a  contrary  nature; 
the  "mundium"  would  be  looked  upon  as  a  tutelary  power  es- 
tablished simply  in  the  interest  of  the  child,  whereas  the  "patria 
potestas"  seemed  to  be  created  for  the  advantage  of  the  father.^ 
One  can  only  invoke  in  support  of  this  thesis,  outside  of  the  texts 
which  at  an  early  period  modified  the  old  law  under  the  inflwence 
of  Roman  and  Christian  customs,^  two  facts:. 

§  157.  The  Same.  —  (I)  The  limited  duration  of  the  "  mun- 
dium" in  contrast  to  the  yerpetuity  of  the  "patria  potestas."^  But 
nothing  proves,  as  is  maintained,  that  the  "mundium"  ceases  as 
a  matter  of  law  on  the  coming  of  age  of  the  son :  ^  on  the  con- 

139  ("Women");  Greg.  Tours,  VIII  ("Son  in  Flight");  "Cap.,"  819  (I,  293); 
829,  c.  4. 

1  In  tlie  Lombard  laws  the  son  is  likened  to  the  slave  in  this  respect:  the 
father  is  not  held  to  be  bound  by  the  contracts  of  either  one  of  them:  "Roth.," 
170,  200,  204  et  seq.;  233  et  seq.;  262;  "Liut.,"  78,  87  (c/.  "Lib.  Pap.  Exposi- 
tio");  "Wis.,"  4,  2,  13  ("Ant.");  4,  5,  5;  "L.  Rom.  Cur.,"  24,  8;  "Cap.  Extr. 
Sal.,"  8;  "Rib.,"  74. 

2  Pnrdessus,  "L.  Sal.,"  p.  451;  Glasson,  op.  cit. 

2  We  know  that  the  Roman  "patria  potestas"  had  become  modified  dur- 
ing the  pagan  period  and  under  the  Lower  Empire;  the  movement  in  tliis 
direction  was  carried  on,  although  there  was  no  thought  of  limiting  its  dura- 
tion: Cornil,  "N.  R.  H.,"  1897. 

''  Controversy:  Heusler,  II,  437;  Kraut,  II,  591;  Pardessus,  p.  455;  Fertile, 
p.  376;  Freund,  "Was  in  der  Were  Verstirbt,"  1880. 

^  Tacitus,  "Germ.,"  13.  —  Taking  up  Arms  in  the  Public  Assembly  does 
not  carry  with  it  civil  emancipation.  The  young  man,  who  is  thereby  recog- 
nized as  being  fit  to  bear  arms,  becomes  "pars  civitatis"  (political  rights) 
without  ceasing  to  be  "pars  domus":  "Sachsensp.,"  I,  2,  1.  The  youth 
who  has  attained  majority  presents  himself  before  the  court.  Cf.  Roman 
law.  Po.Ht,  "  Adoption  by  Means  of  Arms."  Cassiod.,  "  Var.,"  II,  38  ("  Gothis 
setatem  legitimam  virtus  facit");  "Roth.,"  204;  "Capit."  (I,  285),  c.  21; 
"Wis.,"  4,  2,  13.  Pardessus,  "L.  Sal.,"  p.  4.54,  sees  in  the  Cutting  of  the  Hair 
an  act  of  emancipation,  a  ceremony  bearing  witness  to  "the  passing  from 
childhood  to  majority."  The  gifts  which  were  made  on  this  occasion  to 
children  consisted  in  objects  intended  for  their  personal  use,  which  were  of 
little  value:  "Sal."  (Hessels),  100,  24,  69;  Geffcken,  "L.  Sal.,"  pp.  134,  235, 
253  (bibl.);  Potkanski,  "Haarschur,"  1896;  Z>u  Cangre,  see  "Capill us,"  "Lom- 
bard Laws"  daughters  "in  ca})illo"  who  were  unmarried).  The  right  to  "tun- 
dcre"  the  "puer  crinitus"  only  belongs,  according  to  the  SaUc  Law,  to  the 

183 


§  157]  THE   F.AJVIILY  [Chap.  I 

trary,  that  which  we  know  with  regard  to  the  constitution  of 
the  family  and  the  later  law  leads  us  to  believe  that  it  lasts  as 
long  as  the  latter  continues  to  live  with  his  father.  If  emanci- 
pation does  not  take  place  as  a  consequence  of  age/  it  can 
take  place  as  the  consequence  of  the  establishment  of  a  separate 
home;  and  this  comes  about  in  three  instances:  1st,  the  father 
drives  the  son  away  from  the  house  ;^  2d,  the  son  goes  away 
with  his  father's  consent;^  3d,  finally,  without  being  formally 
emancipated,  without  having  the  authority  to  do  so,  the  son 
leaves  the  paternal  home,  in  the  rather  rare  cases  where  he  can 
find  some  advantage  in  so  doing.^  The  absence  of  exact  texts 
scarcely  admits  of  a  positive  statement,  but  such  is  the  social 
condition  of  ancient  Germany  that  these  three  suppositions  must 
have  been  looked  upon  as  being  legal.  There  is  no  need  to  look 
anj^'here  else  for  the  origin  of  the  Customary  rule:  "paternal 
power  does  not  exist." 

"parentes"  (that  is  to  say,  to  the  father,  or,  if  there  is  no  father,  to  the  near- 
est agnate)  and  no  doubt  to  any  person  to  whom  the  "parentes"  might  delegate 
it  (case  of  adoption).  The  first  cutting  of  the  hair  was  thenceforth  a  private 
ceremony,  previous  to  and  preparatory  for  the  public  taking  up  of  arms. 
Tlie  wearing  of  long  hair  being  the  distinctive  indication  of  those  who  were 
freeborn,  the  hair  should  not  be  cut  close  to  the  head  like  that  of  a  slave, 
but  trimmed  in  a  certain  fasliion:  Du  Plessis,  p.  107. 

1  Controversy:  Kraut,  II,  590,  etc.  Having  attained  majority,  the  child 
is  sufficiently  strong  to  dispense  with  a  protector;  if  the  "mundium"  per- 
sists it  is  because  it  relates  especially  to  the  formation  of  the  family.  Cf., 
however,  Gide,  p.  199.  Giving  up  b}^  the  father  as  a  consequence  of  old  age 
among  the  Scandina^vians:  Ozanam,  "Etudes  German.,"  I,  120.  The  Herules 
cast  their  sick  and  their  old  men  into  the  flames.  In  Sweden  fathers  who 
Uved  too  long  avoided  the  impatience  of  their  sons  by  throwing  themselves 
from  the  rocks:  Grimm,  I,  669-675,  4th  ed. 

2  Cf.  "Adulterous  Wife":  expulsion  "coram  propinquis":  "For  de 
Morlaas,"  345;   Masuer,  40,  5  (refusal  of  maintenance). 

^  Analogies  drawn  from  the  Slav  family:  Demelic,  "Dr.  Cout.  des  Slaves," 
p.  56. 

*  The  Roman  "pater"  is  furnished  with  the  means  of  bringing  back  by 
force  his  son  who  runs  away.  But  that  which  was  possible  in  a  well-ordered 
society  like  that  of  Rome  was  scarcely  possible  among  the  Germanic  tribes. 
Cf.  "Abdicatio  parentetse,"  "L.  Sal.,"  63;  Glasson,  III,  56;  Geffcken,  on  this 
text;  "L.  Henri,"  I,  88.  See,  however,  Demelic,  pp.  48,  133;  Dareste,  "Etudes," 
138,  242;  Maine,  "Cout.  Prim.,"  165.  To  break  ofT  every  tie  with  one's 
relatives  was  an  extreme  measure,  to  which  one  could  only  make  up  one's 
mind  with  difficulty.  All  the  more  was  this  so  because  the  son  who  had 
attained  majority  and  who  had  left  his  father  without  being  authorized  to  do 
so,  undoubtedly  lost  all  right  to  those  partitions  "inter  vivos"  to  whicli  allu- 
sion is  made  in  the  "L.  Burg.,"  51;  "Bai.,"  1;  post,  "Inheritance."  —  The  ser- 
vice after  apprenticeship,  carrying  with  it  a  change  of  "mundium,"  was  bound 
to  emancipate  a  man  from  the  paternal  power:  "L.  Rom.  Cur.,"  22,  6;  23, 
7;  24,  8;  Schupfer,  "Stud.  s.  1.  Udin.,"  50;  Beguelin,  "Les  Fondements  du 
R6g.  Feodal  dans  la  L.  Rom.  Cur.,"  1893,  p.  53;  Zanetti,  "La.  L.  Romana 
Retica  Coirese,"  1900;  Heusler,  II,  435;  Du  Plessis,  p.  100  et  seq.  Cf.  on 
abduction,  "Roth.,"  186. 

184 


Topic  lO]  THE   PATERNAL   POWER  [§  159 

§158.  The  Same.  —  (II)  The  conception  oj  family  joint  owner- 
ship, almost  extinguished  in  Rome  before  the  absolute  power  of 
the  "pater,"  persists,  on  the  other  hand,  in  the  barbarian  so- 
ciety; witness  the  intervention  of  the  children  in  alienations 
made  by  the  father,^  and  the  partitions  of  the  inheritance  of 
the  family  carried  out  during  his  lifetime.-  These  restrictions 
upon  the  paternal  power,  however  remarkable  they  may  be,  did 
not  change  its  essential  character,  especially  if  one  admit  that  it 
depends  upon  the  father  as  to  whether  he  shall  emancipate  his 
children  by  force,  and  thus  deprive  them  of  all  these  rights.^ 

§  159.  Transformation  of  the  "Mundium." — The  gradual  dis- 
integration of  the  patriarchical  family  caused  the  "mundium" 
to  lose  some  of  its  harshness.  Christianity,  with  its  conceptions 
of  charity  and  the  spiritual  independence  of  the  members  of  the 
family,  having  this  object  in  view,  became  the  ally  of  the  indi- 
vidualistic tendency;  ^  it  maintained  alongside  of  the  duties  of  the 
children  towards  their  parents  the  reciprocal  duties  of  the  parents 
towards  their  children ;  °  it  likened  the  mother  to  the  father,  it 
made  no  distinction  between  the  sons  and  the  daughters.^  After 
having  contributed  to  the  softening  of  theRoman"  patriapotestas,"^ 
according  to  the  custom  set  by  the  pagan  emperors,  it  had  to  at- 
tack the  barbarian  "mundium"  in  order  to  restrain  its  effects.^ 

1  Numerous  examples  in  the  Cartularies,  "Cap.  Kiersy,"  5  (II,  357); 
"Liut.,"  149.  If  given  by  a  minor,  this  consent  is  worth  notliing,  or,  rather, 
can  be  annulled:  Heusler,  II,  445. 

2  "Burg.,"  24,  51,  75,  78;  "Bai.,"  1;  "Roth.,"  168;  "Expos,  ad  Liut.," 
113;  "Sax.,"  62;  "Wis.,"  4,  2,  13;  Schroeder,  p.  320;  Grwwi,  p.  486;  post, 
"Inheritances."  Italian  Statutes  cited  by  Fertile,  III,  380;  Brunneck, 
p.  51;  "St.  de  Corse,"  1571,  I,  46;  "Schwabensp.,"  61.  Many  of  these  texts 
seemed  to  refer  to  the  case  in  wliich  the  mother  is  dead  or  her  possessions 
have  been  mingled  with  those  of  the  father:  see  already  in  tlie  "L.  Sal.," 
"Capit.  Extrav.,"  8.  With  respect  to  these  possessions  the  law  of  Upland 
makes  the  nearest  relative  of  the  predeceased  wife  a  joint  owner  with  the 
husband:  Rive,  I,  59. 

^  Cf.  in  Rome,  "patria  potestas"  and  "querela  inoff.  test."  Obligation  of 
giving  the  daughter  a  marriage  portion:  Papien,  37,  1;  "Wis.,"  3,  1,  9.  —  As 
to  disinheritance  during  the  barbarian  period:  see  "Wis.,"  4,  5,  1;  "Alam.," 
1,  and  n.  2. 

*  To  the  saying  of  St.  Thomas:  "Sent.,"  2,  33,  1,  1:  "Non  est  parentis 
sed  ipsius  Dei"  ("quantum  ad  animam")  let  us  liken  the  Revolutionary 
doctrine:  "The  child  belongs  to  the  State  rather  than  to  his  parents. "  Bourjon, 
I,  5,  1,  1,  already  expressly  says  so. 

5  St.  Paul,  "Coloss.,"  iii,  10,  21;  "Ephes.,"  vi,  1,  3,  4;  "1  Tim.,"  v,  4,  8 
St.  Augustine,  "Serm.,"  356,  no.  5;  "Jostice,"  p.  210. 

«  St.  Paul,  "Galat.,"  iii,  26.      _ 
•    ^  The  death  penalty  for  infanticide,  abortion  and  exposure  of  children 
Lactant,  "Inst.  Div.,"  VI,  20;  "Cod.  Theod.,"  XI,  27,  1,  etc.     Details,  as 
well  as  those  on  the  sale  of  children,  in  Du  Plessis,  op.  cit. 

^  Exaggerations,  for  example,  with  respect  to  the  children  of  the  Jews 

185 


§  160]  THE    FAMILY  [Chap.  I 

§  160.  Customary  "Mainbournie"  ^  (guardianship)  is  nothing 
more  than  the  old  "mundium"  reduced,  httle  by  httle,  so  as  to 
allow  of  no  rights  excepting  those  necessary  to  the  protection  of  the 
child;  it  is  a  power  of  protection,  according  to  a  current  expres- 
sion, entirely  in  the  interest  of  the  children,^  a  true  guardianship, 
ending  when  they  come  of  age,  that  is  to  say,  at  the  time  when 
they  no  longer  have  any  need  of  protection  exercised,  if  need  be, 
by  the  mother  when  the  father  is  dead,  absent,  or  incapacitated, 
allowing  the  child  to  have  separate  possessions  distinct  from  hose 
of  the  parents.  There  are  the  same  number  of  characteristics 
which  distinguish  it  from  the  Roman  "patria  potestas"  of  the 
countries  of  written  law.  This  latter  lasts  during  the  life  of  the 
father;  if  the  grandfather  is  alive,  it  is  he  who  has  authority  over 
his  grandsons,  as  well  as  over  his  sons;  it  never  belongs  to  the 
mother;  the  father  has  the  profits  of  possessions  which  the  son 
may  happen  to  receive;  finally,  although  he  has  capacity  to  bind 
himself,  the  son  can  neither  make  a  will  nor  borrow  money  (]\Iace- 
donian  Decree  of  the  Senate).  The  contrast  between  the  two 
legislations  which  governed  France  is  that  on  this  point  they  say: 
in  countries  of  Custom,  the  power  of  the  father  has  no  existence;  ^ 
the  children  are  vowed  to  or  under  the  guardianship  of  their  par- 
ents."* One  must  take  care,  however,  not  to  exaggerate  this  con- 
trast. The  Roman  "patria  potestas"  often  comes  to  an  end  by 
means  of  a  formal  emancipation;  jurisprudence  also  introduced 

"Conc.deTolede,"IV,59;  "Meaux,"845,c.  75;  Dig.X,28, 1,11;  TheMortara 
Case  under  Pius  IX. 

1  "Jost.,"  p.  57,  158;  Beaumanoir,  c.  15;  "Et.  de  Saint  Louis,"  I,  73; 
IV,  270  (ed.  Viollet);  "Navarre,"  24  ("De  Pay  et  Firk");  "Siete  Part.," 
IV,  17;  Lamoignon,  "Arretes,"  p.  5;  Degheiviet,  p.  59;  "Gr.  Encyclop.," 
see  "Mainbour."  Cf.  various  writings,  such  as  the  "Castoiement  d'un 
Pere  k  son  Fils"  (in  imitation  of  a  Latin  poem  of  the  twelfth  century).  The 
child  always  acquires  the  station  of  the  father  ("Jostice,"  p.  56),  his  nation- 
ality, his  domicile,  even  his  name,  so  long  as  there  existed  patronymic  names : 
Lallier,  "Propr.  des  Noms  et  des  Titres,"  1890. 

2  Coquille,  "Inst.,"  p.  106:  the  paternal  power  is  imaginary,  for  the  parents 
have  scarcely  any  more  rights  over  the  person  and  the  possessions  of  their 
cliild  than  guardians  have  with  respect  to  their  wards;  Du  Vair  (cited  by 
Ferriere,  see  "Puiss.  Pat."):  this  absolute  sway  (which  fathers  had  over 
their  cliildren  at  Rome)  is  changed  on  their  behalf  into  a  kindly  affection, 
and  this  slavery  on  the  part  of  the  children  into  an  honorable  relation; 
Boutaric,  "Inst.,"  9,  2,  compares  the  father  to  a  guardian.  According  to 
Blackstone,  the  power  of  the  father  over  his  children  is  derived  from  his 
duties  towards  them.  Heusler,  II,  449,  remarks  that  the  power  of  the  father 
has,  however,  kept  more  of  its  old  characteristics  than  guardianship  has. 

^  Loysel,  55.  This  gibe  is  the  translation  of  the  Commentary  on  thS 
"Inst,  de  Pat.  Pot.";  Fertile,  §  115. 

^  Loysel,  177;  Desmares,  248;  Boerius,  q.  167;  13,  14;  Gtii  Pape,  410; 
Brodeau,  "M.,"  18;  D'Argentre,  on  "Bret.,"  498;  Henrys,  "Qu.,"  127. 

186 


Topic  lO]  THE   PATERNAL  POWER  [§161 

tacit  emancipation,  for  example,  when  it  resulted  from  marriage;  ^ 
the  possessions  of  the  son  who  is  not  emancipated  which  apper- 
tain to  the  camp  are  his  exclusive  property;  in  relation  to  these 
possessions  he  has  a  right  to  make  a  will,  and,  as  far  as  his  other 
possessions  are  concerned,  he  can  give  them  "causa  mortis." 
Thus  the  condition  of  the  son  of  good  family  in  the  South  is  like 
that  of  the  elder  son  in  countries  of  Customs,  and,  on  the  other 
hand,  we  shall  see  that  the  latter  is  far  from  always  having  enjoyed 
the  independence  which  one  is  in  the  habit  of  crediting  him  with.^ 
§161.  Rights  over  the  Person.^  Correction. — The  paternal 
power  gives  the  father  the  right  to  have  the  custody  of  the  child,^ 
to  bring  him  up,^  and,  secondly,  to  choose  his  religion,^  to  designate 
his  teachers,  and,  finally,  to  correct  him,^  without  which  the  pre- 
ceding rights  would  have  very  little  effect.  The  father's  authority 
to  discipline  is  still  very  extended  in  the  feudal  period.^  He  could 
thrash  the  child, ^  provided  he  does  not  seriously  wound  him:  an 
important  restriction  which  permits  the  son  to  call  upon  the  law 

1  "Navarre,"  24,  8:  the  heirs  and  heiresses  who  are  married  in  the  house 
become  joint  owners  with  their  relatives  both  of  the  house  and  the  acquired 
and  inherited  possessions. 

2  Children  of  25  who  have  attained  majority  and  have  been  sent  into  the 
country  upon  the  request  of  their  fathers,  as  late  as  1673,  ought  not  to  think 
the  paternal  power  an  empty  form. 

^  Traces  of  the  old  law.  For  example,  in  Normandy  {Marnier,  "Etabl.," 
26),  the  death  penalty  is  not  inflicted  upon  the  father  who  kills  his  child: 
"  Bergerac,"  82;  cf.  Bout.,  I,  18;  II,  40;  "Et.  de  Saint  Louis,"  I,  39;  Viollet,  ib., 
I,  249;  Vitry,  100,  148;  "Bord.,"  43  (pledging);  Mesle,  op.  cit.  passim.  As  to 
testamentary  guardianship,  cf.  post. 

*  After  the  age  of  16  years  one  can  bind  oneself  without  authorization  in 
the  king's  army :  "Beaune,"  543;  /sa7n6er<,  see  Table,  "Arm^e  Recrutement." 

*  Post.  Custom  for  vassals  to  send  their  sons  to  the  court  of  the  lord: 
Gautier,  "Chevalerie."     "Atalikat"  in  the  Caucasus:  Kovalewsky,  p.  190. 

^  As  to  religious  education,  Schulte,  "Eherecht,"  320,  535.  Against 
Protestants,  legislation  which  overthrows  the  paternal  power:  Deck,  June 
17,  1G81  (they  are  allowed  to  renounce  after  the  age  of  7  years).  Edict  of 
Revocation  of  1685,  Art.  8.  The  Edict  of  January,  1686,  orders  that  chil- 
dren from  5  to  16  years  old  shall  be  taken  away  from  their  parents  when  the 
latter  are  heretics  (e.  g.,  children  of  the  Duke  of  La  Force).  Deck,  Dec. 
13,  1698;  May  13,  1724.  In  1686  parents  who  had  emigrated  lost  the  right 
to  consent  to  the  marriage  of  their  children  who  had  remained  in  France: 
Niron,  II,  964.  The  Edict  of  1787  cancelled  these  provisions:  Du  Plessis, 
p.  375.  England:  provisions  against  the  CathoUcs:  Blackstone,  op.  cit.,  II, 
p.  172;  Lehr,  p.  115. 

''  Right  to  receive  respect:  the  testimony  of  the  son  is  not  admitted  against 
the  father  (Dig.,  22,  5,  4,  9;  "Petrus,"  IV,  40;  "L.  d.  Droiz,"  224;  "  Ord.," 
1667,  22,  2,  and  reciprocally) ;  the  son  cannot  act  against  the  father  without 
the  authorization  of  the  law:  Dig.,  2,  4,  4;  "Petrus,"  III,  63;  "Jostice,"  2, 
4,  3;  "Siete  Part.,"  IV,  17,  11:  cf.  Houard,  "Dictionn.,"  see  "Enfants." 

8  "Kl.  Kaiserrecht,"  II,  7. 

^  Corporal  punishment  was  for  a  long  time  made  use  of  in  schools  and 
families.  Henry  IV  had  often  had  the  whip,  and  he  recommended  that  it 
be  given  to  his  son  (Louis  XIII).     Harshness  in  education,  coldness  in  its 

187 


§  IGl]  THE   FAMILY  [Chap.  I 

in  the  case  of  ill-treatment  on  the  part  of  his  father.^  He,  the 
father,  could  keep  the  child  shut  up  in  a  room,  or  cause  him  to  be 
incarcerated  in  a  convent  or  a  public  prison,  after  private  seques- 
tration had  gone  out  of  use.^  Prison  was  a  step  in  advance  over 
the  latter,  and  the  despotism  of  the  head  of  the  family  then  found 
itself  limited  by  the  necessity  of  appealing  to  public  authority.^ 
The  jurisprudence  of  the  monarchic  period  regulated  the  exercise 
of  the  paternal  power  in  cases  of  this  sort:  ■*  the  father  was  able 
upon  his  own  authority  to  cause  his  child  of  less  than  twenty-five 
to  be  shut  up  in  a  house  of  correction;  but,  if  the  father  had  re- 
married, an  order  of  the  judge,  given  ordinarily  upon  notice  by 
the  parents,  was  required.  As  to  the  mother,  she  could  never 
obtain  the  incarceration  of  her  son  without  the  authorization  of 
law,  "the  weakness  of  woman's  judgment,  and  the  characteristic 
of  being  carried  away  which  is  common  enough  in  the  case  of  this 
sex,"  says  Pothier,  "prevents  one  from  being  able  to  rely  upon 

relations,  —  that  was  the  old  family.  Cf.  Bodin,  "Republ.,"  I,  4;  Montaigne, 
I,  25:  "Away  with  violence  and  force;  there  is  nothing  in  my  opinion  which 
so  degrades  and  stupefies  a  well-born  nature."  The  advice  would  be  good  if 
there  were  none  but  well-born  natures.  As  a  consequence  of  having  followed 
it,  our  time  has  made  of  many  cliildren  hateful  httle  tyrants. 

1  "Montpelher,"  64;  cf.  "Jostice,"  2,  15,  2  (p.  59).  In  the  sixteenth  cen- 
tury a  recourse  to  the  law  is  the  rule  if  there  is  any  cruelty:  Pasquier,  "Inst.," 
p.  64;  Chaisemartin,  60. 

2  "Liege"  (cited  by  Couilland,  "These,"  p.  181):  the  parents  can  beat 
and  correct  their  children  without  being  hable  to  pay  any  fine  at  law,  except- 
ing in  case  they  wound  them.  They  can  shut  them  up  in  a  room  for  a  short 
time,  but  they  cannot  have  them  imprisoned,  especially  outside  of  the  country, 
without  a  decree  from  the  ecclesiastical  judge  of  Liege  or  the  ordinary  judge 
of  the  locaUty,  which  they  should  obtain  and  show  to  the  jailor  within  three 
days  of  the  imprisonment:  "Schwabenspiegel,"  I,  190  (right  of  the  master  to 
beat  the  child  which  is  entrusted  to  him);  II,  26;  Stobbe,  §  252.  —  "Mont- 
pellier,"  64;  "Agen,"  22.  Corporal  correction  in  English  law,  but  not  im- 
prisonment. It  is  otherwise  in  Italy:  Fertile,  III,  378;  "Ivree":  banishment; 
"Frioul":  expulsion  from  the  house.  Under  such  conditions  as  these  rever- 
ential fear  is  not  an  idle  term. 

^  Limited  to  a  very  slight  extent  at  first,  the  State  accepting  the  penalties 
decreed  by  the  father  of  the  family  with  its  eyes  shut.  We  must  wait  until 
1673  to  be  sure  of  an  energetic  exercise  of  public  powers:  Merlin,  see  "Cor- 
rection"; Brillon,  see  "Debauche." 

*  In  Paris,  in  1673,  men  30  years  old,  priests,  were  thus  held  in  custody  by 
way  of  paternal  correction.  A  regulating  order  (March  9,  1673)  was  neces- 
sary in  order  to  restrict  the  exercise  of  this  right  to  the  age  of  25  years.  And 
even  after  tliis  the  father  could  still  resort  to  the  obtaining  of  an  order  of 
arbitrary  arrest  against  his  son  who  was  of  age  (e.  g.,  Mirabeau  was  incar- 
cerated in  the  Chateau  d'lf  in  1774:  Joly,  "Proces  des  Mirabeau,"  1863, 
p.  61  et  seq.).  Thus  Orders  of  Arbitrary  Arrest  had  an  entirely  different 
effect  from  that  which  one  is  accustomed  to  look  upon  them  as  having;  they 
become  a  means  whereby  parents  could  protect  the  honor  of  the  family;  they 
were  granted  for  family  reasons,  and  not  for  reasons  of  State  alone.  Cf. 
"Ord."  of  April  20,  1684;  July  15,  1763  (deportation  to  D^sirade,  where  they 
became  colonists);  Viollet,  p.  506,  n.  2. 

188 


Topic  lO]  THE   PATERNAL   POWER  [§  162 

the  mother  as  one  can  upon  the  father."  ^  To  sum  up,  the  parents' 
right  of  correction  ended  by  not  being  exercised  excepting  with 
the  co-operation  of  the  courts.^  This  intervention  of  pubhc  au- 
thority in  a  domain  where  formerly  it  did  not  penetrate,  unless 
by  way  of  exception,  has  become  frequent  and  normal:  the  family 
autonomy  no  longer  exists;  the  father  of  the  family  must  account 
to  the  State  in  the  exercise  of  his  power. 

§  1C2.  The  Duties  of  Parents.  —  The  obligation  of  parents  to 
bring  up,  to  support,  to  protect  their  children,  and  even  to  start 
them  in  life,  remained  for  a  long  time  in  rather  an  indefinite  con- 
dition and  without  authority.^  Before  the  enactment  of  the  laws 
bearing  upon  the  reforms  which  decreed  compulsory  instruction, 
education  was  given  without  any  rule,  at  the  pleasure  of  the  par- 
ents.* To  protect  the  children,  that  is  to  say,  to  be  their  legal 
representative,  to  assist  them,  to  administer  their  possessions,  was 
rather  a  right  than  a  duty.  The  same  thing  applied  to  support: 
it  is  not  without  difficulty  that  the  courts  have  acquired  a  power 
of  regulation  in  these  matters.^  As  far  as  the  start  in  life  of  the 
children  is  concerned,  we  shall   see  later  on,  when  dealing  with 

'  The  guardian  cannot  have  the  ward  detained  excepting  upon  the  order 
of  a  judge  and  notice  to  the  relatives:  Pothier,  "Personnes,"  I,  4,  3,  2,  1; 
MesU,   I,  260. 

2  Forfeiture  of  the  paternal  power:  Beaumanoir,  21,  12  et  seq.;  Masuer, 
5,  1;  Loysel,  I,  4,  22;  Declar.  March  8,  1704;  Stobbe,  §  252,  n.  2;  cf.  Law 
of  July  24,  1889.     On  the  English  law,  cf.  Lehr,  p.  117. 

^  The  authority  was  with  great  difficulty  established,  and  only  in  an  im- 
perfect manner. 

*  Natural  law:  Blackstone,  loc.  cit. — The  question  of  the  education  of 
the  children  is  arbitrarily  decided  by  the  judge:  Cormis,  "Consult.,"  II,  1130; 
Soefve,  "Quest.,"  2,  3,  30.  The  Declaration  of  May  24,  1724,  provides  for 
the  establishment  of  schools  in  every  parish  and  compels  parents  to  send 
their  children  to  them  until  they  attain  the  age  of  14  years;  this  was  designed 
especially  with  a  religious  object;  the  important  tiling  was  to  instruct  the 
children,  especially  the  children  of  Protestants,  in  the  mysteries  of  the  Catho- 
lic religion:  cf.  Edict  of  1695.  But  these  laws  were  badly  applied:  Chamjnon, 
"La  France  d'ap.  les  Cahiers  de  1789,"  p.  205.  The  Decree  of  the  29th 
Frim.,  year  II,  also  made  primary  instruction  compulsory:  cf.  Law  of  March 
28,  1882.  Danton:  "After  bread  education  is  the  first  need  of  the  people." 
The  projected  Civil  Code,  1,  5,  2,  compelled  parents  to  have  their  children 
taught  a  trade  {cf.  Rousseau  in  "Emile"). 

^  English  legislation  greatly  limits  the  right  of  being  supported.  This 
right  exists  only  so  long  as  the  child,  because  of  his  health  or  his  age,  is  not  in 
such  a  condition  as  to  be  able  to  provide  for  his  own  needs;  in  such  a  case  as 
this  he  is  only  allowed  to  ask  for  an  allowance  of  325  francs  per  annum  at  the 
most.  The  compulsion  exercised  over  the  parents  only  is  seen  under  the 
form  of  a  distraint  by  the  church  wardens  and  inspectors  of  the  parish;  in 
other  words,  they  do  not  admit  of  a  family  being  able  to  free  itself  of  the 
care  of  its  poor  at  the  expense  of  the  parish :  Lehr,  p.  1 14.  The  jurisprudence  of 
other  countries  is  broader:  Brilnneck,  p.  50  (Sicily);  "Siete  Part.,"  IV,  19; 
Chaisemartin,  63:  "a  father  can  better  nourish  ten  children  than  ten  children 
a  father." 

189 


§  162]  THE    FAMILY  [Chap.  I 

emancipation,  the  rules  of  the  very  old  law.  During  the  monarchic 
period  the  majority  of  the  Customs  adhered  to  the  principle:  "no 
marriage  portion  for  him  who  does  not  wish  it,"  ^  whereas,  in 
countries  of  written  law  and  in  Normandy,  the  parents  are  held 
under  a  strict  obligation  to  give  their  daughters  a  marriage  por- 
tion.^ The  start  in  life  by  means  of  a  marriage  or  entering  into 
religious  orders  was  at  first  imposed  by  the  parents  upon  the 
children  who  were  under  their  power;  in  time,  under  the  influence 
of  the  Church,  these  acts  became  free;  but  the  State,  represent- 
ing the  old  Customs,  was  opposed  to  reform  ^  (nullity,  dis- 
inheritance, advantages  to  the  profit  of  one  of  the  children).'* 

§  163.  Rights  over  Possessions.  —  For  a  long  time  the  persist- 
ence of  family  joint  ownership  was  opposed  to  the  son  who  lived 
with  his  father  having  possessions  of  his  own;  again,  in  the  thir- 
teenth century,  what  he  acquires  he  acquires  for  the  benefit  of  his 
father,  even  although  he  may  be  of  age.^  The  latter,  however, 
has  only  the  administration  and  the  enjoyment  of  the  personal 
belongings  gathered  by  the  child  through  inheritance  from  his 
mother  or  his  maternal  relatives  (lease  or  custody,  continuation 
of  joint  ownership).^     With  the  disorganization  of  the  family 

1  Roman  origin:  Masuer,XlY,  12;  "Auv.,"  12,  30;  "Bord.,"43;  "Metz.," 
1,  113.  Prohibition  of  disinheriting  a  daughter  who  has  only  been  guilty 
of  misconduct  after  having  attained  the  age  of  25  years:  "Normandie"; 
"Navarre,"  24,  6;  Marnier,  p.  181;  -post,  "Proper  Marriage."  —  As  to  ex- 
cessive marriage  portions,  cj.  Edict  of  Roussillon,  1563,  17. 

2  Montesquieu  does  not  admit  that  there  is  any  obligation  upon  parents 
to  set  their  children  up  in  business;  in  their  bringing  up  they  have  fulfilled 
all  their  duties:  Chaisemartin,  61. 

3  "Jostice,"  19,  49,  2  (p.  323);  infancy:  c/.  p.  104,  Dig.,  3,  2,  1;  "Na- 
varre," 24,  7.     Stohhe,  §  253;  Briinneck,  p.  49  (Sicily). 

^  Vows:  Pothier,  "Personnes,"  130.  Ayrault  writes  a  treatise  on  this 
occasion  dealing  with  the  paternal  power  addressed  "To  Rene  Ayrault,  His 
Son,  So-called  Jesuit,"  who  had  entered  this  order  contrary  to  his  father's 
wishes.  —  As  to  the  conflict  between  the  canon  law  and  civil  legislation,  c/. 
"L'Eglise,"  I.  Dig.  X,  3,  31,  8;  "Trente,"  25,  18;  Thomassin,  I,  1760. 
"Ord.,"  1560, 19;  1579,28;  March,  1768;  Jan.  17, 1779;  Denisar^,  see" Voeux." 
Ferriere  refuses  to  see  in  this  a  consequence  of  the  paternal  power  (see  "  Diet."). 
We  must  notice  that  in  order  to  take  vows  or  enter  the  army  the  child  is  freed 
from  the  paternal  power  at  an  earlier  age. 

^  Beaumanoir,  12,  45;  21,  20,  makes  no  mention  of  it;  "Bord.,  A.  C,"  78; 
"Et.  de  Saint  Louis,"  1, 140;  "Pari,  aux  Bourg.,"  1293  (Simonnet,  "R.  h.  Dr.,'' 
XIV,  529);  "T.  A.  C,  Bret.,"  209;  Desm.,  236,  248;  "Gr.  Gout.,"  2,  40  (p. 
370):  legacy  or  gift  not  based  on  a  consideration;  cf.  pp.  109,  263;  Boutillier, 
I,  103;  Vitry,  100;  "Auv.,"  "Bourb.,"  "Berry,"  "Reims,"  "Hainaut,"  cf. 
Dum6es,  "Dr.  Frangais  en  Flandre,"  1753,  7.  —  Cf.  "Jostice,"  VII,  6,  7;  XII, 
3,  1  (Roman  formula  of  customary  rules);  "L.  d.  Droiz,"  805,  756,  532,  etc. 
Action  for  insults  belonging  to  the  son:  "Toulouse."  "De  Minor.,"  2;  "Bour- 
bon," 169;  "Lille,"  XIII,  3.  As  to  the  other  offenses,  the  father  has  for  a 
long  time  had  a  right  to  damages:  Kraut,  I,  329,  362.  The  "Sachsenspiegel," 
I,  10,  shows  the  father  giving  a  sort  of  "pecuHum"  to  his  son:  Heusler,  II,  442. 

8  "Sal.  Gap.  Extravag.,"  8:  "res  uxoris"  or  marriage  portion:  until  the  sons 

190 


Topic  lO]  THE  PATERNAL  POWER  [§  163 

joint  ownership,  the  possessions  acquired  by  the  child,  in  what- 
ever manner  it  might  be  (gifts,  legacies,  personal  gains,  etc.)/ 
were  recognized  as  belonging  to  him  alone;  even  though  under 
the  paternal  power,  he  had  his  own  distinct  inheritance.^  The 
father  and  mother  had  the  administration  of  it  ^  because  of  their 
right  of  custody,  but  the  enjoyment  only  belonged  to  the  noble 
and  the  citizen  guardian,  and  even  then  not  without  restric- 
tions.'* This  enjoyment  thus  had  something  exceptional  about  it: 
the  Customary  law  did  not  give  the  legal  profits  to  the  father.^ 
On  the  other  hand,  the  paternal  power  in  countries  of  written  law 
was  of  some  value  to  the  father  (but  not  to  the  mother);  to  say 
nothing  of  the  ownership  of  possessions  acquired  by  the  son  "ex 
re  patris,"  ^  as  well  as  the  usufruct  of  the  other  possessions,^ 

who  are  "parvuli"  shall  have  attained  the  "setas  perfecta,"  it  is  the  father's 
place  to  ''judicare"  (not  to  sell  or  give).  This  leads  us  to  suppose  that  com- 
ing of  age  emancipates  the  child.  He  acts  in  his  own  name  and  does  not 
represent  his  father:  "Bord.,"  78.  Pollock  and  Maitland,  II,  437:  the  father 
is  "tenant  by  the  law  of  England";  but  in  actions  relating  to  these  lands  his 
son  must  be  made  a  party.  There  are  even  cases  in  which  the  custody  be- 
longs to  the  lord:  Bracton,  f.  138,  43,  253;  Heusler,  II,  443;  and  the  usufruct 
to  the  father:  "Sachsensp.,"  I,  11;  post,  "Guardianship." 

1  Excepting  what  he  acquires  "ex  re  patris,"  everything  he  earns  through 
his  labors  while  in  the  house  of  his  father:  "Metz,"  I,  4,  12;  G.  Coquille, 
"Quest.,"  65;  Desmares,  36,  248.  Gifts  to  the  son  are  regarded  as  being 
made  to  the  father  and  mother,  unless  there  is  a  special  clause  setting  them 
aside  for  the  son. 

2  "F.  de  Beam,"  277;  "de  Morlaas,"  179;  BoicL,  I,  75;  "L.  d.  Droiz,"  142, 
556,  756;  "T.  A.  C.,  Bret.,"  209;  "Gr.  Gout,  de  Fr.,"  II,  30;  "Poitou,"  321; 
"Bourb.,"  174;  "Hainaut,"  32,  9.  The  Romanists  draw  a  distinction  between 
Italy  and  Germany:  the  "peculium"  acquired  regularly  (of  which  the  father 
has  the  administration  and  the  enjoyment)  and  the  one  acquired  irregularly 
(of  which  he  only  has  the  administration),  the  "peculium"  acquired  by  the 
inheritance  in  the  direct  line,  the  "castrans peculium"  and  the  "quasi  castrans 
pecuhum"  (including  among  the  "milites,"  clericals;  "milites  Dei,"  advo- 
cates and  doctors;  "milites  inermes";  "militiae  litterataj ") :  Fitting,  op.  cit., 
p.  476;  Stobbe,  §  254;  "Siete  Part.,"  IV,  17,  5  et  seq. 

3  "T.  A.  C.,  Bret.,"  77,  204.  We  can  then  say  that  the  son  is  represented 
by  his  father:  "Jostice,"  59;  "L.  d.  Droiz,"  224,  589. 

*  Post,  "Guardianship,"  "Lease."  However,  Imbert,  "Enchirid.,"  p.  162, 
considers  this  usufruct  as  being  frequent:  Chassaneus,  870;  "Berry,"  I,  22 
(ceases  at  the  age  of  18). 

^  This  fact  is  correlated  to  the  setting  up  of  a  majority  which  emancipates 
and  is  to  be  accounted  for  in  the  same  way:  cf.  Glasson,  VII,  181.  The 
usufruct  exists  in  certain  of  the  Customs  as  an  exception:  "L.  d.  Droiz,"  142; 
"Bord.,"  83,  etc.  Cf.  "Bourges,  A.  C.,"  I,  5,  etc.  As  to  the  usufruct  of 
property  jointly  acquired  by  the  community:  post,  "System  of  Possessions 
between  Spouses."  Final  English  law:  the  father  only  has  a  right  to  the 
product  of  the  work  of  the  children  who  live  with  him  and  whom  he  supports; 
he  is  an  administrator  who  is  held  responsible  for  their  other  possessions: 
post,  "Guardianship";  Ferrihre,  see  "Administrateur";  Pothier,  no.  82; 
Duranlon,  "R.h.Dr.,"  IV,  147;  Stobbe,  §  255,  2. 

*  "Navarre,"  24,  1.     It  is  the  same,  moreover,  in  the  customary  law. 

^  Details  as  to  this  usufruct  in  Serres,  "Inst.,"  2,  4,  9;  Henrys,  op.  and 
loc.  cit,  etc.    It  affects  the  possessions  of  children  who  are  not  emancipated. 

191 


§  163]  THE  F.UIILY  [Chap.  I 

excepting  profits  realized  in  the  employment  of  warfare,  the 
magistracy  or  the  bar,  and  the  Church  ("peculium  castrans"  or 
"quasi  castrans  ") ;  with  regard  to  these,  the  son  was  looked  upon 
as  having  the  same  rights  as  his  father.^ 

§  164.  Capacity  of  the  Child  under  Authority.  —  The  absolute 
incapacity  of  former  times,  the  consequence  of  the  unity  of  per- 
son and  inheritance,  had  difficulty  in  disappearing;  it  is  still  to  be 
found  in  certain  sources  of  law  in  the  thirteenth  century.^  As  a 
general  thing,  however,  it  no  longer  exists.  There  has  had  to  be  a 
departure  from  the  old  principles,  first  of  all  in  certain  practical 
cases  which  are  analogous  to  those  concerns  of  the  household  in 
relation  to  which  it  was  found  necessary  to  recognize  the  capacity 
of  the  married  woman.  The  German  texts  show  the  child  validly 
paying  for  his  share  of  the  food,  gambling,  "quantum  secum  in 
parata  pecunia  habuerit,"  that  which  "sub  suo  cingulo  contine- 
tur,"  pledging  his  clothing,  even  to  his  shirt,  obligating  himself  to 
the  extent  of  small  sums.  According  to  the  Assizes  of  Jerusalem, 
the  father  and  mother  of  the  scholar  are  held  liable  to  pay  "that 
which  he  has  borrowed  for  his  enjoyment,  or  to  pay  his  master."  ' 
More  than  this,  it  is  even  admitted  that  in  the  household  forum 
all  the  obligations  of  the  son  of  good  family  are  valid.^  This 
limited  capacity  must  have  increased  by  reason  of  the  rights  of 
ownership  which  the  son  of  good  family  was  recognized  as  having, 
and  by  the  spreading  of  the  doctrine  of  emancipation.  At  the  end 
of  the  thirteenth  century  the  idea  that  the  child  under  authority 
enjoys  full  civil  capacity  from  the  time  he  comes  of  age  has  been 
pretty  nearly  attained.^    But  his  condition  scarcely  changes  be- 

does  not  belong  to  the  mother,  and  does  not  cease  as  a  consequence  of  a  second 
marriage  (c/.  "Cod.  Theod.,"  8,  18,  3;  and  "Cod.  _Just.,"_  6,  60,  4;_  "Wis.," 
4,  2,  13).  The  father  may  allow  the  children  to  enjoy  their  possessions,  but 
this  renunciation  cannot  be  pleaded  against  creditors:  Stobbe,  §  255,  3; 
Salvioli,  §  200.  Has  the  legal  enjoyment  referred  to  in  the  Civil  Code,  384, 
its  origin  in  this  institution  of  countries  of  written  law  or  in  the  customary 
rules?     Cf.  post,  "Custody." 

1  Fitting,  "Pecuhum  Castrense,"  1871. 

2_"Berner  Handf.,"  1218,  49.  The  father  is  not  responsible  for  the  debts 
of  his  son;  the  son  himself  is  not  held  liable  to  pay  them  out  of  the  possessions 
which  he  inherits  after  the  death  of  his  parents.  The  father  has  the  right  to 
reclaim  anything  which  the  son  has  disposed  of  for  the  benefit  of  third  parties: 
Stobbe,  §  256;  "T.  A.  C,  Bret.,"  84,  175;  "De  Usib.  Andeg.,"  14:  the  son 
borrows  without  the  permission  of  his  parents;  the  latter  are  not  held  after 
his  death  if  he  has  no  property:  Beaumanoir,  15,  31.  Cf.  "L.  Pap.  Roth.," 
170;  "Liut.,"  58  (acts  of  the  son  which  cannot  be  pleaded  against  the  father). 

3  "Ass.  de  J^rus.,"  "C.  des  B.,"  218;  "Siete  Part.,"  IV,  17,  12. 

*  Beaumanoir,  12,  35;  cf.  post,  "Promissory  Oath." 

5  Beaumanoir,  ibid.:  the  son  who  has  attained  majority  can  cause  the 
cancelling  of  any  act  which  is  injurious  to  him,  but  only,  it  seems,  by  pre- 

192 


Topic  lO]  THE  PATERNAL  POWER  [  §164 

cause  of  this,  so  long  as  he  has  no  personal  possessions  or  those 
that  he  has  are  sub'ject  to  the  enjoyment  of  his  father;  the  au- 
thorization of  the  latter  alone  gives  practical  value  to  his  en- 
joyment; for,  at  the  same  time  as  he  gives  his  authority,  the 
father  binds  himself,  contrary  to  the  Roman  rules.^  When  he  is 
a  minor  he  has  a  right  to  the  privilege  of  restitution,  even  if  he 
has  been  authorized;  he  is  almost  in  the  same  situation  as  that  of 
the  minor  under  guardianship.^  Although  generally  accepted,^ 
the  capacity  of  the  son  who  has  come  of  age  did  not  cease  to  be 
discussed  as  far  as  the  right  of  making  a  will  was  concerned ;  ^ 
upon  this  point  the  conflict  between  the  old  and  the  new  law  had 
not  been  settled,  perhaps  because  of  the  disfavor  with  which  the 
will  was  looked  upon.^  In  countries  of  written  law  the  son  of 
good  family  cannot  make  a  will  (excepting  of  his  possessions  which 
appertain  to  the  camp),  but  he  is  free  to  dispose  by  gift,  "mortis 
causa,"  with  the  consent  of  his  father.  We  have  already  seen 
that  he  was  capable  of  binding  himself,  of  becoming  surety,  for 
example,  but  not  of  borrowing  money,  owing  to  the  application 
of  the  Macedonian  Decree  of  the  Senate.^     The  responsibility  of 

tending  that  it  is  because  of  reverential  fear:  "Jostice,"  pp.  80,  98  (the  son 
brings  an  action  against  his  father;  there  is  no  more  community  of  persons). 
On  Roman  influence  in  Germany:  Stobbe,  loc.  cit. 

1  "Bord.,"  79,  80,  115:  presence  of  the  father;  the  written  authorization 
is  not  sufficient.  Heusler,  II,  448.  Cf.  on  responsibility  of  the  father,  "  Ber- 
gerac,"  130;  "Limoges,']  82;  "Bourb.,"  168;  "Berry,"  I,  10,  11.  In  the 
Register  of  the  ecclesiastical  judge  of  Cerisy  we  find  numerous  examples  of  a 
fine  computed  "cum  auctoritate  patris,"  no.  7,  Basset,  2,  4,  10,  4. 

2  Post,  "GuarcUanship."     Cf.  Enghsh  law:  Pollock  and  Maiiland,  II,  443. 

3  Thus  the  son  who  has  attained  majority  may  appear  in  court:  cj.  Pollock 
and  Maitland,  II,  438.  On  the  "Demurrer  of  the  Parol,"  cf.  post,  "Guar- 
dianship." —  "T.  A.  C,  Bret."  67.  The  son  who  has  attained  majority,  but 
who  is  under  the  power  of  his  father,  can  only  be  appointed  a  custodian  with 
the  authorization  of  his  father:  cf.  "Jostice,"  59;  "L.  d.  Droiz,"  224,  589. 

^  Great  confusion  in  the  Customs.  Frequently  the  will  is  only  valid  with 
the  consent  of  the  father:  "T.  A.  C.,  Bret.,"  220;  "St.-Omer,"  27;  "Bour- 
gogne,"  etc.  In  Flanders  the  son  cannot  make  a  will:  "Gand,"  21;  "Cour- 
tray,"  13,  13.  He  can  make  a  will  of  property  acquired  by  his  own  industry: 
"Hainaut,"  32,  1;  "Berry,"  18;  "Lorraine,"  IV,  5.  Capacity  without  re- 
striction: "Poitou,"  276;  "Angoumois,"  119;  "Labourt,"  11.  The  age  at 
which  one  can  make  a  will  varies  with^the  Customs  (20,  18,  16  years,  etc.). 
In  Normandy,  414,  the  amount  which  can  be  disposed  of  varies  according  to 
age:  Civil  Code,  904;  Guyot,  see  "Testament." 

^  A  will  authorized  by  the  father  is  valid  if  there  is  added  to  it  the  clause 
that  it  shall  be  vahd  at  least  as  a  gift  "mortis  causa"  (Bordeaux  contra)  if 
it  is  for  a  pious  cause  that  it  is  made;  and,  finally,  even  without  this  consent, 
when  he  divides  his  possessions  among  his  children:  Serrcs,  11,  12. 

^  The  Macedonian  Decree  of  the  Senate  is  applied  throughout  the  South 
(since  when?  "  L.  Rom.  Wis.,"  Paul,  2,  10) :  Bretonnier,  see  "  Fils  de  Famille" ; 
Argou,  3,  31;  Beautemps-BeauprS,  "C.  d'Anjou,"  II,  n.  576;  "Limoges,"  82; 
"Siete  Part.,"  5,  4.  On  the  contrary,  in  countries  of  Customs  the  decree  of 
the  senate  is  not  received:  Ferrihre,  "Beaune,"  p.  541;  Papon,  12,  4;  Merlin, 

193 


§  164]  THE  FAMILY  [Chap.  I 

the  father  caused  by  the  offenses  of  the  son  is  still  found  in  the 
thirteenth  century,  because  it  is  correlative  to  the  right  of  correc- 
tion, and  because  the  son  has  no  personal  possessions;  ^  but  in 
consequence  of  this  it  is  no  longer  justified.  In  spite  of  the  con- 
troversy and  the  di^inctions  which  are  shown  by  the  tenacity  of 
the  old  rules,  the  principle  prevails,  in  countries  of  written  law  as 
well  as  in  countries  of  Customs,  that  "for  another's  offense  one 
is  not  held  liable"  (save  as  to  civil  liability) .^ 

§  165.  Right  of  the  Mother.^  —  If  we  are  to  believe  Beau- 
manoir,  21,  20,  the  paternal  power  belonged  in  common  to  the 
father  and  to  the  mother:  "father  and  mother  have  their  children 
in  their  custody  or  under  their  guardianship."  ^  During  the  life- 
time of  the  father  did  the  mother  then  have  some  part  in  the  ex- 
ercise of  this  right?  Surely  very  little,  because  she  was  herself 
found  to  be  under  the  power  of  the  husband.  The  education  of 
the  children  was  incumbent  upon  her,^  but  under  the  supervision 
of  the  husband.^    The  Edict  of  1556  shows  that  her  consent  was 

see  "Mac^donien";  Bouhier,  16,  2.  German  law:  Stobbe,  256,  II,  3.  Italy: 
many  statutes  only  allow  him  to  bind  himself  with  the  consent  of  his  father: 
Fertile,  III,  379.  As  to  the  renunciation  of  the  Macedonian  Decree  of  the 
Senate,  cj.  Meynial,  "N.  R.  H.,"  1901,  262  (bibl);  the  "Glose"  (Dig.,  14,  6, 
11;  "L,  Feud.,"  2,  54,  3),  annuls  the  renunciation,  even  made  under  oath 
(Dumoulin,  on  "Cod."  4,  28),  for  the  Decree  of  the  Senate  was  enacted  out 
of  hatred  for  creditors,  and  not  in  favor  of  the  sons  of  families;  certain  of  the 
canonists  are  of  a  contrary  opinion  {Imola,  etc.).  Cj.  Bartole,  56  "Pr.," 
"de  Fidej.,"  no.  10. 

1  Beaumanoir,  21,  20;  "Amiens,"  42  (1205);  "Pari,  aux  Bourg.,"  p.  106; 
Saint-Dizier,  16;  "  Jostice,"  p.  98;  Grimm,  see  "Weist.,"  503,  etc.;  "Schwaben- 
spiegel,"  II,  183;  "Bret.,  T.  A.  C,"  175;  "A.  C,"  615  {D' Argentre,  s.  611; 
Beautemps-Beaupre,  "Liger,"  513;  "Eu.,"  169.  Thus  the  father  had  to  pay 
the  fine  to  the  treasurer,  and  ci\dl  damages  to  the  party  injured;  he  was  only 
exempt  from  the  corporal  punishment:  "Gr.  Gout,  de  Fr.,"  p.  385;  Fertile, 
III,  378;  Kraut,  I,  335.     "Agen,"  22;  Laroque-Timbaud,  14,  etc. 

2  Boutillier,  II,  29;  Dig.  X,  5,  23,  2  (Alexander  III,  1159-1181);  the 
father  is  not  responsible:  "Berry,"  I,  12;  "Bourbon,"  169;  "Gand,"  21, 
9,  etc.  Jurisprudence  incUnes  towards  this  solution  where  the  Customs  are 
silent:  "Beaune,"  p.  544.  This  is  also  the  solution  resorted  to  in  countries 
of  written  law,  —  the  practice  of  giving  up  the  thing  causing  the  injury  to  the 
person  injured  having  disappeared.  Swiss  Customs:  "Stat,  de  Rome,"  II, 
80;  Fothier,  "ObUg."  454;  Brillon,  see  "Pere";  Boucheul,  ibid. 

3  Mertian  de  Milller,  op.  cit.  (p.  1080);  Du  Flessis,  p.  168;  Viollet,  p.  508. 
As  to  the  custody  or  guardianship  of  the  mother  see  Catellan,  4,  8. 

*  This  is  an  expression  wliich  is  more  correct  in  fact  than  in  law.  It  is 
to  be  accounted  for  by  the  participation  of  the  mother  in  the  education  of 
children,  by  her  role  of  assistant  or  of  substitute  for  her  husband:  Bo^daric,  I, 
100;  "Chalons,"  2;  "Vitry,"  70,  100,  etc.;  Mulhaus,  "Stat."  (1692),  IV,  31, 1; 
Loysel,  177;  Fothier,  "Fers.,"  I,  Q,  2;  Fleury, 1,225;  cf.  Salis,  152;  Du  Flessis, 
550;  Schulte,  §  172  (authorization  by  the  mother);  Heusler,  II,  433;  "Stat. 
de  Rome,"  1580,  II,  78. 

^  Right  of  correcting  the  child  of  tender  age:  Dig.,  43,  30,  3,  5;  "Wis.,"  4, 
5,  1;  cf.  English  law,  Lehr,  p.  118:  the  paternal  power  is  reserved  to  the  father. 

^  If  he  wishes  to  give  them  an  immoral  education,  the  mother  has  a  right 

194 


Topic  lO]  THE   PATERNAL   POWER  [§  166 

required  for  the  marriage  of  the  children;  but  in  case  of  disagree- 
ment between  her  and  the  father  the  wishes  of  the  father  prevailed. 
At  the  death  of  the  father/  or  if  he  is  absent  or  ill,^  the  Customary 
law  gives  the  mother  the  custody,  which  is  very  much  like  guar- 
dianship, with  fewer  rights  than  remain  to  the  father  when  he  sur- 
vives; for  the  latter  conserves,  on  principle,  all  the  attributes  of 
the  paternal  power.  If  there  is  a  judicial  separation,  the  courts 
decide  to  which  of  the  two  spouses  the  authority  ought  to  belong.^ 
In  countries  of  written  law  the  mother  legally  occupies  a  little 
less  important  position,  because  of  the  principle  that  the  "patria 
potestas"  could  not  be  attributed  to  her;  thus  it  is  that  she  does 
not  have  the  legal  profits  of  acquired  possessions.  But  custom 
gives  her  a  little  of  that  which  the  law  refuses  her,^  and,  according 
to  the  law  itself,  the  minor  child  passes  under  the  legal  guardian- 
ship of  its  mother  (or  of  its  grandmother)  at  the  death  of  its 
father.  Thus,  contrary  to  the  old  law,  the  mother  becomes  in  all 
matters  the  assistant  of  the  father  in  his  role  of  head  of  the  family. 
§  166.  Emancipation.^  —  In  countries  of  written  law,  emancipa- 
tion from  the  paternal  power  can  only  result,  on  principle,  from 
an  expressed  emancipation:  a  declaration  before  the  judge  or  a 
notarial  deed  (at  least  within  the  jurisdiction  of  the  Parliament  of 
Toulouse).^    Alongside  of  this  Roman  institution  there  took  place 

to  go  into  court  in  order  to  prevent  it.  —  In  case  of  a  judicial  separation: 
"Ass.  de  Jerus.,"  "C.  des  B.,"  177;  Boutaric,  II,  8;  Bernard,  p.  293,  cites 
the  celebrated  action  of  Catherine  Arnaud  against  Isaac  Le  Alaistre,  her 
husband,  who  had  embraced  Protestantism  and  demanded  his  children  from 
her. 

1  Beaumanoir,  21,  9.  This  custody  ceases  by  means  of  a  judicial  decree 
made  at  the  request  of  the  parents:  Cases,  Procedure,  ibid.,  21,  17;  "Et.  de 
St.  Louis,"  ed.  Viollet,  I,  154;  III,  137.  Death  of  the  mother:  Montargis, 
7,3. 

-  Pothier,"FeTS.,"n.l34:;  Stobbe,  ^252. 

'  Denisart,  see  "Education." 

■»  De  Ribbe,  op.  cit.,  II,  135;  cf.  "Petrus,"  I,  3. 

*  "Encicl.  Giur.  Ital.,"  see  Lattes,  p.  179;  "Acad.  Leg.  Toulouse,"  I,  52; 
"R.  h.  Dr.,"  14,  529;  Stobbe,  "Beitr.,"  1865;  Neron,  see  Table;  Isambert,  id.) 
Guyot,  id. 

^  Guilbert,  "La  Famille  Limous.,"  p.  23.  At  Limoges,  June  12,  1792. 
Pierre  Chapoulaud,  parish  priest  of  Bazoches,  in  Gatinais,  is  emancipated 
at  the  age  of  47  years  in  the  presence  of  a  judge.  He  kneels  down  and,  clasp- 
ing his  hands  together,  prays  his  father  to  emancipate  him.  The  latter 
declares  that  he  gives  his  consent  and  raises  him  up:  Viollet,  op.  cit.;  De 
Ribbe,  "Les  Families  ct  la  Soc,"  I,  245;  Fertile,  III,  384:  The  father  who 
abuses  his  power  in  order  to  administer  the  property  badly  can  be  forced  to 
emancipate  his  son;  emancipation  is  only  allowed  at  a  certain  age,  —  20 
years  at  Milan,  18  at  Novare,  etc.;  a  custom  of  assigning  the  property  to  the 
emancipated  son,  Milan,  1216,  17;  publicity  given  to  emancipation,  "Siete 
Part.,"  IV,  18.  Incest  causes  the  loss  of  the  paternal  power.  A  father  who 
emancipates  his  son  keeps  one-half  of  the  usufruct  of  the  acquired  property; 
Du  Cange,  see  "  Emancipatio  " ;  Ragueau,  id. 

195 


§  166]  THE   FAMILY  [Chap.  I 

in  many  localities  an  implied  emancijjation  which  resulted  from 
marriage,^  from  living  apart  for  ten  years,  from  being  elevated  to 
the  highest  dignities  of  the  gown  or  the  sword,  or  to  a  bishopric, 
and  from  the  civil  death  of  the  father.^  The  expressed  emanci- 
pation differed  from  the  other  in  that  it  was  voluntary  on  the  part 
of  the  child,  as  well  as  on  the  part  of  the  father;  the  son  could  not 
be  emancipated  in  spite  of  himself,^  and,  on  the  other  hand,  he 
had  no  means  by  which  to  compel  his  father  to  emancipate  him 
(with  some  exceptions).'*  From  the  Roman  laws  the  Customary 
laws  borrowed  in  the  fourteenth  century  emancipation  expressed 
before  public  authority,  such  as  Boutillier  ^  has,  for  example,  de- 
scribed, and  emancipation  by  letters  from  the  sovereign. 

But  in  the  old  days  the  only  kind  of  emancipation  which  was 
known  was  the  depriving  of  their  board,  the  "  f oris  f amiliatio  "  of 
children  who  were  of  age;  ®  it  took  place  without  any  participa- 

^  Provinces  of  written  law  within  the  jurisdiction  of  the  Parliament  of 
Paris:  Argo2i,  I,  25;  Henrys,  II,  715. 

2  "Montpellier,"  53;  "Navarre,"  24,  8  ("Coseigneurie");  Boutaric, 
"Inst.,"  1,  12,  6;  Dunod,  "Prescr.,"  185;  Henrys,  "CEuvres,"  II,  722;  III, 
452;  Bouhier,  I,  361;  Julien,  "Elem.,"  I,  8.  In  Provence,  "habilitation," 
giving  only  the  right  of  administration:  "Toulouse,"  3,  4  (marriage  with 
gift  or  marriage  portion).  —  Up  to  the  age  of  25  years  the  child  who  has  been 
emancipated  is  aided  by  a  curator  in  the  alienation  of  his  immovables.  — 
Italy:  emancipation  results  from  entering  into  religious  orders,  from  enter- 
ing the  priesthood  or  the  military  profession,  going  into  business,  or  being 
invested  with  a  fief  or  a  public  office:  Fertile,  III,  382;  "Siete  Part.,"  IV, 
18.     As  to  holding  office  c/.  "Nov.,"  81;  "Cod.  Just.,"  12,  3,  5;  8,  46,  1. 

3  Henrys,  t.  II,  q.  127,  n.  36;  "Siete  Part.,"  IV,  18,  17.  C/.  Roman  law, 
in  which  emancipation  depends  only  upon  the  will  of  the  father. 

^  "Nov.,"  89,  c.  11;  Boer.,  "Dec."  Power  of  the  courts  to  make  an  esti- 
mate: Julien,  "Stat,  de  Provence,"  I,  p.  202.  Forfeiture  by  the  father  who 
incurs  penalties:  "Siete  Part.,"  IV,  18,  18  (cruelty  of  the  father  to  his  sons, 
prostitution  of  the  daughters,  etc.);  18,  19  (revocation  of  the  emancipation 
because  of  ingratitude):  Hostiensis,  p.  320. 

^  I,  100.  Cf.  Beawnanoir,  21,  21:  intervention  of  the  law  or  of  the  rela- 
tives, when  the  surviving  spouse  acquires  influence  over  his  children,  so  as  to 
prevent  him  from  stripping  them.  Custom  of  joining  a  gift  to  the  emanci- 
pation: Simonnet,  "R.  h.  Dr.,"  533;  Salis.,  p.  181.  The  law  makes  sure  that 
there  is  no  fraud:  Beaumanoir,  21,  20.  It  was  all  the  more  necessary  be- 
cause the  consent  of  the  child  was  not  required  beforehand;  certain  Customs 
allowed  of  his  being  emancipated  in  his  absence:  "Orl.,"  185;  "Reims,"  6; 
"Sedan,"  5,  etc;  "T.  A.  C,  Bret.,"  79,  204.  —  A  judicial  emancipation  was 
attained  through  the  Customs,  which  was  not  affected  by  Roman  influence. 
Made  before  the  judge,  notary,  or  municipal  authorities  (aldermen  at  Lille, 
"Roisin,"  concerning  investiture;  mayor  at  Provins,  "B.  Ch.,"  1856,  p.  193), 
it  was  sometimes  looked  upon  as  the  act  of  the  parties,  sometimes  as  the  act 
of  the  judge;  sometimes  the  judge  limited  himself  to  registering  it  and  giv- 
ing it  authenticity,  sometimes  he  played  a  more  active  part,  —  he  emanci- 
pated the  child.  Salis,  p.  187  (Statutes  of  the  Chatelet,  1326-1396).  In 
Burgundy,  in  the  fourteenth  century,  the  "Summa"  of  Rolandinus  was  re- 
produced: Bouhier,  I,  491;  "Beaune,"  551. 

^  Ragueau,  see  "Pain,  Emancipez";  Loysel,  56;  Du  Cange,  see  "Foris 
Familiare";  Viollet,  "Et.  de  Saint  Louis,"  I,  130;  Heusler,  II,  438;  Salis,  op. 

196 


Topic  lO]  THE  PATERNAL  POWER  [§  166 

tion  on  the  part  of  the  judge/  and  only  by  reason  of  a  child's 

having  a  separate  estabhshment,  a  distinct  home,  to  the  father's 

knowledge:   "fire   and   place  cause  emancipation."  ^     A   simple 

change  of  residence  was  not  enough  to  effect  emancipation;  the 

student  who  goes  away  from  his  home  in  order  to  follow  the  course 

of  study  of  a  university  does  not  escape  from  the  paternal  power.^ 

The  assignment  to  the  "foris  familiatus"  of  a  portion  of  the 

family  fortune  is  not  indispensable,  although  it  is  frequent,  and  it 

constitutes  a  sort  of  compensation  for  the  loss  of  the  enjoyment  of 

the  possessions  of  the  parents;"*  in  fact,  the  young  man  whose 

parents  send  him  to  work  outside  of  the  paternal  house,  and  who 

owes  his  independence  to  his  work,  is  emancipated  in  the  same 

manner  as  the  one  who  receives  a  portion  of  the  possessions  of 

his  father.^    The  "foris  familiatio"  could  be  imposed  upon  the 

child  by  way  of  a  penalty,  or  because  his  parents  were  too  poor,  or 

because  they  wished  to  escape  from  responsibility  for  his  offenses  f 

but  it  could  also  happen  that  the  child  went  away  against  the  will 

of  his  father;  he  "deprived  himself  of  board."  ^ 

cit.  German  law;  "Absonderung,"  emancipation,  "per  separatam  oeco- 
nomiam,  emancipatio  saxonica"  (sixteenth  century,  as  opposed  to  Roman 
emancipation). 

1  Excepting  in  a  few  localities:  Ferriere,  see  "Pari,  aux  Bourg.,"  p.  164. 
Giving  of  a  piece  of  bread  and  disinheritance:  Simonnet,  loc.  cit. 

2  P>equent  disagreements  between  children  who  are  living  with  the  father 
and  mother  and  children  who  are  emancipated  by  the  father  and  mother,  or 
by  one  parent  if  the  other  is  dead:  "Amiens,"  42,  etc.  They  still  say  "enfant 
en  celle"  (meaning  a  child  living  with  its  father  and  mother,  under  their  power, 
and  having  community  of  property  with  them):  see  Ragueati,  Loysel,  101.  A 
few  Customs  require  that  the  separate  establishment  shall  have  been  in 
existence  a  year  and  a  day;  sometimes  jurisprudence  requires  ten  years :  "  Cod. 
Just.,"  8,  47,  1;  Du  Plessis,  op.  cit. 

3  "Ass.  de  Jerus.,"  "C.  d.  B.,"  215,  218;  "Pari,  aux  B.,"  p.  164;  Vann, 
"Arch.  L^g.  de  Reims,"  I,  1,  39.  The  very  early  law  could  not  have  ad- 
mitted of  the  emancipated  child  living  with  his  father,  as  yfas  done  later  on. 

*  Beaum.,  21,  20  (partition  without  fraud).  Certain  texts  give  the  child 
who  goes  away  with  the  consent  of  his  father  a  right  to  a  settlement :  Estaires, 
75  ("Mem.  Soc.  sc.  Lille,"  1855).  Without  such  a  settlement  living  inde- 
pendently would  not  have  been  possible:  Viollet,  221;  "Et.  de  Saint  Louis," 
1,119;  11,26;  Beaum.,  U,  13;  14,29;  21,4,20;  "Jost.,"  p.  236;  "Picardie," 
I,  9,  3;  Saint-Dizier,  236;  "B.  Ch.,"  1874,  p.  412.  The  son  or  the  daughter 
who  goes  away  against  the  wishes  of  the  parents  is  disinherited,  "ipso  facto": 
"Wis.,"  3,  2,  8;  "Narbonne,"  1232  (D.  Vaissette,  III,  208);  "Amiens,"  IX, 
2  (Marnier);  .52  (^4.  Thierry).     Post,  "Partition,"  "Refunding." 

6  Beaum.,  21,  20;  cf.,  however,  Clanville,  7,  3;  "Saint-Sever,"  8,  1,  8; 
"Reims,"  7;  "Sedan,"  6;  Loysel,  1, 1,  39;  "  Bergerac,"  130;  "Chartres,"  103;  if 
the  mother  dies  the  children  are  emancipated  "ipso  facto"  because  they 
are  considered  as  having  sufficient  means  to  live  on.  Heusler,  II,  438.  Accord- 
ing to  this  learned  man,  emancipation  is  due  less  to  a  separate  establishment 
than  to  the  receiving  of  a  portion  of  the  father's  possessions :  cf.  Grimm,  "  Weist," 
III,  104,  14;  the  lord  inherits  from  the  emancipated  child,  and  not  his  father. 

*  Beaum.,  loc.  cit. 

^  Controversy;  Labourt,  IX,  18;  Soule,  24,    22;  "Bardges,"    16;  "Bret., 

197 


§  1G7]  THE    FAMILY  [Cuaf.  I 

The  separate  start  in  life  results,  in  the  case  of  daughters,  from 
marriage;  they  are  also  emancipated  by  this  means  from  the  pa- 
ternal power,  which  emancipation  is  all  the  more  necessary  when 
they  change  their  family.^  As  for  the  sons,  marriage  does  not 
always  imply  the  establishing  of  a  separate  home;  emancipation 
therefore  is  not  a  necessary  consequence.  In  the  end,  however, 
the  rule  becomes  established  that:  "every  marriage  emancipates," 
whether  it  be  that  of  a  son  or  a  daughter.^  The  knighting  of  the 
son  had  the  same  effect  as  his  marriage.^ 

§  167.  Emancipating  Majority.  —  In  the  last  stage  of  legisla- 
tion, emancipation  results,  of  absolute  right,  simply  from  major- 
ity; which  is  not  difficult  to  understand,  for  the  latter  ordinarily 
coincides  with  the  separate  start  in  life  and  it  causes  the 
guardianship  to  cease.^  This  is  what  the  old  "Coutumier  de 
Champagne"  already  admits:  "three  things  take  from  a  man  the 
pot  of  his  father,  age,  marriage,  fire  and  place."  But  in  the  six- 
tenth  century  the  new  rule  had  not  yet  become  general,  as  is  seen 

T.  A.  C,"  204;  "Schwabenspiegel,"  I,  183,  159  (the  son  can  demand  to  be 
emancipated  after  he  is  20  years  old);  contra,  Du  Plessis,  p.  483;  cf.  Bout.,  1, 
100;  Viollet,  "Et.  de  Saint  Louis,"  I,  130,  170;  III,  300;  Pasqider,  "Inst.," 
p.  378;  "Schwabenspeigel,"  1,191;  "Sachsensp.,"  I,  11,  13;  Briinneck,  p.  63 
(Sicily),  "Bret.,  T.  A.  C.,"  204;  the  father  cannot  emancipate  his  son  contrary 
to  the  wishes  of  the  latter;  the  son  who  has  attained  majority  can  demand 
that  he  be  emancipated:  "Bourg.,"  6,3;  "Angoum.,"  120;  "Saintonge,"  2; 
"Reims,"  7;  "Limoges,"  50;  the  son  cannot  leave  his  father  without  being 
authorized  to  do  so  (cf.  Roman  "  patria  pot.");  Salis,  op.  cit. 

1  Loysel,  122;  Chaisemartin,  69;  Masuer,  14,  17.  (Contra,  Capit.,  819); 
D'Argentre,  on  "Bret.,"  472;  "Nivern.,"  23,  1;  cf.  however  J.  Faure,  "Inst,  de 
Sc.  Tert.,"  3;  the  power  of  the  husband  does  not  exclude  the  paternal  power: 
"Montpellier,"  54;  "L.  d.  Droiz,"  643,  526;  "Anjou,"  1411,  Art.  350;  1463, 
Art.  400;  Lapeyrere,  on  "Bord.":  necessity  of  an  emancipation  at  law  in  order 
to  be  able  to  make  a  will;  "Bord.,  A.  C,"  62:  in  1539,  opinion  that  the  married 
daughter  can  make  q,  will  unfavorable  to  her  father. 

2  "Jostice,"  10,  23,  3:  "  Does  marriage  extinguish  a  guardianship?  Neither 
of  a  man  nor  a  woman,  in  the  North."  Dumoulin  does  not  admit  it:  on 
" Bourb.,"  166  (cf.  on  "  Blois,"  1).  Children  who  are  married  are  emancipated 
"quando  datur  eis  habitatio  seorsim,  secus  si  et  quandiu  retinentur  in  domo 
paterna":  La  Salle  de  Lille,  1567,  13,  1;  Chimay,  6,  1;  Beautemps-Beaupre, 
"F.,"  1197  ("Anjou");  "Angoum.,"  120;  "Poitou,"  317,  318;  "T.A.C., 
Bret.,"  81,  204;  Boutanc,  I,  100;  Chaisemartin,  69;  cf.  "Jost.,"  1,  10,  8  (Dig., 
7,  7,  36);  "Gr.  Cout.  de  Fr.,"  II,  29;  Desmares,  236;  Varin,  op.  cit.,  487,  3; 
Mantier,  "Amiens," p.  138;  Brunneck,p.Q2;  "Montp.,"58;  "F, de  Cuenca," 
14,  10  ("Wis.,"  4,  2,  13;  "Form.,  Wis.,"  34). 

3  "Et.  de  Saint  Louis,"  I,  21  (right  to  a  third  of  the  father's  land).  "Ord. 
de  Jean,"  II,  5  (Brittany);  "L.  d.  Droiz,"  422. 

*  England:  from  the  thirteenth  century  age  emancipates:  Bracton,  "¥.," 
6.  It  is  just  the  opposite  in  France:  Beaumanoir,  21,  20;  cf.  12,  35;  "Ord.," 
II,  63;  III,  24.  Acts  of  emancipation  in  1396  (Salis,  p.  170);  "De.  Us. 
Andegav,"  14;  "Reims,"  6,  7;  Bout.,  I,  100;  Simonnet,  "R.  h.  Dr.,"  p.  189. 
Case  in  which  the  son  has  personal  belongings  of  his  own;  when  he  comes  of 
age  he  naturally  has  the  administration  of  them. 

198 


Topic  lO]  THE   PATERNAL  POWER  [§  1G8 

from  a  passage  from  Loysel,  177.^  The  man  emancipated  by 
reason  of  age  becomes  invested  with  full  capacity;  he  becomes 
head  of  the  house;  ^  in  other  cases  his  capacity  is  limited,  at  least 
in  the  sixteenth  century,  as  to  the  alienation  of  immovables. 

§  168.  Revolutionary  Law,^  drawing  its  inspiration  from  the 
philosophical  conceptions  of  the  eighteenth  century,^  made  more 
progress  in  the  direction  which  the  old  jurisprudence  had  taken;  it 
restrained  the  paternal  power,  a  sort  of  domestic  royalty,  an  image 
as  it  seemed  of  monarchic  despotism,  and  was  not  far  from  re- 
garding the  father  simply  as  a  delegate  of  the  State.^  Unifying 
legislation,  the  Law  of  August  28,  1792,  abolished  the  "  patria  po- 
testas"  over  those  who  had  come  of  age,  which  was  still  in  force 
in  the  countries  of  written  law.^  The  consent  of  the  parents  to  the 
marriage  of  their  children  was  not  required  excepting  until  the  age 
of  twenty-one  years.^  Disinheritance  disappeared,^  and  the  por- 
tion which  could  be  disposed  of  having  been  reduced  to  very 
little,  the  father  of  the  family  found  himself  deprived  of  all  means 
of  controlling  his  children  by  disposing  of  his  possessions.  Finally, 
the  right  of  correction  was  made  subordinate  in  its  most  serious 
attribute  to  the  approval  of  a  family  tribunal  ^  composed  of  six 

^  Customs  which  always  require  a  separate  establishment  or  express  eman- 
cipation or  a  request  for  it  at  law:  "Bret.,"  528;  "Poitou,"  312;  "Bourg.," 
6,  5,  7;  "Hainaut,"  110;  "Lille,"  4,  2,  etc.  In  Flanders  becoming  a  priest 
emancipates:  Deghewiet,  p.  65;  Kraut,  II,  590.  Italy:  emancipation  at  the  age 
of  18  or  20,  provided  it  is  made  public:  Salvioli,  p.  360;  Briinneck,  p.  62. 

2  "  Bergerac,"  82:  he  preserves  the  right  of  correction  over  his  emancipated 
children.  Contra,  general  Customary  law  according  to  which  only  the  obli- 
gation to  furnish  nourishment  remains:  Ferriere,  see  "Em.";  Loysel,  59. 
Custom  often  allowed  the  father  to  keep  authority  over  the  domestic  hearth: 
cf.  Chateaubriand,  "Mem.  d'Outre-Tombe." 

'  Sagnac,  "La  Lcgisl.  Civile  de  la  Revol.  Fr.,"  p.  367;  Du  Plessis,  p.  571. 
Cf.  N ougarede,  "Essai  s.  la  Puiss.  Pat.";  Chr.  de  Poly.,  "Puiss.  Pat.,"  1820; 
Chardon,  "Traitc  des  Trois  Puissances." 

*  As  to  the  customs  of  the  eighteenth  century,  cf.  Taine,  "  Anc.  R6g.,"  174. 
It  is  a  general  opinion  among  the  philosophers  that  children  are  bound  to  the 
father  only  so  long  as  they  need  his  support.  When  this  is  no  longer  the  case 
it  is  not  for  their  parents  to  give  them  orders:  cf.  "Encyclopedic,"  "Rous- 
seau," "Locke,"  "Kant,"  etc. 

*  In  1793  Robespierre  suggested  taking  children  away  from  their  parents 
when  they  were  7  or  8  years  old,  in  order  to  bring  them  all  up  together  and 
thus  prepare  champions  of  the  new  ideas:  "Doc."  29  Frim.,  year  II  (first-class 
schools,  free  of  charge,  attendance  at  which  was  compulsory). 

^  Lamoignon  had  already  asked  for  this:  "Arr.,"  I,  7. 

^  A  family  council,  consisting  of  two  relatives  who  were  heirs,  two  others 
who  were  not  heirs,  and  the  public  officer,  should  be  consulted  by  the  child 
who  has  lost  his  parents:  Dec,  Sept.  7,  1793. 

*  Declaration  of  9  Fruct.,  year  II  (23  q.);  Duvergier,  VII,  318. 

^  A  singular  ana(;hronism:  family  solidarity  no  longer  existed,  so  to  speak. 
Many  modern  legislative  enactments  which  are  more  practical  have  jirovided 
powers  superior  to  those  of  the  parents  that  are  charged  with  aiding  the  latter 

199 


§  168]  THE    FAMILY  [Chap.  I 

or  eight  relatives  (and  if  these  were  lacking,  of  friends).^  The 
Law  of  August  16-24,  1790,  which  established  it,  and  which  Mira- 
beau  applied,  limited  to  one  year  the  duration  of  imprisonment 
pronounced  by  these  tribunals  against  minors  at  the  request  of 
their  fathers;  again,  the  president  of  the  district  tribunal  had  the 
power  to  refuse  to  ratify  this  penalty  after  having  heard  the  com- 
missioner of  the  king.  The  exercise  of  the  paternal  power  was 
confided,  as  it  was  already  in  Customary  law,  no  longer  to  the 
father  alone,^  but  to  the  father  and  the  mother,  that  is  to  say,  to  the 
father  first  of  all,  and,  in  default,  then  to  the  mother,  but  not  to 
both  at  the  same  time,  which  is  impractical.^ 

Finally,  the  individualistic  tendencies  triumphed  with  the  Revo- 
lutionary law.  The  paternal  power,  as  well  as  the  authority  of 
the  husband,  meets  with  serious  checks;  the  domestic  magistracy 
of  the  father  of  the  family  is  no  longer  exercised  within  the  narrow 
domain  to  which  it  is  confined,  excepting  under  the  supervision  of 
public  authority.  The  State,  as  we  have  said,  endeavors  to  con- 
stitute itself  the  general  father  of  the  family.  It  would  be  more 
correct  to  say  that  it  had  already  attained  about  half  of  this  power, 
and  that  it  succeeded  in  attaining  all  of  it.  Perhaps  the  last  stage 
of  an  evolution  which  had  been  pending  for  long  centuries  was 
arrived  at  too  suddenly.  From  the  year  VIII,  "the  restoration 
to  the  paternal  authority  of  the  lawful  dominion  which  it  should 
never  have  lost,"  is  contemplated.'*  The  Civil  Code  realized  this 
project  so  well  that  in  the  existing  law,  and  especially  in  the 
Customs,  which  are  the  longest  to  retain  the  imprint  of  the  past, 
the  rights  of  the  father,  even  over  the  children  who  have  attained 
their  majority,  have  not  entirely  disappeared  (for  example,  mat- 
rimonial coming  of  age).^    It  is  otherwise  with  the  Anglo-Saxons, 

in  carrjdng  out  the  most  important  acts :  thus  the  paternal  power  becomes 
still  more  like  guardianship. 

1  Dec,  Aug.  16-24,  1790,  10-15.  Duvergier,  I,  372.  This  tribunal  or 
family  council  already  existed  in  the  old  law,  c/.,  for  example,  Declaration 
of  Feb.,  1743,  Art.  12.  See  also  Merlin,  "R6p.,"  "Arbitrage"  (Statutes  of 
Provence  of  1469  and  1491);  Ordinance  of  Aug.,  1560;  of  Moulins,  83,  Jan., 
1629,  152;  Guichard,  "Tribunal  de  Famille." 

2  The  Decree  of  Sept.  20,  1792,  only  mentions  the  father  with  regard  to 
the  giving  of  consent  to  marriage. 

3  C/.,  however.  Civil  Code:  "Adoption." 

*  The  Jacqueminot  Project,  Fenet,  I,  331.  C/.  Discussion  of  the  Civil 
Code. 

^  Le  Play's  School  demands  the  restoration  of  the  paternal  power,  and 
thinks  that  the  best  means  of  rebuilding  the  old  family  is  for  our  laws  to 
sanction  freedom  to  make  a  will.  But  would  freedom  to  make  a  will  change 
our  customs?  In  order  to  be  sure  that  it  would  produce  the  same  effect  in 
France  as  it  has  in  England  we  should  have  to  begin  by  acquiring  the  Anglo- 

200 


Topic  lO]  THE   PATERNAL   POWER  [§  168 

where  the  independence  of  children  with  respect  to  the  family 
is  far  more  energetically  maintained.^ 

Saxon  temperament.  To  the  advantages  claimed  for  it  in  Provence,  ac- 
cording to  De  Ribbe,  II,  359,  has  been  opposed  a  passage  from  La  Bruyere, 
"Caract.,"  XIV;  De  Curzon,  "Le  Gouvern.  Familial"  ("Ann.  d'Econ.  Soc," 
1877;  Nourrisson,  "Et.  s.  la  Puiss.  Pat."  1898;  Planteau  du  Maroussem,  op. 
cit;  Taudiere,  "Tr.  de  la  Puiss.  Pat.,"  1898). 

1  Starcke,  "La  Famille,"  ch.  IV;  Boistel,  "Le  Dr.  dans  la  Famille,"  1864. 
However,  let  us  observe  that  if  the  father  has  but  few  rights  over  the  person , 
he  has  many  over  property  (freedom  to  bequeath  by  will  in  England).  The 
law  compared  in:  "Bull,  de  la  Soc.  de  Leg.  Comp.,"  1889.  Summed  up  in 
Taudiere,  "in  f."  Pascaud,  "R.  Gen.,"  1891,  1892. 


201 


§1G9] 


THE   FMIILY 


[Ch.^.  I 


Topic  11.    Concerning  Illegitimate  Children 


§  169.  Germanic  Law. 

§  170.  Christian  Ideas. 

§  171.  The    Law   of   the    Monarchic 

Period. 
§  172.  The  Condition  of  Bastards. 


§  173.  Proof  of  Natural  Filiation. 
§  174.  Revolutionary  Law. 
§  175.  Legitimation. 
§176.  Legitimation  by  Rescript  from 
the  Prince. 


§  169.  Germanic  Law.  —  The  disgrace  which  so  long  was  at- 
tached to  birth  out  of  marriage  does  not  seem  to  go  back  so  far  as 
the  Germanic  law;  ^  this  legislation  was  hardly  concerned  at  all 
with  the  purity  of  morals;  irregularity  in  the  question  of  birth  was 
not  of  very  much  importance,^  unless  there  was  joined  to  it  an- 
other element,  the  baseness  of  the  station  of  the  mother.^  Whether 
born  out  of  marriage  or  not,  the  cliildren  are  connected  with  the 
father,  provided  that  he  accepts  them.^  Ordinarily,  the  station 
of  illegitimate  children  varied  with  that  of  the  mother.  Those 
who  were  born  of  a  noble  mother  were  treated  better  than  those 
who  were  the  issue  of  an  intercourse  with  a  woman  of  lower 
station.  This  sort  of  union  was  frequent,  the  laws  ordinarily  lim- 
iting themselves  to  the  punishment  of  the  misalliances  of  noble- 

1  Kochne,  "Geschlechtsverb.  d.  Unfr.,"  1888,  p.  11  and  35;  Brunner,  op. 
cit.;  Du  Plessis  de  Grenedan,  "These,"  p.  188,  290. 

2  The  contrary  opinion  still  numbers  a  few  partisans:  Amiable,  p.  372; 
Pardessus,  698;  Glasson,  III,  33.  The  disfavor  which  certain  barbarian 
documents  show  with  regard  to  illegitimate  children  does  not  have  its  origin 
in  the  Germanic  customs,  in  which  one  notices  little  concern  as  to  whether 
bastards  are  separated  from  the  domestic  hearth  and  the  lawful  family  is 
elevated  by  lowering  the  natural  one. 

^  Polygamy:  Grimm,  p.  440;  Weinhold,"!).  Frauen,"  II,  13;  Glasson,  III, 
6;  Merovingians:  Greg.  Tours,  4,  3;  4,  26;  3,  22  et  seq.;  Fredeg.,  IV.  60; 
"Lib.  Hist.  Franc,"  c.  28.  Polygamy  did  not  exclude  concubinage.  Harald 
Harfagr  had  ten  wives  and  twenty  concubines  at  the  same  time:  Koenigs- 
warter,  p.  67.  The  old  Icelandic  law  held  that  children  born  of  exiles,  mendi- 
cants, etc.,  were  incapable  of  inheriting.  In  Denmark  cohabitation  for  three 
years  gave  the  concubine  the  position  of  a  lawful  spouse  (Dareste,  "Etudes," 
p.  309);  in  a  case  of  this  sort  the  children  should  be  legitimate.  Oriental 
usages:  the  children  of  the  concubines  belong  to  the  lawful  spouse  (photo- 
graphs of  the  Empress  of  China  holding  in  her  arms  children  that  other  women 
have  borne  to  her  husband.  Jacob  and  the  maid  servants  of  Leah  and  Rachel, 
Abraham  and  Hagar).  —  The  Irish  custom  of  Gavelkind  (same  rights  as 
legitimate  children). 

•*  Greg.  Tours,  7,  27.  Gondovald  calls  himself  the  natural  son  of  Clo- 
taire.  The  latter  protests:  "Hunc  ego  non  generavi."  Brunner, _  "D.  R.  G.," 
I,  76.  Cf.  Michelet,  "Orig.,"  p.  12.  (Gallic  custom  of  recognition  by  a  kiss 
from  the  head  of  the  family  after  the  death  of  the  father:  Dareste,  "Etudes," 
p.  310:  the  father  acknowledges  his  natural  cliild  before  the  "Ting." — As 
to  the  practices  of  "Niyoga"and  of  the  "Levirate,"  see  "  Levirate,"  §  18; 
Dareste,  I,  p.  109. 

202 


Topic  11  ]  CONCERNING   ILLEGITIMATE   CHILDREN  [§  169 

women.*  (I)  Children  born  of  a  free  woman.  Their  situation  is  the 
equivalent  of  that  of  the  child  born  of  a  legal  wife,  or,  at  least,  it 
approached  it.^  They  belong  to  the  family  of  their  father  when 
he  has  accepted  them,  are  under  his  "mundium,"  and  have  the 
rights  of  inheritance,  the  extent  of  which  varies  according  to  the 
laws.^  Thus,  the  natural  sons  of  the  Merovingians  inherited  from 
them  ^  in  competition  with  their  legitimate  children.^  It  was 
the  rule  in  the  old  Frankish  law,  as  it  was  in  the  old  Scandinavian 
law.^    In  Lombardy  the  hereditary  right  of  "filii  naturales"  was 

^  See  "Concubinage."  Thus  from  a  marriage  which  was  regular  from  the 
point  of  view  of  the  Church  there  might  be  born  bastards. 

2  Lombard  law  "naturahs  ignobihter  natus"  as  contrasted  with  "nobilis," 
"fullborn":  "Roth.,"  61,  154  (Ficker,  "Erbenfolge,"  II,  237);  right  of  in- 
heritance of  "fihi  naturales"  inferior  to  that  of  lawful  children  (one- third  at 
the  most),  362,  158-160,  161;  "Liut.,"  13.  These  "filii"  are  born  of  the 
union  of  the  master  with  his  "aldia"  or  freed-woman,  "wirdibora":  "Roth.," 
222;  "Liut.,"  106;  cf.  "Roth.,"  156:  lesser  right  of  the  child  born  of  a  free 
man  and  the  slave  of  some  one  else  purchased  and  set  free.  —  Anglo-Saxon 
law  argues  contrary  to  this:  "Ina,"  27;  "Alfred,"  8.  Old  Norweigan  law:  chil- 
dren born  of  a  marriage,  of  a  free  concubine  (likened  to  the  former),  of  a  hidden 
union  with  a  free  woman  (the  same  if  they  were  kept  by  the  father),  or  of  a 
connection  with  a  female  slave  (they  are  only  free  by  virtue  of  an  enfranchise- 
ment, and  under  these  circumstances  their  station  is  inferior  to  that  of  the 
preceding).     Cf.  Sweden,  Dareste,  "Etudes,"  p.  292. 

^  "Roth.,"  154  et  seq.;  "App.  Marculf.,"  47  (calling  to  succession);  Papien, 
37  (one-eighth  for  the  concubine  and  the  children);  "Cod.  Theod.,"  4,  6,  7; 
"App.  Marc,"  52  (power  to  give  all  his  possessions  to  bastards  if  he  has  no 
legitimate  cliildren);  "Epit.  Julian.,"  "Nov.,"  82,  12;  "Cone.  Tribur.,"  49; 
P.  de  Font.,  p.  490. 

*  Brunner,  op.  cit.  Thierry,  son  of  one  of  Clovis's  concubines,  etc.,  Greg. 
Tours,  5,  20;  4,25;  "Vita  Balthild.,"  2;  "Vit.  Columban.,"  "Ann.  Bened.," 

II,  17.  Under  the  Carolingians  the  illegitimate  children  of  the  kings  seem 
to  have  lost  the  right  to  succeed  to  the  throne:  "Div.  Imp.,"  806,  817,  831. 
Cf.,  however,  Charles  Martel,  Arnulf,  Bernard  (son  of  Pepin).  William  the 
Bastard:  "Ann.  Fuld.,"  885,  889;  D.  Bouquet,  VIII,  45,  etc.;  Stryckius, 
"De  Filiis  Natur.  Regum,"  1700.  In  Norway  illegitimate  children  born  of 
a  free  mother  succeed  to  the  throne  in  the  same  way  as  legitimate  sons  until 
1260,  after  which  the  latter  are  preferred;  in  1273  bastards  succeed  after, 
nephews.  —  Goths,  Vandals,  Normans  (William  the  Conqueror,  or  the 
Bastard). 

^  Calling  to  the  succession  daughters  born  of  a  slave:  "App.  Marc," 
47,  sons  born  of  a  marriage  with  a  free  woman,  but  without  "libellus  dotis," 
from  which  it  follows  that  the  children  are  "naturales  secundum  lege,"  ib. 
52;  "Nov.  Major.,"  VI,  9,  in  458;  "Berlin.  Akad.,"  1894,  553;  from  the 
"  Nov.  of  Theodosius,"  II,  443  (22,  c  1  and  2  in  the  "  L.  Rom.  Wisig."),  a  means 
of  giving  rights  of  inheritance  to  illegitimate  children  was  devised  through  a 
will  presented  at  the  "curia,"  cf.  offering  to  the  "curia;"  Viollet,  396;  Th6- 
venin,  35;  Brunner,  p.  24. 

'  The  Germanic  tradition  is  continued  in  the  later  French  practice  ac- 
cording to  which  the  bastard  is  still  connected  with  the  family  of  his  father, 
• — transmission  of  name,  arms,  sometimes  of  a  title  of  nobility:  "Artois," 
1509,  1544,  144,  201;  "Cout.  du  Bourg.de  Bruges,"  ed.  Gilliodts  van  Severen, 

III,  271;  "Comt6  de  Berg,"  c.  12;  Fertile,  3,  341,  13;  Houard,  "Diet,  de  la 
Cout.  de  Norm.,"  I,  160;  Loysel,  62;  the  bastard  who  is  acknowledged,  that 
is  to  say,  recognized  by  his  father,  is  noble;  an  Ordinance  of  Henry  IV,  March, 
1600,  26,  would  demand  letters  of  nobility.     Thus  usage  for  a  long  time  re- 

203 


§  169]  THE    FAMILY  [Chap.  I 

at  most  to  one-third  of  the  inheritance.^  Of  this  old  law,  for 
a  long  time,  privileges  for  the  bastards  of  princes  and  nobles 
remained.^  (II)  Children  horn  from  a  mother  who  was  not  noble? 
They  were  looked  upon  as  dependent  servants,  as  was  their 
mother.'*  Enfranchisement  left  them  in  a  lower  station.  Neither 
did  they  inherit  from  their  father,  because  slaves  cannot  inherit, 
nor  from  their  mother,  because  the  latter  could  not  have  any 
heirs  (whether  she  were  a  slave  or  a  freed-woman,  at  least,  ac- 
cording to  the  Frankish  law).  Their  own  inheritance  did  not  go 
to  their  relatives  (children  or  others),  but  to  their  "dominus"  or  to 
their  patron;  and  when  this  patron  was  the  king,  as  when  it  was  a 
question  of  a  "denarialis,"  it  was  the  Treasurer  who  collected  it. 
This  was  not  very  far  from  the  rules  of  the  later  law:  1st,  bas- 
tards do  not  inherit;  2d,  the  king  or  the  lord  inherits  from  bastards. 
§  170.  With  the  Christian  ideas,^  there  appeared  a  new  con- 
ception of  illegitimacy.  In  the  contemplation  of  the  Church  every 
child  born  out  of  marriage  ^  was  illegitimate;  ^  every  union  other 

sisted  the  rule  which  connects  nobility  with  legitimacy:  Lagrhze,  "Hist,  du  Dr. 
d.  dans  les Pyrenees,"  157;  "Navarre,"  "fr."  II,  195;  "K.  V.  J.,"  IV,  3s., 59. 

1  Cf.  "Bai.,"  14,  8,  2;  "Sachsensp.,"  I,  51,  1;  Ficker,  II,  237. 

2  French  practice:  bastards  of  the  king  are  princes,  nobles  or  lords,  or 
gentlemen.  Illegitimate  sons  of  Louis  XIV,  p.  142,  II,  Stryckius,  "De  Lib. 
Natur.  Regum,"  1700;  DeBelleval,  "Les  Batards  de  la  Maison  de  France,"  1901. 

3  Kohne,  op.  cit.;  Meynial,  p.  38;  Du  Plessis,  p.  293  (bibl.). 

4  "Cod.  Theod.,"  14,  7,  1;  "Wis.,"  "Cod.  Theod.,"  14,  1;  Papien,  37, 
5;  "Cod.  Theod.,"  4,  6,  7;  "L.  Rib.,"  58,  10;  cf.  rule:  "servus  trapit  adse 
francum"  ("Epistolse  conculcatorise");  "Cart.  Senon.,"  42;  Papien,  37,  3. 
The  child  of  a  free  man  and  the  slave  of  some  one  else  belongs  to  the  master 
of  the  latter.  This  is  the  same  in  the  Lombard  law.  —  But  the  child  born  of 
a  permanent  union  ("Form.  Sen.,"  42)  between  the  master  and  his  own  slave 
was  free  as  a  general  thing:  "Cod.  Dipl.  Langob.,"  no.  6;  "Roth.,"  156; 
"Liut.,"  66;  "Alam.,"  18,  3;  "Fris.,"  6;  "Bai.,"  15,  9:  the  child  of  the 
"ancilla"  only  has  what  his  brothers  give  him  "per  misericordiam "  out  of 

.the  inheritance  of  his  father  (Paul,  "Galat.,"  iv,  30);  Greg.  Tours,  5,  20. 

^  Their  influence  is  already  very  strongly  marked  in  the  laws  of  the  Lower 
Empire,  which  limit  the  rights  of  inheritance  of  illegitimate  children:  "Cod. 
Th6od.,"  IV,  6.  During  the  classical  period  the  illegitimate  child,  who  had 
no  connection  with  his  father,  had  with  respect  to  his  mother  the  same  rights 
as  a  legitimate  child:  Girard,  p.  180.  With  Constantine  forfeitures  and  in- 
capacities suddenly  made  their  appearance. 

8  Terminology:  In  Rome:  "liberi  naturales,"  "spurii,"  "vulgo  concepti."  — 
The  most  widespread  term  in  Western  Europe  is  "bastard"  or,  "filsde  bast" 
that  is  to  say,  a  child  begotten  upon  a  pack-saddle,  as  they  say  in  English, 
"bankart,"  begotten  upon  a  bench;  in  Germany,  "Winkelkind"  or  "Hor- 
nung,"  child  of  a  corner;  various  terms  calling  up  the  idea  of  irregular  birth, 
of  conception  outside  of  the  nuptial  bed.  "Wildflugel,"  wild  bird  (without 
family),  "Avoltres,"  children  born  of  an  adulteress.  "Sacrileges,"  sons 
of  priests.  "Manceres"  ("Siete  Part."),  sons  of  a  prostitute,  "Bort," 
"campi"  ("Bord.,  A.  C.");  cf.  G.  Sand,  "Frangois  le  Champi";  Grimm, 
I,  655;  "Hijo  de  Ganancia,^'  "F.  de  Nav.,"  4,  4;  "Siete  Part.,"  IV,  15,  1; 
Du  Cange,  see  "Bastardus." 

'  In  the   thirteenth  century  exclusive  jurisdiction  of  the  ecclesiastical 

204 


Topic  ll]  CONCERNING    ILLEGITIMATE    CHILDREN  [§  170 

than  marriage  was  a  sin.^  It  punished  this  iUicit  intercourse  upon 
the  person  of  the  parents,  and  even  upon  that  of  the  children,  for 
these  latter  came  into  the  world  with  an  original  stain  ("macula 
bastardise ").  It  was  especially  severe  as  regarded  children  born 
of  an  adulteress,  born  of  an  incestuous  connection,  or  the  sons  of 
priests  ("ex  damnato  coitu").^  The  dishonor,  or  even  the  infamy, 
and  its  serious  consequences,  such  as  the  incapacity  to  inherit,''' 
affected  them  because  of  the  single  fact  of  the  irregularity  of  their 
birth.^  Every  natural  child,  on  principle,  was  thenceforth  out  of 
the  family,  and,  consequently,  almost  outside  of  the  law.  The 
prince  was  supposed  to  protect  them  during  the  Franldsh  period, 
and  the  Feudal  lord  who  succeeded  him,  who  had  charge  of  pro- 
viding for  the  needs  of  abandoned  children,  often  treated  the 
latter  as  his  serfs,  the  more  so  as  the  mother  herself  was  often  of 
servile  condition.^  Where  they  did  not  go  so  far  as  this,  these 
children  did  not  escape  the  law  of  mortmain,^  and  they  were  not 
allowed  to  inherit  from  their  mother,  excepting  under  some  Cus- 
toms in  which  the  rule  "no  one  is  a  bastard  on  his  mother's  side" 
was  followed.^    They  were  likened  to  aliens,  who  were  also  with- 

courts:  "Summa  Norm.,"  c.  25;  cf.  Beaum..,  18,  3;  45,  16;  C,  35,  q.  7, 
c.  1;  C,  32,  q.  4,  c.  15.  The  register  of  the  ecclesiastical  judge  of  Cerisy 
bears  witness  to  the  great  number  of  bastards.  It  is  the  same  in  Navarre: 
(Lagreze);  Boutaric,  I,  95;  "Jost.,"  p.  56,  245. 

1  Saint  Thomas,  "Summa  Theol.,"  3;  "Supp.,"  q.  68.  Traces  of  these 
ideas  especially  in  "Siete  Part.,"  IV,  13  and  15. 

2  "L.  d.  Droiz,"  no.  770;  as  contrasted  with  children  born  "ex  soluto  et 
soluta,"  that  is  to  say,  of  persons  between  whom  marriage  was  possible  (simple 
natural  children).  "Nefarii,"  children  of  clericals.  Atite,  "Impediments  to 
Marriage."  —  Benecke,  "Strafrechtl.,"  Lehre  v.  Ehebruch,"  1884;  "Siete 
Part.,"  VII,  17  etseq.;  Lusignoli,  "Figli  Adult,  e  Incest.,"  1890;  D'Aguesseau, 
IV,  398  (ed.  1772). 

3  "Sal.,"  14,  16;  "App.  Marculf.,"  52,  54;  "Capit.,"  7,  473;  cf.  Paul, 
"Galat.,"  iv,  30;  Gratian,  "D.,"  34;  Freisen,  §  74. 

^  "Bord.,  A.  C,"  177;  out  of  hatred  of  the  sin  of  fornication:  "Jost.," 
p.  30,  34. 

*  Their  situation  is  similar  to  that  of  serfs  and  of  aliens,  without  its  being 
possible  to  compare  them  absolutely  and  in  every  place.  —  "Cone.  Tolede," 
655,  c.  10.  Bastards  of  priests  are  the  serfs  of  the  Church  of  their  fathers: 
"Bourg.,  A.  C,"  19;  "Bourb.,"  194;  "Bout.,"  I,  95.  Rights  of  collecting 
tribute,  of  reclaiming  and  of  fees  for  the  marriage  of  a  vassal:  Bacquet,  "Dr. 
d'Aubaine,"  I,  4;  "Laon,"  7;  "Reims,"  338;  Louet,  2,  1,  1;  Ragueau, 
see  "  Bastard " ;  Loysel,'i2;  Mortmain:  "Et.  de  Saint  Louis,"  I,  101;  "Olim," 

I,  668,  846,  913;  "Bord.,  A.  C,"  77;  "Bourg.,  A.  C,"  198,  199,58  (Giraud, 

II,  302);  Vitry,  "Etudes,"  I,  p.  297;  Brussel,  p.  955;  Stobbe,  "D.  Privatr.," 
§  47,  3.     (In  certain  localities,  the  same  burdens  as  serfs.) 

^  According  to  Beaumanoir,  the  bastard  does  not  have  the  station  of  his 
father  nor  that  of  his  mother:  cf.  45,  76,  35;  Desmares,  240.  In  the  same 
way  in  England,  the  bastard  is  a  free  man:  Littleton,  188  ("filius  nullius"); 
Pollock  and  Maitland,  II,  394  (William  the  Bastard?). 

^  "Sachsensp.,"_  I,  51;  Bnut.^  I,  95;  Chaisemartin,  66.  In  localities  where 
this  maxim  is  received  the  illegitimate  child  forms  a  part  of  the  family  of  his 

205 


§  170]  THE   FAMILY  [Chap.  I 

out  lineage,  who  had  no  connection  in  the  country.^  Among  other 
incapacities  which  affected  them,  and  which  sometimes  persisted 
for  a  long  time,  figured  those  of  receiving  ecclesiastical  benefices,^ 
of  exercising  public  functions,^  of  being  judges,  sometimes  even 
of  being  witnesses  ^  or  of  acquiring  fiefs.^  In  the  time  of  Beau- 
manoiP' their  admission  into  the  hospitals  is  even  doubtful,^  and 
an  echo,  as  it  were,  of  this  repulsion  is  found  in  the  singular  rules 
of  some  German  States,  according  to  which,  in  the  eighteenth 
century,  their  bodies  had  to  serve  for  purposes  of  anatomical  dis- 
section.'^  The  Church  only  favored  bastards  in  two  ways:  1st,  in 
formulating  the  rule  that  every  natural  child  ^  has  a  right  to  main- 
tenance at  the  hands  of  his  father  and  mother;  2d,  in  facihtating 

mother;  he  is  a  stranger  to  his  father  (Franconia,  Colmar,  Cologne,  etc.). 
Netherlands  and  Belgium,  see  Koenigswarter,  p.  43  (and  bibl.).  There  was 
some  conflict,  however,  as  to  whether  he  inherited  from  his  maternal  relatives 
as  well  as  from  his  mother.  In  southern  Holland  a  child  born  of  an  adul- 
teress or  of  an  incestuous  union  inherits  from  his  mother:  cf.  De  Mauroy, 
"La  Noblesse  Maternelle,"  1882;  Riston,  id.,  1878;  Picker,  III,  437. 

1  There  is  often  a  question  as  to  "  explectatio  albenorum  et  bastardorum" : 
"Olim";  Table,  see  "Bastardi." 

2  Dig.  X,  "de  fil.,  presbyt.  c.  ut.  fil."  ("Poitiers,"  1078);  "Trente," 
sess.,  25,  c.  15;  "  Mem.  du  Clerge,"  12,  697.  Sometimes  they  are  not  admitted 
to  the  doctor's  degree:  "Siete  Part.,"  IV^  15,  3. 

3  "Jost.,"  34,  36  (annulment  of  election);  Pithou,  "Lib.  d'Eglise  Gall.," 
2L  D'Aguesseau  maintains  that  the  point  is  in  dispute  (the  Ordinances  are 
silent).  In  Rome  the  "spurii"  themselves  were  capable  of  assuming  public 
functions.  In  Germany  the  Diet  of  the  Empire  must  have  enacted  that  no 
inquiry  should  be  made  into  the  legaUty  or  illegaUty  of  a  person's  birth  be- 
fore he  was  admitted  to  a  profession  or  trade:  "Landr."  (Prussian),  II,  2, 
662;  "Cod.  Autrich.,"  1,  3,  161. 

^  Beaumanoir,  39,  22,  40,  37,  63,  2  (not  admitted  to  the  duel  at  law  against 
persons  of  a  different  station):  "  Jostice,"  pp.  30,  34,  74,  81,  177;  Stobbe,  §  47, 
3;  "Vetus  Auctor  de  Benef.,"  1,  4.  In  Germany,  localities  where  the  bastard 
is  "rechtlos":  Heusler,  I,  193;  Koenigswarter,  p.  48;  "F.  de  Nav.,"  4,  4,  11; 
"Jost.,"  177. 

B  "L.  Feud.,"  2,  26,  10;  "Milan,"  1216,  29;  1541,  II,  62;  Struve,  "Jurispr. 
Heroica,"  IV,  530;  "Et.  de  Saint  Louis,"  I,  89;  Loysel,  60;  "Bourg.,  A.  C," 
20,  etc.;  "Sachsensp.  Landr.,"  Ill,  54,  3;  Fertile,  3,  388,  10  (Candia). — 
Lauriire  says  (Loysel,  60)  that  they  were  forbidden  to  acquire  lands,  fiefs, 
copyholds  or  allodial  holdings  (one  might  argue  the  contrary  from  an  enact- 
ment of  1329,  which  gives  this  authority  to  two  bastards).  The  "Summa 
Norm.,"  35,  6,  recognizes  them  as  having  a  right  to  acquire  excepting  through 
inheritance. 

®  46,  4;  he  compares  them  to  aliens. 

^  "Hesse,"  "Brunswick,"  Stobbe,  §  47,  3.  Formerly,  in  certain  localities 
they  went  so  far  as  to  refuse  them  religious  burial. 

8  Even  one  born  of  an  adulterous  or  of  an  incestuous  union:  Dig.  X,  4, 17, 
10;  4,  7,  5;  c/.,  however,  "Jostice,"  p.  212,  §  11,  "in.  f.";  "Montpellier," 
1205,  13;  up  to  three  years.  Cf.  canon  law  wdth  regard  to  lawful  filiation: 
"Alais,"  20:  "L.  d.  Droiz.,"  851;  Boutaric,  "Inst.,"  1,  10,  12;  D'Aguesseau, 
34th  "plaid";  Loysel,  1,  1,  41.  Some  Customs  say  that  a  bastard  from  the 
time  he  is  born  is  understood  to  be  out  of  the  care  of  his  parents;  but  it  is  ad- 
judged that  whoever  has  a  child  must  support  it:  Lehr,  p.  122;  D'Olive., 
"Quest.,"  II,  p.  160  (ed.  1638);  Pantani,  "De  Alim.,"  2,  9. 

206 


Topic  11  ]  CONCERNING   ILLEGITIMATE   CHILDREN  [§172 

their  legitimation.  In  an  indirect  manner  it  came  to  their  assist- 
ance by  obliging  the  seducer  to  marry  the  girl  seduced  or  to  give 
her  a  marriage  portion  (action  "due  vel  dota").^ 

§  171.  The  Law  of  the  Monarchic  Period  raised  the  condition 
of  bastards  as  it  had  improved  that  of  serfs  and  aliens.  The 
majority  of  the  old  disabilities  disappeared.  The  seigniorial 
right  of  bastardy  became  transformed  into  a  domanial  right;  ^ 
in  this  way  its  abolition  was  facilitated.  It,  however,  maintained 
the  principle  that  bastards  had  no  family :  "  nee  genus  nee  gentem 
habent";^  an  untrammeled  mind  like  jNIontesquieu  then  justified 
the  inferiority  of  bastards  by  reason  of  the  interest  of  society  with 
respect  to  marriage.  The  recognized  right  of  natural  children  to 
maintenance  allowed  them  to  seek  out  their  father  as  well  as 
their  mother. 

§  172.  The  Condition  of  Bastards  is  summed  up  finally  in  a 
few  remnants  of  their  old  incapacities,  and  in  the  idea  that  they 
have  no  family,  not  even  a  maternal  family,^  and  that  as  a  conse- 
quence they  are  not  submitted  to  the  paternal  power,  ^  but  simply 
to  a  guardianship,  and  that  they  do  not  inherit  the  title  of  nobility 
of  their  father.®     1st.  The  inheritance  of  the  bastard  belongs  to 

1  "Exodus,"  xxii,  16;  "Deuter.,"  xxii,  28;  Dig.  X,  16,  1;  Britz,  p.  557; 
German  common  law.  Idem.  Custom  of  the  South,  for  example,  Lezat., 
Art.  32;  "Montcuq,"  11. 

^  At  least  from  the  fourteenth  century.  —  The  bastards  declare  them- 
selves to  be  king's  men:  cf.  "Et.  de  Saint  Louis,"  2,  31;  "Ohm,"  I,  495,  15; 
"Olim,"  II,  456;  "Ordinacio"  of  1301,  as  to  persons  in  mortmain,  aliens 
and  bastards.  The  people  of  the  king  and  the  lord  both  claim  them :  Ragueau, 
see  "Bord.,  A.  C,"  77;  "Gr.  Gout.,"  1,  3,  p.  103;  Isambert,  I,  574;  IV,  520; 
VII,  156.  Excepting  the  lords  justices  have  a  right  to  claim  them,  according 
to  general  opinion,  if  the  bastards  are  born  within  their  territory,  live  there 
and  are  trespassers  upon  it:  Loysel,  65;  Bout.,  I,  95,  103.  —  England:  Royal 
rights  at  every  period. 

_  ^  A  principle  contrary  to  the  rules  which  continue  to  exist  among  the 
high  nobility  of  Germany :  transmitting  of  the  father's  name,  paternal  power. 
Apanage:  Brunner,  p.  10. 

^  He  takes  the  name  of  whichever  one  of  his  parents  with  regard  to  whom 
his  filiation  has  been  established,  —  of  his  father  if  he  has  been  recognized  by 
both  of  them:  Denisart,  see  "Quest.  d'Etat." 

*  He  is  out  of  the  care  of  his  parents;  he  has  no  need  of  the  consent  of  his 
parents  in  order  to  marry:  Loysel,  1,  1,  41;  "Roisin,"  p.  83.  At  the  age  of 
fifteen  he  can  alienate  his  possessions,  whereas  the  legitimate  children  were  not 
able  to  do  this:  (Laur.)  "Bret.,  T.  A.  C.,"  266,  267;  "A.  C.,"  452;  "N.  G.," 
478;  "Jostice,"  p.  81:  the  bastard  cannot  call  upon  his  mother  to  appear  in 
court.  The  custody  of  illegitimate  children  was  entrusted  b.y  the  courts 
sometimes  to  their  father,  sometimes  to  their  mother,  and  sometimes  to  third 
persons:  post,  "Guardianship." 

®  See  feudal  period.  In  fact,  bastards  of  mere  gentlemen  are  commoners, 
those  of  the  higher  lords  are  nobles,  but  of  an  inferior  degree:  Guy  Coquille, 
on  "Niv.,"  17,  26;  "Ord.,"  1629,  197.  The  jjar  placed  upon  their  coat-of- 
arms  was  not  at  first  a  mark  of  bastardy,  but  simply  a  means  of  distinguishing 
the  younger  children  from  the  head  of  the  house. 

207 


§  172]  THE    r.\MILY  [Chap.  I 

the  king/  and  in  exceptional  cases  to  the  lord  ^  (right  of  bastard}^, 
of  the  lord  over  the  possessions  of  bastards,  etc.),  if  he  has  no 
heirs  of  his  body.'  2d.  The  bastard  cannot  make  a  will  (excepting 
of  five  "sols"  "pro  remedio  animse");  ^  a  very  logical  rule  under 
the  Old  Regime,  difficult  to  justify  in  the  monarchic  period. 
From  the  thirteenth  century  it  is  limited;  in  the  sixteenth,  Du- 
moulin  establishes  the  fact  that  it  has  been  almost  everywhere 
abandoned.^  3d.  Bastards  do  not  inherit  ("ab  intestat.").^  4th. 
They  cannot  receive  by  gift  or  by  will.^  At  the  same  time,  as  they 
have  a  right  to  maintenance,^  their  parents  are  allowed  to  give  them 

1  "Et.  de  Saint  Louis,"  I,  101;  Desm.,  239-242;  "Bourg.,  A.  C,"  198; 
"Bord.,  A.  C,"  77;  Bacquet,  I,  174;  Pothier,  IX,  p.  46  (ed.  Bug.).  Obligation 
for  ttie  king  or  the  lords  to  take  care  of  foundlings,  but  an  obligation  which 
they  endeavored  to  evade:  "Arr.  Pari."  Paris,  1547,  1552;  Edict  of  June, 
1670;  Regl.  of  July  21,  1670  (foundlings);  Law  of  the  27th  Frim.,  year  V 
(asylums). 

2  By  what  right  did  the  king  or  the  lord  take  the  inheritance  of  the  bastard? 
Because  of  the  "  mundium  "  which  they  formerly  exercised  over  him,  and  which 
took  the  place  of  protection  for  him  by  his  family.  Beaumanoir,  45,  35, 
sees  in  this  property  without  an  owner.  Glanville,  7,  16;  Bout.,  I,  95  (p.  540) : 
the  lord  does  not  pay  the  debts  of  the  bastard.  Beaumanoir,  loc.  cit.,  only 
mentions  the  movables:  "Bret.,  T.  A.  C,"  270;  "Et.  de  Saint  Louis,"  I,  102, 
103  (IV,  78);  II,  31;  Boutaric,  "Inst.,"  1,  10,  12.  In  the  Netherlands  the 
right  of  bastardy  ("havescot")  was  done  away  with  at  a  very  early  time: 
Koenigswarter,  p.  46  (in.  1289,  1296,  etc.). 

'  Contra,  "Schwabenspiegel,"  c.  47.     Saint-Pol,  2,  27. 

4  Loysel,  60;  Bout.,  p.  543;  "Laon,  A.  C,"  6;  "Bret.,"  480  (children  born 
of  an  adulteress);  "Bourb.,"  184;  "Clermont,"  153;  "Et.  de  Saint  Louis," 
I,  97:  "The  bastard  can  give  to  charity  out  of  his  movables":  Desm.,  24; 
Glanville,  7,  16  (id.). 

^  Which  was  logical  as  soon  as  the  bastard  was  no  longer  a  serf:  Loysel,  60; 
Dumoulin  on"  Lille,"  29;  "Orl.,"  301,  311;  "Bourges,"  7;  "Bret.,"  451;  cf. 
"Bord.,  A.  C,"  77;  Beaumanoir,  45,  35;  Desmares,  24;  "Arr.,"  1279,  1327; 
Bynkershoeck,  "Quaest.  Jur.  Prov.,"  3,  11^  Koenigswarter,  p.  47  (Brabant, 
from  1247).  —  Various  restrictions  upon  this  power:  movaoles  only  or  a  lim- 
ited amount,  "Anjou,"  345;  "Maine,"  355;  "Poitou,"  399;  "Hainaut," 
85,  etc.;  born  "ex  soluto  et  soluta":  "Bret.,"  479,  480. 

8  From  their  relatives,  but  they  would  inherit  from  their  legitimate  children : 
"Sal.,"  14,  16  (incestuous  children);  "T.  A.  C,  Norm.,"  75;  "Summa,"  24; 
"Schwabenspiegel,"  47;  Beaum.,  18,  19^  Desmares,  239;  Bout.,  I,  95;  Loysel, 
1,  1,  45.  —  Customs  which' give  the  illegitimate  child  the  right  to  inherit  from 
his  mother:  "Nul  n'est  bastard  de  par  sa  mere."  Flanders,  Netherlands. 
Saint-Omer,  Tournay,  etc. :  Bout.,  1, 95 ;  Bouthors,  "  Cout.  du  Baill.  d' Amiens," 
p.  505;  Van  der Marck,  "Inst.  Jur.  Civ.  Reip.  Omland.,"  1761,  c.  II,  §  149 
("Li^ge,"  "Louvain,"  etc.,  contra);  Michelet,  "Orig.,"  p.  67;  Huber,  IV,  p.  532; 
Naples:  Carol,  de  Rosa,  "Ad  Cons.  Neap.,"  1677.  —  "Ass.  de  J6rus.,"  "C. 
de  B.,"  c.  60  (right  to  inherit  from  the  father  if  the  lawful  relatives  give  their 
consent).  —  Countries  of  written  law  (excepting  Grenoble):  no  inheriting 
from  the  mother:  Bretonnier,  on  Henrys,  6,  3,  1;  Salvaing,  56,  66.  —  The 
German  common  law  had  adopted  the  system  of  the  "Novelise"  of  Justinian. 
Cf.,  however,  Schulte,  p.  517;  Loysel,  440.  From  the  fact  that  bastards  do 
not  inherit  it  follows  that  they  are  not  allowed  to  exercise  the  right  of  re- 
purchasing by  a  person  of  the  same  lineage. 

7  "Paris,"  310;  "Orl.,"  310;  "Norm.,"  275;  "Bret.,"  450,  etc. 

8  Beaum.,  18,  20:  if  there  are  no  legitimate  children  the  same  disposable 
quantity  is  given  to  the  bastard  as  to  a  stranger;  if  there  are  any  legitimate 

208 


Topic  ll]  CONCERNING   ILLEGITIMATE   CHILDREN  [§1^3 

gratuities  with  some  special  object.^  These  diverse  rules  are  com- 
mon to  the  countries  of  written  law  and  countries  of  Customs.^ 

§  173.  Proof  of  Natural  Filiation.^  —  Natural  filiation  is  es- 
tablished: (a)  by  the  voluntary  recognition  or  admission  of  the 
parents/  sometimes  expressed,^  sometimes  implied  (in  the  case 
of  possession  of  status  only) ;  ^  (b)  by  establishing  in  court  the 
maternity  or  the  paternity.  The  investigation  of  the  paternity, 
which  is  difficult  to  conceive  of  in  the  case  of  the  very  old  law/ 
was  permitted  in  the  interest  of  the  child,  of  the  girl  mothers  who 
took  care  of  it,  and  in  Brittany  ^  in  the  interest  of  the  parish  held 
bound  to  provide  for  its  needs,^  when  the  parents  were  not  known: 

children  he  only  has  a  right  to  maintenance :"  Alais, "  20 ;"  Bret .,"  475 ;"  Schwab- 
enspiegel";  "Ass.  de  J(5rus.,"  "C.  de  B.,"  178:  the  father  cannot  give  any- 
thing to  the  bastard  without  the  consent  of  the  legitimate  children  or  of  his 
own  father  and  mother;  if  none  of  these  are  living  he  can  give  him  every- 
thing: "Summa  Norm.,"  35,  2  and  3;  they  do  not  have  any  legal  share: 
Bacquet,  I,  159. 

1  Sic,  Dumoulin,  on  13  "Lille"  (special  legacies,  which  are  not  excessive); 
Loysel,  61:  legacies  of  maintenance  only,  which  still  continued  in  the  case  of 
children,  born  of  an  adulteress  and  those  of  an  incestuous  union.  Juris- 
prudence was  still  not  very  precise  in  the  seventeenth  century:  Merlin,  see 
"Bastard,"  4,  6;  "Anjou,"  "Maine";  gifts  "inter  vivos"  only;  Poitou, 
Brittany:  in  usufruct.  As  a  general  thing  bastards  are  able  to  receive  gifts 
from  third  parties  (contra,  "Melun"):  Bacquet,  I,  150;  Huber,  IV,  538; 
Bugnyon,  "Lois  Abrog.,"  I,  51. 

2  Bacquet,  I,  149. 

3  Fournel,  op.  ciL;  Allard,  "Pr.  de  la  Fil.  hors  M.,"  1858;  Heau,  "Pa- 
ternity et  Fil.,"  1868;  Baret,  "Preuve  de  la  Fil.  Nat.,"  1872;  Millet,  "La 
Seduction,"  1876;  Berge,  "R.  g6n.  de  Dr.,"  1878,  417;  Giraud,  "R.  Crit. 
de  L.,"  1884,  590;  Amiable,  "Pr.  de  la  Pat.  hors  M.,"  1885;  Rivet,  "Rech. 
de  la  Pat.,"  1890;  "R.  Cath.  des  Inst.,"  I,  568;  II,  69;  XXII,  296;  "Arch. 
Giur.,"  24,  162;  25,  385;  "R^forme  Soc,"  1897,  vol.  33  {Gigot);  Giacobone, 
"Dir.  d.  Donna  Sedotta,"  1891;  Viollet,  p.  478  (bibl.);  Esmein,  "Mariage," 
II,  38. 

*  To  a  recognizing  of  illegitimate  children  let  us  liken  declarations  of  preg- 
nancy and  confinement  imposed  upon  girl-mothers  by  the  Edict  of  February, 
1566;  it  is  necessary  that  there  be  witnesses  to  the  confinement;  thus  the 
proof  of  maternity  resulted  therefrom. 

^  Either  at  law  or  by  an  extrajudicial  act  (under  private  or  authenticated 
seal,  certificate  of  baptism).  A  verbal  admission  would  probably  have  suf- 
ficed. As  to  admission  by  the  mother,  of.  Beaum.,  18,  3;  "Olim,"  III,  1494 
("C.  d'Alais");  "T.  A.  C,  Norm.,"  75. 

'  Child  born  "ex  concubina  doma  relenta":  Bacquet,  1,  1,  2;  Guyot,  see 
"Aliments." 

^  Ordeals,  duel:  "Roth.,"  164;  Grimm,  p.  463.  Ex.  of  De  Gondovald,  in 
Koenigswarter,  p.  63:  "F.  de  Navarre,"  4,  4,  1.  But  cf.  as  to  this,  "Rights 
of  the  Father."  —  "Vaterschaftsklage"  in  Switzerland,  at  the  end  of  the 
fifteenth  century:  Huber,  TV,  535. 

^  Poidlain  du  Pare,  VIII,  166. 

^  English  law:  the  parishes  which  have  not  many  resources  and  upon 
which  the  care  of  the  poor  was  imposed  under  Elizabeth  found  themselves 
compelled  to  have  recourse  to  relatives:  "R.  h.  Dr.,"  12,  527;  Koenigswarter, 
p.  49;  Lehrj  p.  123;  Glasson,  V,  476.  In  France  the  monasteries  and  alms- 
houses receive  chilaren  who  are  forsaken;  thus  the  burden  of  the  parishes  is 
not  so  heavy. 

209 


§  173]  THE   FAJMILY  [Cn.\P.  I 

"  whoever  has  a  child  ought  to  support  it."  ^  How  was  this 
responsibiHty  of  the  father  enforced?^ —  (A)  Simply  on  her  own 
statement,  a  woman  or  girl  who  was  enceinte  obtained  from  the 
author  of  her  pregnancy  a  provision  for  maintenance  of  the  child  and 
the  expenses  of  confinement  for  herself:  "creditur  virgine  parturi- 
enti,  asserenti  se  prsegnantem  esse  ex  aliquo."  ^  The  custom  of 
these  declarations  is  perhaps  derived  from  the  proof  by  means  of 
the  oath.^  The  Ordinance  of  Februrary,  1556,  with  the  object  of 
preventing  concealment  on  the  part  of  the  father,  provided  for 
declarations  of  pregnancy  and  confinement  by  the  mother,  but 
without  attaching  to  them  any  obligations  for  the  father.^  —  (B) 
This  allowance  of  the  confinement  expenses  had  an  entirely 
provisional  character;  no  prejudice  upon  the  question  of  the  pa- 
ternity resulted  therefrom;  ®  the  latter  was  the  object  of  a  dis- 
tinct action,  wherein  the  mother  sought  to  establish  relations  ^ 
(frequenting)  between  herself  and  the  man  whom  she  held  respon- 
sible for  her  pregnancy  (cohabitation,^  indications  of  familiarity, 
writings),  and  the  latter,  as  his  defense,  showed  her  misconduct 
("exceptio  plurium  constupratorum").^    If  the  suit  were  won  by 

1  The  erroneous  ideas  which  were  in  vogue  for  a  long  time  upon  this  point, 
and  which  one  can  find  set  forth,  for  example,  in  Demolombe,  have  been  re- 
futed by  Baret,  op.  cit. 

-  Loysel,  59;  Dig.  X,  "deSpons.,"  1. 

3  Favre,  "Cod.,"  4,  14,  18.  Favre  requires  an  oath  and  does  not  apply  the 
rule  to  the  woman  who  leads  an  evil  life;  nor  does  he  admit  of  the  declaration 
as  agaiiLst  a  married  man.  Fournel  does  not  recognize  these  restrictions. 
(But  does  not  Favre  look  upon  this  maxim  as,  in  the  last  analysis,  determin- 
ing the  question  of  paternity?)  This  mere  declaration  was  adhered  to  be- 
cause the  expenses  of  the  confinement  were  thus  not  affected  by  delay. 

*  At  Neufchatel,  "Geniessverhor,"  or  declaration  made  by  the  woman 
during  the  pains  of  childbirth  at  a  time  when  she  is  liable,  as  she  believes,  to 
appear  before  God,  and  during  which  she  risks  her  salvation  in  not  speaking 
the  truth  (cf.  judgment  of  God).     Example  cited  by  D.  La  Tour,  p.  59. 

^  The  Ordinance  was  not  obeyed  very  well,  it  would  seem,  although  a  few 
judges  made  use  of  it  as  a  pretext  to  have  an  examination  made  of  girls  who 
were  suspected  of  being  enceinte:  Decl.  Feb.  25,  1788;  Isamb.,  13,  471; 
20,  527;  27,  472.  Recent  Orders  which  make  mention  of  them:  "Cass.,'' 
Dec.  1,  1869;  "D.,"  70,  1,  97;  Planiol,  "Dr.  Civil,"  I,  717.  Strictly  speak- 
ing, the  father  might  not  have  been  named  ("Arr.  de  Rennes,"  March  28, 
1637);  but  as  a  matter  of  fact,  it  seems  that  he  always  was:  Duval,  "Cahiers 
de  la  Marche,"  116;  Bonnabelle,  " ]Mogn6ville,"  p.  15  {cit.  by  Viollet,  p.  469); 
Fournel,  see  Table,  "Forme  de  la  Declar." 

«  Fournel,  p.  104;  Papon,  "Rec.  d'Arrets,"  18,  1;  22,  13;  "Arr^tde  1572." 
Very  old  jurisprudence,  says  Fournel. 

^  Criticism  of  the  contrary  opinion  in  Baret,  p.  39.  —  Switzerland,  Eng- 
land: proof  of  the  paternity  by  means  of  the  oath  of  the  mother,  Huber,  IV, 
536. 

8  Bacquet.  "Dr.  de  Batardise,"  I,  1,  2. 

*  Particular  systems  on  the  subject  of  proof,  cf.  Baret,  p.  21:  (a)  the  dec- 
laration of  the  woman  is  a  proof  of  paternity;  (b)  it  is  a  semi-proof;  (c)  she 
gives  proof,  but  only  as  to  a  choice  between  several  men  who  are  convicted  of 

210 


Topic  11  ]  CONCERNING    ILLEGITIMATE    CHILDREN  [§  l'^4 

the  woman  or  the  child,  the  latter  had  the  right  to  demand  the 
maintenance  which  the  law  gave  him  from  the  father;  ^  the  girl 
who  was  seduced  was  herself  awarded  damages  on  the  theory 
that  marriage  was  reputed  to  have  been  promised  her.^ 

§  174.  Revolutionary  Law.^  —  The  practice  which  we  have  just 
described  is  reputed  to  have  given  rise  to  the  most  scandalous 
litigations  and  the  most  arbitrary  judgments.  In  the  preparatory 
work  for  the  Civil  Code,  Bigot-Preameneu  sums  up  the  criticisms 
to  which  it  had  been  subjected :  ^  in  this  sage  man's  phrase  "  the 
man  whose  hair  had  grown  gray  in  the  exercise  of  all  the  virtues 
was  not  safe  from  the  attacks  of  a  brazen  woman."  ^  The  Revo- 
lution put  an  end  to  this  extortion  by  only  admitting  as  proof 
of  natural  paternity  voluntary  recognition  (or  the  possession  of 
status);  all  judicial  investigation  was  forbidden  (Law  of  the 
11th  Brumaire,  year  11).^    But  by  way  of  a  sort  of  set-off  it 

having  been  with  her;  (d)  conviction  of  all  the  men  who  went  with  the  woman 
at  the  time  of  the  conception:  Poullain  du  Pare.  "Principes  du  Dr.  Fr. "; 
VIII,  110,  166;  "  Anc,"  Denisart,  see  "Grossesse  ;  Huber,  IV,  536.  Add  to 
this,  opinion  according  to  wliich  a  decision  is  arrived  at  based  upon  physical 
resemblance.  For  a  long  time  the  maid-servant  who  had  become  enceinte 
in  the  house  of  her  master  was  reputed  to  be  pregnant  owing  to  Mm;  but  the 
jurisprudence  of  the  eighteenth  century  abandons  this  presumption:  Fournel, 
p.  131;  Guyot,  see  "Fornication." 

^  Coquille,  "Quest.,"  29;  Denisart,  see  "Batard,"  30  et  seq.:  maintenance 
and  education,  a  simple  marriage  portion,  apprenticeship  in  some  trade: 
Chardon,  "Tr.  des  Trois  Puissances,"  no.  12;  "Arr.,"  June  18,  1607,  com- 
pelling a  rich  burgher  to  have  a  higher-class  trade  taught  to  his  illegitimate 
sons. 

2  Fournel,  p.  5.  —  Otherwise,  the  common  opinion,  which  sees  in  seduction 
a  tort.  —  Historically,  this  last  opinion  is  more  correct,  for  the  action  based 
upon  a  declaration  of  paternity  that  can  be  brought  by  the  father  or  the 
guardian  of  the  girl  seems  like  a  transformation  of  the  right  of  the  parents 
against  the  abductor  of  their  daughter  (Frankish  period).  But  Fournel 
gives  expression  to  the  modern  point  of  view  {cj.  existing  jurisprudence, 
which  gives  damages  to  girls  who  are  seduced).  As  to  existing  theories 
(tort,  parentage),  cJ.  Dupre  La  Tour,  p.  47. 

3  Robiquet,  "La  R6vol.  Fr.,"  July  14,  1891;  Sagnac,  pp.  317,  357. 

*  Celebrated  speech  of  Servan  in  1770  (at  Grenoble).  Let  us  notice,  how- 
ever, that  neither  Fournel  nor  the  writers  of  the  eighteenth  century  make 
any  allusion  to  these  abuses.  There  are  more  illegitimate  children,  but 
fewer  abortions  and  cases  of  infanticide  in  countries  where  to-day  an  in- 
vestigation of  paternity  is  admitted. 

*  Feiiet,  X,  154,  71;  cf.  L.  Faucher's  estimate  as  regards  England:  Glassoji, 
VI,  291  (Laws  of  1835,  1872,  1875). 

8  Arts.  1,  8,  10, 11,  12,  13.  See  in  Baret,  op.  cit.,  p.  55  et  seq.,  an  analysis  of 
this  confused  legislation  and  of  the  jurisprudence  upon  this  point.  —  (A)  In 
order  to  obtain  maintenance  the  illegitimate  child  can  prove  his  filiation  by 
all  the  means  which  were  formerly  made  use  of,  exceptijig  an  investigation  of 
paternity.  The  possession  of  status  is  admitted  only  if  the  parents  are  dead. 
—  (B)  Same  rule  for  the  claim  of  rights  of  inheritance  if  the  inheritance  opened 
after  the  14th  of  July,  1789,  and  before  the  12th  Brumaire,  year  II;  if  it 
opened  after  this  date,  then  recourse  is  had  to  the  Civil  Code.  The  retroac- 
tiveness  of  the  Law  of  Brumaire,  year  II,  was  abolished  by  the  Decree  of  the 

211 


§  174]  THE   FAMILY  [Chap.  I 

ameliorated  the  condition  of  natural  children  by  giving  them 
the  same  rights  of  inheritance  as  legitimate  children  had.^  This 
was  to  go  in  an  exactly  opposite  direction  to  that  of  the  Old  Re- 
gime, under  which  natural  children  could  easily  find  their  fathers, 
'but  gained  little  thereby,  because  they  had  no  rights  of  inherit- 
ance. The  Revolution  gave  them  these  rights,^  only  it  imposed 
upon  their  attainment  conditions  which  are  so  difficult  of  fulfil- 
ment that  very  few  of  them  succeeded  in  benefiting  by  the  re- 
form. The  forfeitures  which  formerly  affected  natural  children 
were  no  longer  considered  as  a  punishment  inflicted  on  the  chil- 
dren because  of  their  parents'  fault.  In  the  eighteenth  century 
they  were  justified  by  reasons  of  social  interest;  thus,  the  Advo- 
cate-General Segnier  said  in  1779:  "It  was  recognized  that  the 
strongest  brake  on  illicit  unions  was  to  punish  the  children  who 
were  the  fruit  of  them."  These  were  utilitarian  considerations, 
which  the  legislator  of  the  time  of  the  Revolution  did  not  take 
into  account,  because  he  clung  by  preference  to  the  theories  of 
natural  right  and  to  the  humanitarian  ideas  so  much  in  vogue  at 
that  time;  legitimacy  of  birth  seemed  to  confer  privileges  as  little 
justified  as  those  of  the  nobility;  he  wanted  to  abolish  them, 
and  to  give  the  natural  child  of  whom  religious  and  aristocratic 
prejudices  had  made  a  sort  of  pariah  of  the  family  the  same  rights 
as  his  brothers;  as  he  was  not  guilty  of  any  wrong,  it  seemed  in- 
iquitous to  punish  him.  On  the  other  hand,  motives  of  policy  pre- 
vailed at  the  time  of  the  drawing  up  of  the  Civil  Code;  natural 
children  were  sacrificed  with  a  view  to  the  fostering  of  marriage: 
the  investigation  of  paternity  was  prohibited,  as  it  had  been  under 
the  Revolution  (Art.  340) ;  ^  at  the  same  time,  the  rights  of  nat- 
ural children  were  almost  as  limited  as  they  were  in  the  old  juris- 

3d  Vend.,  year  IV,  afterwards  by  the  Law  of  the  15th  Therm.,  year  IV. 
Cf.  Decree  of  the  26th  Vend.,  year  IV.  There  was  no  distinction  made  between 
ordinary  illegitimate  children  and  those  born  of  an  adulteress  or  of  an  in- 
cestuous union. 

1  D.,  June  4,  1793;  Nov.  2d,  1793  (or  12  Brum.,  year  II);  Sirey,  "Cod. 
Civ.  Interm. " ;  Table,  see  "Enfant."  Not  only  with  regard  to  the  possessions 
of  their  father  and  mother,  but  also  with  regard  to  those  of  collaterals.  As 
to  children  born  of  an  adulteress  or  an  incestuous  union,  they  were  also  recog- 
nized as  having  a  right  of  inheritance,  but  a  lesser  one;  they  had  one-third 
of  the  share  of  a  legitimate  child:  Civil  Code,  757.  —  Analogous  rules  in  the 
legislation  of  Joseph  II:  Koenigswarter,  p.  62. 

2  Cambacerbs:  "Individuals  cannot  be  victims  of  the  faults  of  their  father. 
Disinheritance  is  the  penalty  for  great  crimes;  has  the  child  who  is  bom 
committed  any?  And  if  marriage  is  a  valuable  institution,  its  sway  can- 
not be  extended  to  include  the  destruction  of  man  and  of  the  rights  of 
citizens." 

3  It  was  the  same  in  the  Projected  Code  of  the  Convention,  I,  4,  12. 

212 


Topic  ll]  CONCERNING   ILLEGITIMATE   CHILDREN  [§  175 

prudence.  This  rather  inhuman  combination,  wherein  only  the 
harshness  of  the  intervening  law  was  given  a  place,  is  not  the  last 
word  in  legislation.  For  more  than  thirty  years  sharp  criticisms 
have  been  directed  against  it,^  and  the  system  of  the  Civil  Code  is 
far  from  having  pervaded  the  majority  of  foreign  legislations; 
these  latter  have  remained  ordinarily  at  the  former  rule,  which 
permitted  the  investigation  of  the  paternity.^ 

§  175.  Legitimation,  which  was  long  unknown  to  the  Roman 
law,  owed  its  origin  to  Christian  ideas;  from  the  day  when  con- 
cubinage was  looked  upon  as  a  wrong,  means  of  amending  it 
in  the  interests  of  the  children  ^  were  devised.  Constantine  and 
his  successors  created  of  it  a  privilege  which  was  only  applicable 
to  "liberi  naturales"  (issue  of  concubinage).  These  provisions 
passed  into  the  canon  law,  which  extended  the  Roman  institution 
to  all  legitimate  children,  with  the  exception  of  those  whose 
parents  could  not  have  married  at  the  time  of  the  conception  * 
(born  of  an  incestuous  ^  or  adulterous  ®  union).  Although  it  ad- 
mitted two  sorts  of  legitimation,  these  virtually  were  only  one, 
that  is,  legitimation  by  means  of  subsequent  marriage;  this  was 
still  accomplished  in  the  thirteenth  century  in  conformity  with  a 
rite  of  adoption,  or  one  analogous  to  those  of  adoption,  by  the 
placing  of  the  children  under  the  "pallium"  with  which  the  spouses 
are  covered  at  the  time  of  the  celebration  of  marriage  according 
to  the  Gallican  liturgy.^    For  a  long  time  ignored  in  France,  as  in 

1  Acollas,  "L'Enfant  ne  hors  Mar.,"  1865;  "Le  Dr.  de  I'Enfant,"  1885; 
Jacquier,  "These,"  1873;  Lacointa,  "Acad.  L6g.  Toul.,"  23,  316;  Thuillie, 
"La  Femme,"  1885. 

2  Dupre  la  Tour,  "Th^se,"  1900;  De  la  Grasserie,  "Rech.  de  la  Pater. 
Natur.,"  1895.  In  the  existing  law  it  is  possible  to  distinguish  between  two 
principal  systems,  —  the  system  of  paternity  and  the  system  of  maternity,  — 
not  counting  mixed  systems  and  the  variations  of  the  two  former :  Starcke, 
"La  Famille,"  p.  249. 

*  Girard,  "Manuel,"  p.  180.  —  As  to  legitimization  by  will,  c/.  post,  "Brachy- 
logus,"  "Appointment  of  an  Heir;"  "Nov.,"  74,  117.  The  "Siete  Part.," 
IV,  15,  admit  of  several  other  methods  of  legitimization:  an  offering  at  the 
court  of  the  king,  a  will,  a  charter  and  marriage. 

*  Cf.  Freisen,  §  74  and  authors  cited. 

'  Unless  the  impediments  due  to  relationship  could  be  raised  with  the 
assistance  of  dispensations.     See  also  Freisen,  ibid. 

'  Beaurnanoir,  18,  5. 

^  Cf.  the  Roman  "Flammeum"  (from  which  are  derived  "nubere,"  "nup- 
tia;").  Reply  of  Nicholas  I  to  the  Bulgarians:  Ahhe  Duchesne,  "Orig.  du 
Culte,"  p.  413;  Beaurnanoir,  18,  22;  Du  Cange,  see  "Pallium";  "Aoste,"  I, 
20,  31.  Loysel,  .58,  again  mentions  it.  From  which  the  name  "mantellati" 
given  to  these  children:  Pollock  and  M.,  II,  395"  Schroeder,  694.  —  "Amoil- 
ler6,"  "Aleaut^,"  meaning  legitimized  ("Jostice,  p.  36,  209,  212);  Schwarz, 
"De  Antiquo  Ritu  Liberos  Legitim.  per  Pallium,"  1747;  Michelct,  "Orig.," 
p.  10;  Grimm,  p.  403  (symbols  of  the  shoe,  the  cloak,  etc.).  —  CJ.  as  to  Bar- 

213 


§  175]  THE   FAMILY  [Chap.  I 

many  other  countries,  perhaps  because  the  Theodosian  Code 
made  no  mention  of  it/  perhaps  because  it  was  opposed  to  the 
spirit  of  Barbarian  law  as  to  unions  of  a  lower  order,  legitimation 
gradually  came  into  general  use,  thanks  to  the  jurisprudence  of 
the  ecclesiastical  tribunals;  the  Renaissance  of  Roman  law  was 
not  a  stranger  to  it;  a  Decretal  of  Alexander  III,  1172-80,  "tanta 
vis  est  matrimonii,"  ^  made  it  Christian  common  law.  According 
to  the  canon  legislation,  which  was  not  applied  without  resist- 
ance,^ legitimation  ought  to  produce  the  very  fullest  effects;  ^  it 

barian  law:  among  the  Lombards,  declaration  made  to  the  "Thinx"  with 
the  consent  of  the  legitimate  children:  "Roth.,"  155;  "Ass.  de  Jerus.," 
"C.  de  B.,"  178;  Loysel,  63. 

1  Loysel,  58,  and  Laitriere's  note ;  "L.  Rom.  Wis.,"  4,  6.  Cf.  "Roth.,"  155. 
—  The  "Conist.  de  Constantin,"  "Cod.  Just.,"  5,  27,  5,  is  contemplated  in 
Julian,  "Epit.,"  32,  3;  "Petrus,"  I,  41;  "Brachyl.,"  1,  9,  14  (legitimization 
by  marriage,  by  rescript  of  the  prince,  by  the  fact  that  one  has  been  appointed 
"ut  legitimus heres " :  Julian,  82,  10;  and,  finally,  by  the  fact  that  cohabita- 
tion with  the  mother  lasted  until  her  death:  Julian,  82,  12).  Yves  de  Chartres, 
"Dec,"  31,  32  {Fournier,  "R.Q.H.,"  1898,  p.  46.  The  "Schwabenspiegel," 
147,  378,  admits  of  it  contrary  to  the  general  practice  in  Germany,  where  it 
only  prevailed  after  the  sixteenth  century;  Koenigsioarter,  p.  42.  —  England: 
an  adoption,  deed  of  the  king,  and,  finally,  to  the  exclusion  of  every  other 
means,  act  of  Parhament:  Braclon,  I,  4:  no  legitimization  by  subsequent  mar- 
riage: Gla7iville,7,4:5;  "  Fleta,"  39,  4;  Statute  of  Merton,  1253,  c.  9;  Marnier, 
"Etabl.  de  Norm.,"  p.  174;  Pollock  and  Maitland,  II,  395;  Blackstone,  I,  16. 
Subsequent  marriage  does  not  produce  tins  effect  with  regard  to  children 
born  previously,  excepting  in  the  case  of  the  eldest  bastard  and  the  younger 
child  of  a  married  woman  (the  illegitimate  child  who  is  the  eldest  possesses  all 
his  life  the  paternal  inheritance  without  his  younger  brother  having  any 
claim  upon  it,  the  "fihus  mulieratus"  or  one  born  of  a  married  woman;  after 
his  death  the  latter  has  no  authority  to  act). 

2  Dig  X,  17,  "Qui  Filii  sint  Leg.,"  6  ("episcopo  Exoniensi").  Cf.  ibid.,  1; 
"Jostice,"  p.  209;  "L.  d.  Droiz,"  I,  no.  22.  Gratian  does  not  seem  to  have 
foreseen  the  question. 

3  Cf.  Loysel,  63;  Du  Plessis,  p.  530;  "L.  Feud.,"  II,  26,  10:  exclusion  from 
inheriting  fiefs.  "Lib.  Consuet.  Imp.  Rom.,"  c.  105.  At  Ferrara  they  inlierit 
only  with  the  consent  of  the  agnates.  At  Rome  they  take  but  one  fourth 
of  that  which  they  would  have  taken  had  they  been  legitimate:  "Stat.,"  1, 
84.  —  In  England  the  barons  opposed  the  clericals  who  wished  to  introduce 
legitimization  by  subsequent  marriage:  "Nolumus  leges  Angliae  mutari," 
they  say  (Statute  of  Merton,  1253,  9;  Bracton,  "Note  Book,"  I,  104);  the 
true  reason  of  their  opposition  was  owing  to  the  injury  which  they  would 
sustain  from  the  decrease  of  the  number  of  bastards;  in  fact,  "the  more 
bastards,  the  more  escheats."  Grosseteste  affirmed  that  the  old  English 
custom  was  in  accord  with  the  canon  law;  Pollock  and  Maitland,  II,  395; 
Glasson,  III,  185. 

^  However,  we  must  not  go  so  far,  as  some  have  wished  to  do,  as  to  give 
marriage  a  retroactive  effect  that  goes  back  to  the  day  of  the  conception  (or 
even  to  the  day  of  the  birth) ;  the  fiction  of  a  sort  of  secret  marriage  which  is 
supposed  to  have  taken  place  at  that  time  is  a  contradiction  of  the  solution 
set  forth  by  Beaumanoir,  18,  24,  with  respect  to  the  right  of  primogeniture; 
the  children  born  of  a  marriage  previous  to  the  one  which  legitimizes  the 
illegitimate  child  have  the  right  of  primogeniture:  Bout.,  I,  95;  Le  Brun, 
"Success,"  I,  500;  Argou,  I,  80;  D'Agibesseau,  7,  438;  Boutaric,  "Inst.," 
I,  10,  13. 

214 


Topic  ll]  CONCERNING   ILLEGITEMATE   CHILDREN  [§  176 

ensued  as  of  right  by  virtue  of  marriage,  and  even  in  spite  of  the 
parents  and  in  spite  of  the  children/  provided  that  the  fihation 
was  certain.^ 

§  176.  Legitimation  by  Rescript  from  the  Prince  (letters  from 
the  king)  ^  had  less  effect  than  the  preceding  (legitimation  "ad 
honorem,"  but  not  "ad  successionem")  ^  and  was  scarcely  ap- 
plied excepting  in  cases  where  marriage  was  not  possible.^    Legiti- 

^  Dig.  X,  4,  17,  6.  But  no  previous  recognition  was  admitted,  as  is  the 
case  in  the  Civil  Code,  331.  According  to  the  Declaration  of  1639,  6,  and  the 
Edict  of  1697,  8,  marriage  "in  extremis"  did  not  legitimize. 

2  "Brautkinder"  (children  of  betrothed  persons)  in  Switzerland :  they 
are  ordinarily  legitimized  by  subsequent  marriage;  if  marriage  is  not  possible, 
for  example,  as  a  consequence  of  the  death  of  one  of  the  betrothed,  they  are 
treated  as  being  legitimate:  Huber,  IV,  538. 

^  The  pope,  the  emperor,  the  king  and  the  lords  competed  with  one 
another  for  the  right  to  legitimize  by  letters.  PhiUp  Augustus  had  the  pope 
(Innocent  III,  1201)  legitimize  the  illegitimate  children  which  he  had  had 
by  Agnes  de  Merami  {D.  Bouquet,  19,  406).  Louis  XIV  himself  legitimized 
his  own  children:  "Gr.  Cout.,"  1,  3  (p.  95);  "Jostice,"  p.  36;  "Ord.,"  XV, 
p.  28;  Isanibert,  Table,  see  "Legitimation";  Bacquet,  I,  190;  Viollet,  p.  475, 
cites  Chaillot,  "Priv.  du  Clerge,"  1866,  p.  32  (sons  of  priests).  After  the 
end  of  the  thirteenth  century  letters  of  legitimization  had  to  be  registered 
with  Parliament  and  at  the  Court  of  Counts,  wliich  allowed  the  king  to  cancel 
the  effect  of  every  legitimization  which  took  place  outside  of  the  domains  of 
the  lords.  The  Ordinances  of  1372,  1498  and  1687  sanctioned  this  exclusive 
right  of  the  king  (Isambert,  see  372);  Loysel,  62.  As  a  very  great  excep- 
tion, the  right  of  legitimizing  was  granted  to  the  Due  de  Berry  in  his  capacity 
of  Lieutenant  of  the  King,  1380.  The  canonists  maintained  that  the  pope 
legitimized  "ad  spiritualia"  and,  as  a  consequence,  "ad  temporalia":  Hos- 
tiensis,  p.  319;  Decretal  "Per  Venerabilem"  (Dig.  X,  4,  17,  13);  D.  Bouquet, 
19,  406;  Pithou,  "Lib.  de  I'Eglise  Gall.,"  21:  the  pope  cannot  legitimize  so 
as  to  make  one  capable  of  inheriting,  but  he  can  do  so  in  order  to  enable  one 
to  take  a  benefice.  As  to  previous  jurisprudence  (ParUament  verifying  the 
bulls  of  the  legates  with  reservations  on  the  subject  of  the  right  of  legituuiz- 
ing,  fifteenth  and  sixteenth  centuries)  cf.  Viollet,  p.  476;  Isambert,  X,  388; 
Beaumanoir,  18,  22;  Ficker,  II,  §  256.  —  The  emperors  settled  in  their  re- 
scripts the  rights  of  persons  legitimized:  Schilter,  "Jus  Feud.  Alleman.,"  c. 
40,  §  4.  After  the  time  of  Charles  VI,  legitimization  by  the  Counts  Palatine 
takes  place.  Also  we  find  legitimization  by  rescript  of  the  doctors  by  virtue 
of  an  imperial  delegation  of  authority.  —  Flemish  law:  Britz,  etc.,  "Siete 
Part.,"  IV,  15,  4. 

*  Loysel,  63  (bibl.);  "Schwabenspiegel,"  377;  Pasquier,  "Inst.,"  p.  89; 
Ragueau,  see  "Lettres."  Sons  born  of  an  incestuous  or  adulterous  union 
legitimized  by  letters  of  the  prince  became  capable  of  receiving  permanent 
gifts  from  their  fathers  and  mothers  (and  not  merely  gifts  by  way  of  mainte- 
nance) .  The  right  of  inheritance  belonged  even  to  persons  who  had  been  legiti- 
mized in  this  way,  in  case  there  were  an  express  clause  and  the  consent  of  the 
near  relatives  were  given  (which  was  something  that  was  not  customary, 
say  Pothier  and  Boutaric,  "In.st.,"  1,  10,  13).  They  might  receive  univer- 
sal legacies.  The  name  and  the  title  of  the  father  were  transmitted  to 
them:  "Schwabenspiegel,"  47.  They  had  public  rights  and  a  right  to 
hold  office.  —  Adoption  of  illegitimate  children  admitted  in  theory,  but  not 
applied. — Legitimization  before  notary  at    Bologna  and   Naples:    Pertile, 

*  The  Ordinances  of  Henry  IV  compelled  the  bastards  of  nobles  to  furnish 
themselves  with  letters  of  nobility  in  order  to  retain  the  names  and  titles  of 
their  fathers  (March,  1600,  Art.  26):  Isambert,  Table,  see  "Noblesse."     These 

215 


§  176]  THE    FAMILY  [Chap.  I 

mation  by  means  of  subsequent  marriage  was  maintained  by 
means  of  custom  under  the  Revolution;  ^  it  was  otherwise  as 
regards  legitimation  by  rescript  of  the  prince,  which  the  change 
in  constitution  impliedly  abolished,  and  which  the  Civil  Code  has 
not  re-enacted.^ 

letters  had  to  be  based  upon  some  very  great  regard  for  their  merits  or  those 
of  their  father. 

1  Merlin,  "Rep.,"  17,  15  (Act  of  the  11th  Flor.,  year  II). 

2  Contra,  Itahan  Civil  Code,  198. 


216 


Topic  12]  ADOPTION  [§  177 


Topic  12.     Adoption 

§§  177-179.  Adoption.  I  §  181.  Affiliation,   or  Foster-Brother- 

§  180.  Fraternization.  |  hood. 

§  177.  Adoption  is  an  archaic  institution  serving  the  purpose 
of  gathering  recruits  for  the  family;  he  who  has  no  children  cre- 
ates for  himself  an  artificial  posterity  by  adopting  the  children  of 
another;  ancestor  worship  makes  it  a  religious  duty  for  him;  he 
may  be  driven  to  it  by  the  interests  of  his  own  family,  or  by  his 
own  personal  interests.  The  Germanic  law  recognizes  this  prac- 
tice, as  did  the  majority  of  the  primitive  legislations.  It  was  car- 
ried out  in  various  ways:  The  person  adopting  armed  the  person 
adopted,^  cut  his  hair  and  his  beard,  or  was  satisfied  with  touch- 
ing them,^  as  a  father  would  have  done  to  his  son  at  the  time  of 
his  coming  of  age;  the  person  adopting  made  the  person  adopted 
sit  down  on  his  seat,  took  him  upon  his  knees,^  sometimes  clothed 
him  with  his  own  garments,  with  the  object  of  giving  a  rough  imi- 
tation of  birth.^  Under  the  influence  of  the  Roman  practice, 
adoption  also  took  place  "per  cartam";^  the  formulae  assumed 
that  the  person  adopting  had  no  posterity  ("  peccatis  meis  facien- 
tibus  orbatus  sum  a  filiis");  he  asks  the  adopted  person  to  clothe 
him,  to  look  after  his  affairs;  ^  in  return  he  promises  him  all  his 
inheritance. 

1  Ostrogoths,  Cassiod.,  "Var.,"  4,  2  (Theodoric  adopts  the  king  of  the 
Herules  "per  arma");  8,  1  and  9;  P.  Diac,  I,  23,  24.  Lombards:  adoption 
by  "Gairethinx":  Pappenheim,  "Launegild,"  p.  65;  Franks:  Gontran  and 
Childebert:  Greg.  Tours,  5,  17;  7,  33;  Aimoin,  3,  68. 

2  Lombards:  P.  Diac,  6,  53;  4,  30  (the  patrician  Gregory  and  the  son  of 
the  Due  de  Frioul):  Aimoin,  1,  20. 

3  Scandinavians:  Gulath.,  58;  Grimm,  p.  155.  The  adopted  and  the 
adopter  put  on  the  same  shoe. 

*  Grimm,  p.  463;  Michelet,  "Orig.,"  p.  10.  Juno  pretends  to  be  pregnant 
from  Hercules;  same  custom  among  the  barbarians,  says  Diodorus  of 
Sicily.  At  the  time  of  the  First  Crusade  the  Prince  of  Edesse  and  his  wife 
in  order  to  adopt  Baudoin  passed  him  under  their  shirts.  Aragon,  id.  Pidal, 
"Infantes  de  Lara,"  1896,  p.  30,  no.  3.  Adoption  and  legitimation  under 
the  cloak  are  frequent.  As  to  the  effects  of  these  barbarian  adoptions,  cf. 
Pertile,  III,  394. 

*  Roziere,  "Form.,"  115  et  seq.;  Marculfe,  2,  13;  Lindenbrog,  58,  59; 
Du  Cange,  see  "Adoptio." 

^  Our  old  authors  maintain  that  he  who  adopted  amortized  himself,  that 
is  to  say,  he  gave  his  property  on  condition  of  being  supported  until  his  death : 
Ragueau,  see  "Admortir,"  "Reims,"  237;  R.  Schmidt,  "Affatomie,"  p.  32, 
seems  to  us  to  have  clearly  established  that  the  appointment  of  an  heir  did 

217 


§  178]  THE   FAMILY  [Chap.  I 

§  178.  The  Same.  —  Having  at  an  early  period  fallen  into  dis- 
use/ which  came  about  owing  to  the  evolution  of  the  family/ 
adoption  only  appeared  to  our  old  jurisconsults  as  a  Roman 
institution  which  had  been  rejected  by  the  Customary  law/  It 
was  not  even  in  use  in  countries  of  written  law.^  Sometimes, 
however,  but  in  a  very  exceptional  manner,  adoption  took  place 
by  means  of  letters  of  the  prince;  ^  in  this  case  it  did  not  confer 
the  paternal  power,  did  not  even  make  a  lawful  heir  of  the  person 
adopted,  but  only  an  heir  by  reason  of  a  universal  gift  or  universal 
legacy/  This  sort  of  adoption  is  similar  to  the  appointment  of  a 
person  charged  with  bearing  the  name  and  the  arms  of  the  donor 
or  the  testator/ 

§  179.  The  Same.  —  Under  the  Revolution  adoption  entered 
into  the  law  without  any  necessity  of  its  doing  so,  by  being  called 
up  from  classical  antiquity.  The  Legislative  Assembly  decreed 
that  its  committee  on  legislation  should  include  it  in  its  general 
scheme  of  civil  laws.     The  Convention  set  the  example  for  the 

not  carry  with  it  adoption.     To  the  contrary,  see  Glasson  and  the  majority 
of  the  authors. 

1  "Arbre  des  Batailles,"  c.  CX.,  "Lille,"  16,  4:  Adoption  does  not  take 
place.  CJ.  spiritual  paternity  (godfather  and  godmother):  effects  according 
to  the  canon  law;  Du  Cange,  see  "Adoptari,"  "Filiolus,"  "Patrinus."  — 
"Atalikat"  in  the  Caucasus:  Kovalewsky,  "Cout.  Contemp.,"  p.  190.  Cf. 
feudal  customs  (the  young  gentleman  becomes  a  page  or  an  equerry  in  the 
household  of  liis  father's  lord):  L.  Gautier,  "Chevalerie." 

2  Or,  rather,  the  disintegration  of  the  family.  And,  as  the  families  of 
the  princes  escaped  this  law,  adoption  was  preserved  in  them  or  else  reap- 
peared in  them  all  the  more  easily:  e.  g.  in  939,  1277,  and  1282.  From  the 
Frankish  period  on  the  formula  show  us  the  hostility  felt  by  the  family 
against  adopted  children;  the  latter,  in  fact,  are  enemies  who  deprive  them  of 
the  family  possessions. 

^  Bucherellus,  "Inst.,"  1,  11  (and  authors  cited);  Dumoulin,  on  "Paris," 
2,  2,  10;  Chopin,  on  "Anjou,"  3,  3,  2;  Launay,  "Inst.,"  2,  14;  Boutaric, 
"Inst.,"  1,  11;  Serres,  1,  11;  Merlin,  see  Ferricre.  Adoption  of  orphans  by 
the  directors  of  the  hospitals  of  Lyons:  "L.  Pat.,"  Nov.,  1672;  Henrys,  6,  5, 
35.  The  "nutritor"  of  the  barbarian  period  who  takes  a  foundling  can  treat 
him  like  his  own  son;  he  then  becomes  a  sort  of  adoptive  father:  cf.  "Siete 
Part.,"  IV,  20. 

*  Rare  in  Italy:  Fertile,  III,  396;  Salvioli,  §  205.  Where  it  does  take 
place  ("apud  judices  curiae,"  before  notaries),  it  has  only  incomplete  re- 
sults; thus  the  adopted  son  does  not  succeed  to  fiefs  and  personal  belongings. 
It  is  even  a  question  as  to  whether  he  acquires  the  title  of  his  adopted  father. 
Spain:  the  "Siete  Part.,"  IV,  16,  include  a  title  on  the  "Porfijamiento,"  "F. 
Real,"  IV,  22. 

*  J.  Faher,  "Inst.,"  "De  Adopt."  (Rights  of  the  pope  and  the  emperor). 

^  The  adopted  son  therefore  cannot  exercise  the  right  of  repurchasing  by 
a  person  of  the  same  lineage. 

7  "D.,  ad  Sc.  Treb.,"  63,  18;  "de  don.,"  19;  "de  condit.,"  108;  Ferriere, 
see  "Institution."  Necessity  of  letters  patent  from  the  king,  if  the  person 
appointed  gives  up  his  name  to  take  that  of  the  donor.  He  owes  in  every 
case  the  transfer  tax,  which  is  not  paid  in  the  case  of  an  inheritance  in  the 
direct  line:  Lebrun,  "Succ,"  8,  3;  Bouvot,  I,  111. 

218 


Topic  12]  ADOPTION  [§  181 

details;  the  27th  of  January,  1793,  it  adopted  in  the  name  of  the 
Fatherland  the  daughter  of  iMichel  Lepelletier.  If  this  was  merely 
a  manifestation  of  policy,  without  any  civil  effects,  it  surely 
showed  at  least  the  state  of  mind.  Private  adoption  was  thence- 
forth practised  without  having  been  legally  regulated ;  the  require- 
ments were  limited  to  the  drawing  up  of  an  authenticated  deed. 
By  this  means  alone,  without  any  exact  conditions,  the  person 
adopted  acquired  the  rights  of  a  legitimate  son.  Adoption  was 
irrevocable,  excepting  for  the  right  of  the  minor  to  renounce  it.^ 

§  180.  Fraternization.^  —  During  the  barbarian  period  and  in 
the  early  stages  of  Feudalism,  the  usage  of  sealing  friendship  by 
the  aid  of  oaths  and  solemnities  (like  the  mingling  of  blood),  which 
transformed  it  into  a  fictitious  brotherhood,  carrying  with  it 
strict  duties  of  mutual  protection,  and  even  a  true  joint  ownership 
of  possessions,  is  widespread.  Thence  arose  the  brotherhood  of 
arms,  of  knighthood,  which,  differing  from  the  preceding,  did  not 
create  any  tie  of  artificial  relationship.^ 

§  181.  Affiliation,^  or  Foster-Brotherhood^  ("unio"  or  "parifi- 
catio  prolium").^  In  the  case  of  a  second  marriage  the  stipula- 
tion is  made  in  the  marriage  contract  that  the  children  of  the  first 
marriage  and  those  of  the  second  marriage  shall  have  the  right  to 
inherit  from  the  two  spouses,  and  to  their  share  in  the  joint  prop- 
erty. This  practice  had  the  advantage  of  keeping  the  family  in- 
heritance "in  statu  quo";  it  dispensed  with  partition,  which  might 
cause  a  great  injury  to  the  "parens  binubus"  wdthout  profiting 
the  children.    In  this  there  was  seen  a  sort  of  adoption  "^  created 

1  Decree  of  the  16th  Frim.,  year  III;  25th  Germ.,  year  XI,  cf.  Sagnac,  p.  315 
(projected  Civil  Code).  In  the  Civil  Code,  Art.  343  et  seq.,  we  find  adop- 
tion and  official  guardianship. 

2  Du  Cange,  "Fr^res  d'Armes,"  1668;  Kohler,  "Z.  R.  W.,"  1884  ("Kunstl. 
Verwandtschaft");  Inama-Sternegg,  "Deutsche  Wirthschaftsg.,"  I.  261;  Ta- 
massia,  "L'Affratellamento,"  1886;  Gauticr,  "Chevalerie,"  pnssitn;  Finch., 
"Orig.  de  I'Anc.  France,"  II,  471  (1893);  Post,  "Grundriss  d.  Ethnol.  Jurisp.," 
I,  93;  Salvioli,  §  205;  "Consortes  et  ColUberti,"  p.  9;  Melusine,  III,  402; 
IV,  118,  2,59;  V,  36,  194,  284;  VII,  4,  1.34,  1.56. 

^  Communities  among  brothers  (Italy)  do  not  seem  to  have  any  connec- 
tion with  the  fraternization  of  barbarian  times:  Lattes,  p.  267, 

*  Du  Cange,  see  liagueau. 

^  Du  Cange,  see  " Afifrayramentum "  (associations  of  all  property);  Saint- 
onge,  1;  iSaint-Amand  in  Flanders,  26. 

"  "Einkindschaft"  of  the  Germans;  Watstein,  "De  Unione  ProHum," 
1709;  Gerher,  id.,  1844;  flin^eZynann,  "Einkindschaft,"  1825;  Mittelstein,  id., 
1886;  Mayer,  id.,  1900;  Schroeder,  p.  739;  Ficker,  "Erbenf.,"  Ill,  150;  Heusler, 
§  164.  — Examples  in  Loersch  and  Schroeder,  2d  ed.,  nos.  178,  223,  225,  229. 
Thirteenth  century:  Act  of  1275  (Austria),  1296,  etc. 

'  The  one  who  becomes  an  associate  has  no  rights  over  the  person  or  the 
possession  of  the  one  who  makes  him  an  associate:  Lebrun,  "Succ,"  3,  3. 

219 


§  181]  THE    FAMILY  [Chap.  I 

with  the  view  to  equaUty  between  the  children;  but  foster-brother- 
hood does  not  change  the  civil  condition  of  the  children,  and  in 
establishing  it  so  little  account  was  taken  of  equality  that  the 
most  ancient  documents  of  this  sort  contain  clauses  dealing  with 
the  reference  legacy. 


220 


Topic  13]  CONDITION   OF  WOMEN  [§  182 


Topic  13.     Condition  of  Women 


§  182.  In  the  Old  Germanic  Law. 
I  183.  In  Public  Law. 
§  184.  Changes    in    the    Station    of 
Women. 


§  185.  German  and  ItaUan  Law. 
§  186.  In  France. 

§§  187,  188.  Velleianum  Decree  of  the 
Senate. 


§  182.  In  the  Old  Germanic  Law  ^  the  constitution  of  the 
family  resulted  in  placing  the  woman  under  a  perpetual  guardian- 
ship :  "  Nulli  mulieri  liceat  in  suae  potestatis  arbitrio,  id  est  selb- 
mundia  vivere,  nisi  semper  sub  potestate  viri  aut  potestate  curtis 
regiae  debeat  permanere."  This  remarkable  formula  of  the  Edict 
of  Rothar.,  205,  expresses  the  primitive  condition  of  the  Germanic 
woman. ^  As  a  daughter  she  found  herself  under  the  authority  of 
her  father,  or,  if  she  had  no  father,  under  that  of  his  nearest  male 
descendant;  ^  as  a  married  woman,  under  the  authority  of  her 
husband ;  ^  as  a  widow,  under  the  power  of  her  own  children  or 
the  relatives  of  her  husband,^  when  she  did  not  leave  the  family 

1  An  opinion  contrary  to  the  one  which  we  set  forth  in  the  text  gives  the 
Germanic  woman  a  true  independence,  at  least  during  primitive  times,  either 
because  it  was  necessary  to  see  in  this  a  survival  of  the  matriarchate  or  because 
the  roughness  of  customs  made  of  her  almost  a  man.  Cf.  post,  "Power  of 
the  Husband,"  "Inheritance."  This  view  is  like  the  one,  formerly  very 
widespread,  which  made  the  Germanic  woman  the  model  of  all  the  virtues, 
the  prototype  of  the  Christian  woman.  On  this  question  cf.  "Acad.  L6g. 
Toulouse,"  1900  ("Le  Mariage  par  Achat");  Meynial,  Lefebvre,  op.  cit.; 
Tacitus,  "Germ.,"  8:  "inesse  feminis  aliquid  sanctum";  allusion  to  the 
magical  power  attributed  to  Velleda,  etc. 

2  Cf.  "L.  Saxon.,"  43  et  seq.,  which  organizes  the  guardianship  of  widows 
and  of  daughters  for  the  benefit  of  relatives  ("proximus  paterni  generis"), 
without  making  any  allusion  to  the  guardianship  of  the  State;  the  latter  is, 
in  fact,  of  later  date:  "Thuring.,"  47;  "Fris.,"  9,  11;  "Alam.,"  54;  "Bai.," 
8,  8;  "Burg.,"  12,  36;  "Wis.,"  3,  3,  and  3,  4,  2;  id.  in  Scandinavian  law; 
Dareste,  "Etudes,"  p.  287  et  seq.  Heusler,  I,  118,  and  II,  484,  interprets  the 
Lombard  Edict  in  this  sense,  that  the  woman  has  the  power  of  claiming  the 
royal  "mundium";  she  is  not  compelled  to  do  so,  she  has  no  official  guardian, 
but  she  cannot  alienate  or  give  her  movables  or  her  immovables  without  the 
assistance  of  a  guardian.  Even  admitting  this  explanation,  which  does  not 
agree  very  well  with  the  texts,  we  can  eventually  recognize  the  fact  that  it  is 
almost  impossible  for  the  woman  to  dispense  with  a  guardian:  "Roth.,"  388. 

3  For  example,  of  her  brothers:  "Wis.,"  1,  8,  9;  "Roth.,"  160,  etc. 

*  Unless  the  husband  shall  have  conferred  the  "mundium"  upon  others, 
examples  of  which  are  found  in  the  Italian  deeds  of  the  eleventh  century. 
Certain  statutes  confer  this  power  upon  the  husband.  We  even  find  a  case 
of  giving  the  "mundium"  to  the  bearer  (of  the  deed  of  grant)  in  1036:  Fertile, 
III,  235;  "Roth.,"  205,  182.  Cf.  "puolla  in  verbo  regis,"  "Rib.,"  35,  3. 
Marriages  "jussione  regia,"  p.  1037;  D.  Bouquet,  III,  306;  Viollet,  262; 
Glasson,  III,  19. 

*  Even  minors:  "Liut.,"  101;  "Antich.  Ital.,"  IV,  785  (in 916);  Simonnet, 
p.  133. 

221 


§  182]  THE   F.UIILY  [Chap.  I 

of  the  latter,  and  under  that  of  her  own  relatives  if,  in  an  excep- 
tional case,  she  went  back  to  her  own  family.^  If  she  had  no  rela- 
tives she  was  under  the  "mundiuin"  of  the  king,  in  the  same  way 
as  an  orphan.^  The  woman,  in  fact,  because  of  her  physical  weak- 
ness,^ could  not  be  the  head  of  the  family;  she  found  herself  to  be 
dependent  upon  the  one  in  whose  house  she  lived;  upon  the  rela- 
tive who  wore  the  sword,  and  who  w^ould  draw  it,  if  necessary, 
to  defend  her  ("mulier  faidam  levare  non  potest");  upon  the  one 
who  alone  could  appear  in  the  judicial  assembly,*  and  whom  the 

'  In  the  Lombard  law  the  breaking  of  family  ties  is  not  complete  (perhaps 
by  an  extension  of  the  marriage  without  "mundium").  If  a  woman  alienates 
her  possessions  (immovables)  with  her  husband,  says  the  "Liut.,"  22  (in  721), 
two  or  three  near  relatives  (agnates)  are  summoned  and  the  woman  should 
declare  in  their  presence  and  in  the  presence  of  the  judge  that  she  freely  con- 
sents to  the  sale,  and  if  this  is  not  done  the  latter  will  be  void.  Rosin,  "  Form- 
vorschr.  f.  d.  Verausserung.  d.  Frauen,"  1880  ("Unters."  by  Gierke)  thinks 
that  the  "L."  29,  "Liut.,"  is  a  variation  and  an  extension  of  the  "L."  22  (any 
woman)  in  the  "Ben^vent."  Cf.  "Lib.  Pap.  Pipp.,"  34;  Wido,  8  (right  of 
a  wife  even  to  make  a  gift  with  her  husband):  Laites,  p.  180.  —  Analogous 
rules  elsewhere:  Viollet,  p.  290  {Dunois,  XI,  on  "Belgique  XIIP  siecle"); 
Loersch  and  Schr.,  "Urk.,"  1, 125;  "Cout.  de  Metz,"  II,  18. 

2  The  royal  "mundium"  is  here  especially  a  general  protection,  with  re- 
gard to  the  special  effects  that  are  connected  with  the  domestic  power.  The 
Church  recommends  that  kings  shall  defend  the  widow  and  the  orphan  ("Exo- 
dus," xxii,  22;  "Deuter.,"  xxvii,  19);  the  State  fulfills  this  duty.  In  the 
formula  appointing  a  count  it  is  said:  "  Ut  viduis  et  pupillis  maximus  defensor 
appereas"  (Marcidfe,  I,  8).  "Capit.  Bavarois,"  788,  c.  2:  "Ut  ecclesia,  viduae, 
orphani  vel  minus  potentes  pacem  rectam  habeant;"  a  penalty  of  60  "sol"  in 
case  the  peace  is  broken.  The  Judge  Ordinaries  are  recommended  to  examine 
actions  brought  by  the  widow  and  orphan  before  others.  Finally,  it  is  decided 
that  the  widow  shall  be  judged  if  she  so  wishes  by  the  king  or  the  Church  in 
preference  to  the  Judge  Ordinaries:  Beaumanoir,  10,  12;  cf.  11,  9.  This  is 
the  practical  side  of  the  maxim:  "To  the  king  belongs  the  custody  of  widows 
and  wards"  (fifteenth  century);  "Summa  Norm.,"  77;  "Olim,"  1, 169;  "Jos- 
tice,"  p.  218;  "Et.  de  Saint  Louis,"  I,  137;  P.  de  Fontaines,  360;  "L.  d. 
Droiz,"  no.  921.  The  conception  of  a  special  protection  due  by  the  State 
to  widows  and  orphans  is  found  once  more  in  our  existing  laws:  Law  of  Aug. 
16-24,  1790,  8,  3;  "Code  Proc.  Civ.,"  83;  Civil  Code,  2194;  Viollet,  p.  290; 
"Ord.,"  1315,  24,  prohibition  to  make  war  upon  a  minor  or  a  widow  who  has 
children. 

2  Tacitus,  13.  Heusler  is  wrong  in  objecting,  §  25,  that  to-day  the  woman 
is  as  weak,  weaker  even,  than  she  was  formerly,  and  that  at  the  same  time 
she  is  under  more  disability;  the  social  surroundings  are  no  longer  the  same; 
this  is  what  has  admitted  of  the  emancipation  of  woman  in  spite  of  her  weak- 
ness. I  do  not  think,  either,  that  one  can  say  with  Meynial,  "Le  Mar.  Ap.  les 
Inv.,"  p.  77,  that  "she  is  worth  a  man  in  war."  One  would  not  say  this 
with  regard  to  the  squaws  of  the  redskins,  in  spite  of  the  roughness  of  their 
life;  and  it  was  not  said  with  respect  to  the  Germanic  women.  The  Amazons 
have  always  been  an  exception.  Cf.  the  mj'thological  heroines  of  the  Sagas 
or  of  the  Germanic  epic  poems.  "Bai.,"  4,  29  (the  woman  fights  "per  auda- 
ciam cordis sui");  "Roth., "278;  "Liut.,"  141. 

^  In  these  military  assemblies  there  is  no  place  for  women.  Cf.,  however, 
the  Synod  of  Nantes,  c.  19  (participation  of  women  in  the  sittings  of  the 
Frankish  courts);  Laboulaye,  p.  443;  Greg.  Tours,  7,  8;  "Etabl.  de  Rouen," 
1,  155.  —  Post,  as  to  the  Frankish  period.  —  Cf.  "Roth.,"  203;  "Sachsensp.," 
1,43. 

222 


Topic  13]  CONDITION   OF  WOMEN  [§  183 

Germans  later  called  "  kriegerischer  Vormund."  ^  From  this 
there  resulted:  1st.  In  private  law,  the  incapacity  of  the  woman  to 
have  an  inheritance  of  her  own,^  and,  when  she  was  permitted  to 
have  it,  the  capacity  to  enjoy  it  and  to  administer  it,  and  espe- 
cially to  dispose  of  immovables.  ^  2d.  In  public  law,  the  absence 
of  all  political  rights;  the  woman  only  being  "pars  domus,"  does 
not  count  in  the  eyes  of  the  State. 

§  183.  In  Public  Law  *  the  incapacity  of  the  woman  has  re- 
mained through  all  the  old  law,  and  even  until  our  own  time. 
We  do  not  even  take  the  trouble  to  justify  it.  Thus,  it  is  ad- 
mitted that  she  is  not  eligible  to  public  office;  ^  she  cannot  be 
barrister  or  solicitor,  says  Boutillier,  for  the  same  reason  as  Cal- 
purnia,^  but  this  reason  is  only  invoked  because  of  pedantry;  the 

1  To  him  alone  belongs  the  power  of  claiming  the  "wergeld"  from  the 
murderer  of  the  woman.  As  to  the  price  of  the  "  wergeld  "  of  women  cf.  Brun- 
ner,  II,  614;  "Wis.,"  8,  4,  16;  the  half  of  a  man.  Id.,  Arabs,  Alamans  ("Pac- 
tus,"  II,  39  et  seq.;  "Lex,"  46  et  seq.,  88),  Bavarians  (IV,  29),  it  is  double 
that  of  men  "dum  femina  cum  armis  se  defendere  nequiverit":  "Roth.," 
378,  etc.,  among  the  Franks,  and  treble  "wergeld"  is  admitted  for  the  woman 
who  is  capable  of  bearing  children:  "Sal.,"  24,  6;  "Rib.,"  12  et  seq.;  "Angl.," 
48;  "Sax.,"  15;  double  if  she  is  a  virgin.  From  this  there  cannot  be  drawn  any 
conclusions  on  the  subject  of  the  station  of  woman  in  general;  the  variations 
of  the  price  of  the  "wergeld"  are  connected  with  the  relative  value  of  women, 
with  the  necessity  for  a  higher  degree  of  protection  which  they  are  under: 
Grimm,  403;  Du  Plessis  de  Gr.,  "Th^se,"  87;  Viollet,  p.  289;  Laboulaye, 
p.  171;  "Sachsensp.,"  3,  45,  2  (half  a  man), 

2  As  to  the  right  of  inheritance  of  women,  cf.  Opet,  "Erbrechtl.  Stell.  d. 
Weiber,"  1888  ("Unters.,"  by  Gierke);  Ficker,  "Erbenfolge,"  etc.  Post, 
"Inheritance." 

3  As  to  the  powers  of  the  "mundoaldus,"  cf.  "Power  of  the  Father," 
"Power  of  the  Husband";  Fertile,  III,  236;  Simonnet,  p.  46.  —  Correction: 
"Roth.,"  221;  "Liut.,"  5;  "Wis.,"  3,  4,  4. —  Marriage:  "Roth.,"  196  (c. 
"Wis.,"  3,  3,  1);  "Thur.,"  47;  "Liut.,"  119;  "Wis.,"  3,  2,  8  (disinheriting). 
Responsibility  and  right  to  the  composition:  "Roth.,"  201  s.,  186;  "Liut.," 
125;  "Fris.,"  9,  8  et  seq.;  "Sax.,"  40  (both  these  laws  give  the  young  girl  a 
portion  of  the  composition);  A7nira,  "Nordgerm.,  O.  R.,"  I,  402.  —  Ahena- 
tions:  "Roth.,"  204,  to  appear  in  court.  Formula)  upon  the  Lombardian 
laws.     ("Wis.,"  2,  3,  -6,  allows  him  to  appear);  Papien,  11,  2. 

^  Laboulaye,  p.  442;  Ostrogorski,  "La  Femme  au  Point  de  Vue  du  Droit 
Public,"  1892;  Giraud,  "Les  Cond.  des  F.  au  Point  de  Vue  de  I'Exercice  des 
Dr.  Pubhcs,"  1891. 

^  Dig.  X,  I,  48,  4.  Cf.  the  English  axiom  (already  untrue  in  the  time  of 
Bracton):  "The  woman  cannot  be  put  outside  of  the  law,  because  she  is 
never  within  the  law";  Amira,  "Nordgerm.,  O.  R.,"  I,  143  (no  "  Friedlosigk" 
for  minors  and  women). 

8  I,  10;  II,  2;  "Jost.,"  p.  103;  Beaumanoir,  5,  17;  Gide,  p.  399,  ridicules 
this  reason  in  an  agreeable  manner;  it  is  not  so  ridiculous  as  he  makes  out; 
our  old  jurisconsults  would  lead  one  to  suppose  that  women  like  the  one 
spoken  of  in  the  Digest,  3,  1,  5,  and  who  in  reaUty  was  called  Carfania,  were 
not  rare  in  their  time.  It  may  very  well  be  that,  while  allowing  the  woman 
to  plead  for  herself  {Beaumanoir,  2,  17),  our  old  law  found  some  danger  in 
allowing  her  to  plead  for  another:  "Wis.,"  2,  3,  6;  "Schwabenspiegel,"  2,  24; 
cf.  "Summa  Norm.,"  70.  Women  can  neither  prosecute  nor  defend  a  crim- 
inal action;  if  no  one  defended  them,  they  cleared  themselves  by  means  of 

223 


§  183]  THE   FAMILY  [Chap.  I 

true  motive  is  in  the  tradition  which  separates  women  from  the 
tribunals  and  from  "  officia  viriHa."  The  "  Tres  Ancienne  Coutume 
de  Bretagne,"  Art.  68,  declares  that  no  woman  shall  be  a  guard- 
ian, a  trustee  (with  the  exception  of  the  maternal  guardian),  or 
a  judge,  or  shall  undertake  negotiations  in  court  (excepting  for  a 
husband,  her  children,  her  father  and  mother).  She  cannot  be  a 
witness  to  notarial  deeds,  especially  to  wills,^  which  can  be  ex- 
plained strictly  by  the  idea  that  witnessing  in  a  case  of  this  sort 
has  the  appearance  of  a  public  function,  but  which  is  rather  owing 
to  the  fact  that  the  veracity  of  women  is  doubted;  in  fact,  it  is 
not  ^dthout  great  difficulty  that  they  have  been  admitted  to 
testify  in  criminal  matters.  With  time,  the  inferiority  of  the 
woman  in  relation  to  the  man  became  less.  In  allowing  her  to 
have  the  capacity  of  inlieriting  fiefs,  and  even  kingdoms,  it  was 
bound  to  follow  that  she  should  be  granted  the  political  capacity 
inherent  in  their  possession.^  It  is  thus  that  the  lady  who  has  a 
fief  sits  in  the  Feudal  Court;  ^  in  the  Pyrenees  the  woman  who  is 
head  of  the  house  takes  part  in  the  assemblies  of  neighbors,  and 
sometimes  presides  over  them;  ^  elsewhere  the  daughters  and 
widows  who  have  a  separate  establishment  take  part  in  the  village 
assemblies  for  the  community  of  States  in  the  same  way  as  men.^ 
Again,   in  the  sixteenth  century,  they  can  be  chosen  as  arbi- 

the  ordeal:  J.  d'Ibelin,  82,  105;  "T.  A.  C,  Norm.,"  50,  4.  In  the  duel  at 
law  women  had  a  champion  to  represent  them:  Beaumanoir,  63,  7;  c/.,  how- 
ever, "Schwabenspiegel,"  c.  229;  "Roth.,"  203;  "Sachsensp.,"  I,  43;  Paris, 
de  Piiteo,  "Duell.,"  1540;  Thomas,  "De  Ordin.  Duelh";  "Ass.  de  Jerus.," 
"  C.  de  B.,"  II,  30;  she  can  plead  on  behalf  of  her  father  if  he  be  ill :  "  T.  A.  C, 
Bret.,"  68. 

1  Beaumanoir,  39,  40,  49;  "Summa  Norm.,"  85,  6;  Faber,  "Inst.,"  44  b. 
("vaga  et  instabilis  "). 

^  Thus  the  possession  of  a  fief  conferred  rather  extensive  privileges  upon 
women.  Struck,  no  doubt,  by  the  contradiction  existing  between  the  feudal 
system  and  the  general  rule  of  incapacity,  Bodin,  "Republ.,"  6,  5,  explains 
this  last  rule  by  saying  that  women  are  not  lacking  in  prudence,  but  that 
their  domestic  role  forbids  their  indulging  in  masculine  deeds.  —  Certain 
Customs  assured  the  women  favorable  treatment:  Glasson,  7,  125.  The 
"Coutume  de  Reims"  was  called  the  "Coutume  des  Femmes"  because  of  the 
advantages  which  it  conferred  upon  them:  Varin,  "Arch.  Leg.  de  Reims,"  I, 
606. 

*  P.  de  Fontaines,  18,  74;  Beaumanoir,  14,  27;  "Artois,"  54,  74;  "Jostice," 
p.  273;  Duchesne,  "Script,  r.  Fr.,"  4,  731,  471:  "sedeas  ad  cognitionem 
causarum,"  says  Louis  VII  to  Ermengarde,  Vicountess  of  Narbonne:  D. 
Vaissette,  n.  146,  275,  278,  518;  Brussel,  I,  262;  "Cart,  de  Beaulieu,"  195, 
273;  Dig.  X,  1,  48,  4.  Where  women  do  not  inherit  fiefs  they  have  no  juris- 
diction: Loysel,  608.  In  return  for  this  the  lady  of  the  fief  has  to  render 
military  services  (by  means  of  a  representative:  "Schwabenspiegel,"  II,  61; 
"Et.  de  Saint  Louis,"  I,  60),  the  service  of  marriage:  Laboulaye,  p.  257. 

*  Lagrbze,  "Dr.  dans  les  Pyrenees,"  p.  66;  "  Actes"  Mss. 

*  Taxes  (tallage),  cf.  "Summa  Norm.,"  14,  8;  Law  of  June  10, 1793;  Viollet, 
p.  293,  n.  4. 

224 


Topic  13]  COiSTDITION   OF   WOMEN  [§  184 

trators; '  it  is  true  that  a  century  later  they  can  no  more  be 
arbitrators  than  they  can  be  judges. 

§  184.  Changes  in  the  Station  of  Women.  —  The  influence  of 
the  Roman  Law  and  the  Christian  ideas,  the  disorganization  of 
the  family  group,  the  interference  of  the  State  within  the  circle 
of  private  interest,  brought  about  the  gradual  emancipation,  here 
slow,  there  more  rapid,  of  unmarried  women.  It  is  thus  that 
among  the  Franks  we  have  been  justified  in  asking  if  as  early  as 
the  barbarian  period  the  guardianship  of  women  had  not  dis- 
appeared.^ The  daughter  who  had  come  of  age  and  lived  "^dth 
her  parents  had  not  the  right  to  marry  without  their  consent,^ 
until  the  triumph  of  the  canonic  doctrine  of  marriage  "solo  con- 
sensu." ^  As  to  the  widow,  we  have  seen  what  difficulties  her 
marriage  gave  rise  to;  the  most  that  the  primitive  practice  as- 
sumes is  the  decline  of  guardianship;  and,  consequently,  the  au- 
thority of  the  relatives  over  the  widow  seems  to  gain  strength. 
The  alienation  of  possessions  and  judicial  acts  call  for  the  inter- 
vention of  guardians;  ^  as  far  as  the  Frankish  law  is  concerned, 
the  documents  are  far  from  being  clear;  sometimes  the  woman 
acts  alone,  sometimes  she  is  assisted  by  an  "advocatus,"  or,  if  it 
is  a  matter  concerning  a  widow,  by  her  children.^    If  one  compares 

^  Loysel,  53;  Beaumanoir,  51,  26;  "Artois,"  54;  "Et.  de  Saint  Louis,"  I, 
62. 

2  Ficker,  " Verwandtschaf t  zw.  Goth.  u.  Norweg.  R.,"  1887;  Erbenfolge, 
'passim;  Opet,  " Geschlechtsvorm.  i.  d.  Frank.  Volksr.,"  1890;  "Frag.  d. 
Frank.  Geschl.,"  1898;  ("Mitth.  Oest.  Geschichtsf.");  Hiibner,  "K.  V.  J.," 
1893,  38;  Brissaud,  "Acad.  Sc.  Toulouse,"  1895;  Lefebvre,  p.  327. 

3  Cf.  "Thuring.,"  10,  3. 

*  "Reipus,"  marriage  for  a  symbolical  price.  Cf.  "Roth.,"  222,  and  "Rib.," 
58,  18.  No  allusion  in  the  texts  to  the  age  after  which  the  consent  of  the 
relatives  was  no  longer  required.  —  Vows:  "Cap."  1819,  c.  21  (I,  285); 
Opet,  "Frag.,"  20. 

^  Thevenin,  no.  113,  cf.  no.  119;  "Roth.,"  205.  The  Scandinavian  law 
merely  forbids  women  to  appear  in  court:  "Const.  Sic,"  2,  38. 

6  Pardessus,  "Dipl.,"  394;  TMvenin,  p.  192;  "  F.  Andcc,"  16,  12,  26; 
"Sen.,"  51;  "Sen.  Rec,"  5;  Hilhner,  "Gerichtsurk.,"  nos.  52,56,  58,  165,  etc. 
Numerous  deeds  in  church  and  monastic  records:  Cf.  Opet,  ibid.,  p.  30  et  seq. 
The  "advocatus"  who  is  interposed  in  the  deeds  of  women  has  nothing  in 
common  with  a  guardian  (according  to  Opet),  for  he  is  to  be  found  in  deeds 
drawn  by  men;  he  is  rather  a  "fidejussor,"  a  "Saleburgio"  ("Salmann"). 
Cf.  especially  the  Cartulary  of  Savigny,  where  gifts  take  place  ordinarily 
"per  manum"  of  a  third  party.  As  to  the  presence  of  women  in  court: 
"Form.  s.  Roth.,"  183,  204;  discussion  in  Opet,  p.  62;  "Rib.,"  81;  "Capit.," 
819,  c.  3.  In  default  of  "testes"  (Brunner  translates  this  "fellow  oath  taker") 
or  "si  legem  nescicrint,"  the  count  shall  come  to  their  support  by  gixing  them 
a  representative  charged  with  defending  their  interests.  These  measures  in 
the  interest  of  widows  and  orphans  do  not  perhaps  show  in  the  case  of  one 
more  than  in  the  other  that  on  principle  they  are  not  under  guardianship: 
"Capit.,"  I,  93,  209,  etc.;  "  Ord.,"  1319  (XII,  450);  cf.  "Exodus,"  xxii,  21; 
"Deuter.,"  xxvii,  19;   "Cone,  de  Mucon,"  2,  c.  12  {Bruns,  II,  253);  com- 

225 


§  184]  THE   FAIVIILY  [Chap.  I 

these  texts  to  the  Lombard  documents,  where  the  "mundium"  is 
concisely  set  forth,  he  will  admit  at  least  that  the  guardianship 
of  women  was  in  full  decline  among  the  Franks.^  As  we  look  at  it, 
it  would  be  going  too  far  to  say  that  it  had  completely  disap- 
peared, and  much  more  so  that  it  had  never  existed.^ 

§  185.  German  and  Italian  Law.^  —  In  Germany  and  in  Italy 
the  enfranchisement  of  the  woman  was  with  difficulty  realized; 
the  guardianship  of  the  sex  was  maintained;  it  seems  to  have  been 
feared  that,  deprived  of  the  protection  of  her  family,  and  too  in- 
experienced to  administer  her  affairs  at  a  time  when  these  became 
complicated,  she  might  compromise  her  interests  if  she  were  not 
provided  with  a  guardian,^  and  especially  in  litigation  and  ju- 
dicial proceedings  (alienation  of  movables).^  If  she  had  no 
father,  if  the  guardianship  were  first  of  all  permanent  and  legal, 
and  accorded  to  the  nearest  male  descendant,  it  is  already 
given  by  appointment  in  the  "  Sachsenspiegel,"  and  the  guardian 
named  by  the  magistrate  ^  only  assists  the  woman  for  some  spe- 

petency  of  the  ecclesiastical  judges.  —  Obligation  for  the  woman  to  pay 
compositions  and  a  right  for  her  to  demand  them :  "Rib.,"  83,  1;  "F.  Andec," 
29;  "Capit.,"  I,  281,  c.  4.  The  power  of  disposing  of  their  possessions  seems 
to  be  beyond  dispute  in  the  case  of  nuns:  Pardessus,  "Dipl.,"  passim.  The 
desire  of  facihtating  gifts  for  the  benefit  of  the  Church  must  have  been 
responsible  for  recognizing  the  capacity  of  women  in  general. 

1  Q.  "Wis.,"  3,  4,  2. 

2  It  is  hard  to  see  why  this  should  never  have  existed  among  the  Franlcs 
as  it  did  amongst  the  other  Alemanni.  The  family  and  marriage  are  organ- 
ized in  the  same  way;  the  condition  of  women  is  dependent  upon  it.  The 
customs  bear  witness  to  the  inferior  position  of  women.  Heroic  songs:  Ve- 
tault,  "Charlemagne"  509;  Gautier,  "Chevalerie,"  passim.  At  law  unmar- 
ried girls  who  lived  with  their  relatives  did  not  escape  from  their  domestic 
authority:  "Bord.,"  63.  Guardianship  of  the  girl  who  has  attained  her  ma- 
jority, and  who  has  lost  her  father,  until  the  time  when  she  marries:  "  T.  A.  C, 
Bret.,"  80.  We  doubt  whether  they  could  found  a  separate  establishment. 
As  to  widows,  the  protection  of  the  Church  and  the  king  bear  witness  to  their 
independence  in  fact,  at  least,  and  their  emancipation  from  their  relatives; 
post,  "Second  Marriages."  Their  condition  was  thus  like  that  of  the  Roman 
women:  Carolus  de  Tocco,  on  "Lomb.,"  2,  7,  2.  As  to  the  Lombardian  law 
and  the  "L.  29  Liut.,"  Rosin,  p.  57;  Beaumanoir,  43,  27:  "As  soon  as  her 
baron  is  dead  the  wife  comes  back  to  her  full  capacity."  "Wis.,"  3,  4,  2,  7; 
"Burg.,"  52,  3;  ".^thelr.,"  5,  21;  Cnut,  2,  73;  Procop.,  "B.  g.,"  1,  2; 
Meynial,  "Mar.,"  p.  86.  "Mother  as  Guardian,"  "Dower,"  "Right  of 
Inheritance,"  post. 

3  Gide,  pp.  280,  302;  Stohhe,  IV,  427;  Huher,  IV,  291;  Pertile,  §  102;  "Dr. 
Scandinave,"  Girle,  pp.  224,  232;  c/.  Dareste,  Amira. 

*  "Dr.  de  Lubeck,"  Art.  21;  "Soest.,"  27;  cf.  Kornmann,  "De  Virginitate," 
p.  74. 

^  "Beistand,"  who  takes  part:  "Schwabenspiegel,"  II,  24:  "No  woman  can 
be  guardian  of  herself  nor  appear  for  herself  in  court,"  I,  50:  "A  woman 
pleads  through  her  advocate."     "T.  A.  C,  Bret.,"  68. 

^  The  Statute  of  Florence,  1415,  6,  places  among  the  attributes  of  the 
magistrates  that  of  appointing  guardians  for  women:  "Const.  Modene," 
1771. 

226 


Topic  13]  COXDITION   OF   WOMEN  [§  187 

cific  act,  after  which  his  functions  no  longer  exist.^  The  designa- 
tion of  a  guardian  is  in  the  end  even  made  by  the  woman  herself, 
subject  to  ratification  by  the  judge.^  As  in  the  Roman  law,  the 
guardian  only  exists  for  the  sake  of  formality.  But,  such  is  the 
force  of  tradition,  that  the  obsolete  institution  of  the  guardian- 
ship of  women  was  only  done  away  with  in  1870,  at  Hamburg, 
and  in  1881  at  Bale-Campagne.' 

§  186.  In  France,  during  the  feudal  period,  the  guardianship 
of  women  no  longer  exists.^  The  unmarried  woman  is  capable  of 
appearing  in  court,  of  contracting,  of  making  a  will,  in  the  same 
manner  as  a  man:  "A  girl  is  as  good  as  a  man."  ^  This  does  not 
mean  to  say  that  she  can  freely  dispose  of  her  possessions;  the 
rights  of  the  family  are  opposed  to  it,  at  least  in  that  which  con- 
cerns personal  belongings;  but  these  rights  exist  equally  in  rela- 
tion to  men.  If  there  is  an  inequality  to  the  detriment  of  the 
women,  it  is  only  as  far  as  inheriting  is  concerned.  The  old  cus- 
tom, "in  multis  deterior  est  conditio  feminarum  quam  mascu- 
lorum"  (Digest,  1,  5,  9),  ceases  in  almost  every  respect  to  be  true 
as  concerns  private  law. 

1  I,  47,  2;  II,  63,  1;  cf.  I,  41;  Longe,  "Cout.  de  Brabant,"  III,  205  (cited 
by  Viollet);  Chaisemartin,  71. 

2  Imagina  de  Linange  chooses  the  guardian  who  assisted  her  in  her  con- 
tract of  marriage  in  1452:  Albrecht,  "Rappolst.  Urkundcub.,",IV,  464;  Pertile, 
III,  236  (Act  of  1190). 

_3  In  Vienna  (Austria),  in  1340,  unmarried  women  are  freed  from  guardian- 
ship at  the  age  of  fifty:  Viollet,  p.  290;  Gide,  p.  234;  among  the  Scandina- 
vians they  come  of  age  at  twenty-five,  "venia  sexus." 

*  Beaumanoir,  II,  27;  "Jost.,"  p.  273;  "T.  A.  C,  Norm.,"  80,  5;  "Auv.," 
14,  2;  cf.,  however.  Charter  of  Amieas,  1190,  23  ("Ord.,"  XI,  264).  Opd,  p.  94, 
denies  that  there  is  in  this  a  remnant  of  the  guardianship  of  women.  See 
texts  cited  by  Opet,  p.  55,  87,  18.  Laws  and  Statutes  of  Vaud,  1,  4,  1:  "Mar- 
ried women  and  unmarried  women  are  subject  to  a  continual  minority." 
Salis,  "Z.  S.  S.,  G.  A.,"  1886,  141.  England:  equality  of  the  two  se.xes: 
Pollock  and  Maitland,  I,  465. 

^  Like  gentlemen  and  clericals,  the  woman  has  the  privilege  of  being  able 
to  defend  herself  by  means  of  an  attorney:  Beaumanoir,  IV,  31.  Cf.  as  to 
this  intervention  of  the  "advocatus":  Beaumanoir,  II,  31;  X,  13;  XII,  6. 
Cf.,  on  the  other  hand,  "Femmc  Mari6e,"  ed.  Salmon,  see  Table,  "Jost.," 
p.  273  (she  can  give  a  guarantee);  "Gr.  C.  de  Fr.,"  pp.  323,  350,  379,  389; 
^'Bourg.,"  3,  18;  "Auv.,"  1510,  13,  1;  "  F.  do  Morlaas,"  177,  etc.;  "Summa 
Norm.,"  41  (delay  for  the  widow).  The  "Gr.  C.  de  Fr.,"  p.  216,  establishes 
the  fact  that  through  custom  in  the  lay  court  no  woman,  married  or  otherwise, 
shall  be  imprisoned  in  a  civil  case:  "Nov.,"  134,  9;  Boutaric,  2,  6;  Gui  Pape, 
"Qu.,"  256;  Masuer,  20,  1;  hnbert,  "Enchir.,"  see  "Femme"  and  the  note. 
The  privilege  by  virtue  of  which  women,  whether  married  or  not,  could  not 
be  compelled  by  physical  means  in  a  civil  case,  was  sanctioned  by  the  Ordi- 
nance of  1667,  34,  8;  it  ceased  to  apply  when  a  tradeswoman  who  served  the 
pubUc  had  signed  a  bill  of  exchange  (excepting  in  the  jurisdiction  of  the 
Parliament  of  Toulouse).  Ferriere,  see  "Femme,  Contrainte  par  Corps"; 
Merlin,  ibid.  Cf.  "Code  Comm.,"  113  (the  bill  of  exchange  is  the  equivalent 
of  a  simple  pronaise). 

227 


§  187]  THE   FAMILY  [Chap.  I 

§  187.  Velleianum  Decree  of  the  Senate.^  —  It  became  neces- 
sary, however,  for  an  important  exception  to  the  principle  of  the 
equahty  of  the  sexes  in  civil  matters  to  be  introduced.  An  effort 
was  made  to  limit  the  capacity  of  the  woman  by  applying  to  her 
the  provisions  of  the  Velleianum  Decree  of  the  Senate;  the  woman, 
whether  married  or  not,  cannot  obligate  herself  for  another,  it 
was  said,  following  the  Roman  laws,  because  of  her  weakness  and 
her  inexperience  in  business.^  Neglected  for  a  long  time,  and 
almost  forgotten  in  the  South  itself,^  the  prohibition  of  interced- 
ing reappeared  as  a  consequence  of  the  renaissance  of  Roman 
law,^  and  was  propagated  in  the  countries  of  Customary  law,^ 
especially  in  the  fourteenth  century,  when  Boutillier  considers 
the  law  of  the  Consul  Velleius  as  being  in  full  force.^  But,  if  it 
triumphed  in  the  South  at  the  same  time  as  did  the  inalienability 
of  the  marriage  portion  elsewhere,  it  clashed,  on  the  one  hand, 
with  the  emancipation  of  the  unmarried  woman,  which  had  already 
been  realized,  and  on  the  other,  w^th  the  peculiar  situation  which 
the  woman  has  by  reason  of  the  system  of  joint  ownership;  in 
obligating  herself  on  behalf  of  her  husband,  the  head  of  the  joint 
ownership,  one  does  not  know  if  she  violates  the  Roman  law, 
which  held  as  being  especially  dangerous  the  intercession  in  the 
interest  of  the  husband,  or  whether  she  respects  that  law  from 
the  moment  when  the  interests  of  the  two  spouses,  separated 
under  the  marriage  portion  system,  are  here,  on  the  contrary, 

1  Ferriere,Guyot," Diet,  de  dr.  Norm.,"  see  "Caution."  Froland,  "M^m. 
8.  Tappl.  du  senatusconsulte  Veil.,"  1772,  Gide,  p.  392.  Meynial,  "  N.  R.  H.," 
Sept.-Oct.,  1901. 

2  It  was  not  discovered  at  a  certain  given  time  that  woman  was  weak  and 
inexperienced;  neither  did  people  \deld  to  the  superstition  of  the  Roman 
law;  but  the  organization  of  the  family  having  changed,  and  women  hav- 
ing acquired  an  independent  position,  it  was  naturally  feared  that  they  would 
be  the  first  to  suffer  because  of  their  well-known  weakness. 

3  "L.  Rom.  Wis.,"  Paul,  2,  11,  1;  "Petrus,"  4,  53.  The  " Brachylogus," 
3,  10,  considers  the  Justinian  law.  In  "Preuves,"  by  D.  Vaissette,  deeds  in 
which  women  are  participants  do  not  allude  to  the  Velleianum;  but,  as  a 
general  thing,  these  women  bind  themselves  on  their  own  account.  Cf. 
Gide,  2d  ed.,  386,  2;  Glasson,  7,  127,  1;  "MontpeUier"  (1204),  38:  the  dis- 
ability of  the  wife  is  done  away  with  if  she  has  the  authority  of  her  husband: 
"Toulouse,"  74  (valid  giving  of  surety).  Masuer,  29,  91;  the  woman  can 
renounce  the  benefit  of  the  Velleianum,  excepting  if  she  binds  herself  for  her 
husband.     Post,  "Auth.,"  "Si  qua  MuUer";  "Artois,"  33,  7. 

■»  D.  Vaissette,  III,  344,  etc.;  D.  Plancher,  "Bourgogne,"  "Preuves,"  no. 
162  (in  1302);  Masuer,  29,  12;  Gui  Pape,  227;  Papon,  "Notaires,"  I,  654. 

*  Beaumanoir,  43,  14,  22,  26,  28  (validity  of  the  giving  of  surety  by  the 
widow);  "01im,"II,211(inl282);  "Gr.  Gout,  de  Fr.,"  p.  223;  "Gout.  Not.," 

'e  II,  29.  Cf.  l",  97,  p.  551.  Already  the  "L.  de  Jostice,"  p.  273,  forbids 
women  to  intercede:  Viollet,  "Et.  de  Saint  Louis,"  III,  192;  cf.  Planiol, 
"T.  A.  G.,  Bret." 

228 


Topic  13]  CONDITION   OF   WOMEN  [§  187 

mingled  together.^  Although  the  legal  theory  may,  on  principle, 
accept  the  Velleianum,  it  does  not  succeed  in  causing  it  to  be 
practised;  renunciations  made  because  of  this  decree,^  which  are 
frequent  in  the  South,^  become  very  numerous  in  the  North,  and 
become  almost  the  general  practice;  ^  but  there  is  no  agreement 
as  to  their  efficaciousness,  and  especially  as  to  the  consequences 
of  their  omission.  In  order  to  put  an  end  to  these  difficulties, 
the  Edict  of  August,  1606,  finally  repealed  the  Decree,^  and  a 
little  later  the  "Lex  Julia,"  which  is  naturally  connected  with  the 
Velleianum,  was  repealed  in  its  turn  by  an  Edict  of  1664.^    The 

1  Boutaric,  I,  97,  p.  551  (the  woman  does  not  benefit  by  the  Decree  of 
the  Senate,  unless  she  gives  up  the  community) :  "Bretagne,  T.  A.  C,"  68,  320 
(she  can  bind  herself  on  behalf  of  her  father,  her  mother,  her  husband  or  her 
children):  Dumoulin,  "De  Usur.,"  162.  The  Velleianum  is  not  applied  if 
the  funds  have  turned  out  to  benefit  the  community,  a  tiling  which  is  pre- 
sumed: Meynial,  p.  273,  n.  5. 

2  AndoftheAuthentics,  "SiquaMulier"  ("Cod.  Just.,"  4,  29,  22;  "Nov.," 
134,  8),  which  pronounced  the  nullity  of  intercession  on  behalf  of  the  husband, 
whereas  there  are  cases  in  which  intercession  on  behalf  of  third  parties  is 
valid  (confirmation  at  the  end  of  two  years,  renunciation  by  the  mother  who 
is  a  guardian,  of  the  advantages  of  the  Decree  of  the  Senate) :  Girard,  p.  779; 
Meynial,  "N.  R.  H.,"  1900,  108,  and  1901,  241,  and  especially  Art.  3,  Sept., 
1900;  Gide,  162,  405;  "Et.  de  Saint  Louis,"  III,  p.  215. 

*  They  date  back  to  the  Roman  practice:  Dig.,  16,  1,  32,  4;  "Cod.  Just.," 
5,  35,  2  ("Auth.");  "Montpelher,"  1204,  Art.  38;  Mazure,  "F.  de  Beam," 
p.  297;  "Decis.  Capellse  ToL,"  q.  37,  29;  Lattes,  p.  183  (Italy);  "Siete 
Part.,"  Table,  see  "Mulier  Fidejubens." 

*  "  Cartul.  de  Flines,"  35,  40,  etc.  (thirteenth  century) ;  Meynial,  275 ;  Planiol, 
"T.  A.  C,  Bret.,"  501,  473,  301.  The  "Close"  admits  the  validity  of  re- 
nunciations. Contra :  J.  de  Ravanis,  P.  de  Belleperche,  cited  by  Cinus  on 
the  "L.  ult.  C.  ad.  Sc.  Veil.";  J.  Faure,  "Inst.,"  4,  7.  But  the  practice  after 
the  thirteenth  century  rejects  their  opinion.  The  canon  law  pronounced 
itself  in  favor  of  this  upon  condition  that  the  renunciation  should  be  accom- 
panied by  an  oath  (Dig.  X,  28,  8,  twelfth  century) ;  G.  Durand  no  longer  even 
demands  an  oath  (2,  2,  9,  10).  As  to  the  necessity  of  the  "certioratio," 
cf.  Meynial.  Cf.  Italian  practice;  the  renunciation  is  allowed  as  a  general 
thing,  but  not  when  the  woman  binds  herself  on  behalf  of  her  husband.  The 
Bame  in  Spain:  Gide,  pp.  302,  326;  Meynial,  "In.  F." 

*  And  the  Authentic,  "Si  qua  Mulier."  Following  the  publication  of 
the  "  Observ.  de  la  Renonc.  au  Vel.,"  by  Lechassier  (reprinted  in  his  "  QEuvres," 
1649):  a  snare  for  those  who  contract  with  women  when  through  malice 
or  ignorance  the  notaries  leave  out  the  clause  of  renunciation.  The  Edict  of 
Henry  IV,  drawn  up  by  Sillery,  who  was  probably  assisted  by  Pasquier,  for- 
bade notaries  to  insert  any  renunciation  of  the  Velleianum  and  of  the  other 
privileges  of  women  in  any  contracts  drawn  by  them  and  ordered  that  these 
contracts  should  have  the  same  effect  as  though  these  renunciations  had  been 
specified  therein:  "N6ron,"  II,  722.  The  Parliaments  of  the  South,  those 
of  Rouen  and  Rennes,  refused  to  register  this  Edict  (Id.  Perjrignan,  Cohnar). 
The  Ordinances  of  1683  and  1704  upheld  it  in  Brittany  and  Burgundy:  Des- 
jardins,  "Com.  Ic  Sdnatusconsulte  Vel.  Disparut"  ("R.  crit.,"  30,  148); 
Gide,  413;  Meynial,  "N.  R.  H.,"  1901,  Sept.-Oct.  As  to  the  evolution  of  the 
German  law,  cf.  Gide,  p.  274  (bibl.);  Dernburg,  "Pand.,"  II,  228;  Meynial, 
loc.  cit. 

^  Formerly  there  was  very  often  a  confusing  of  the  Velleianum  with  the 
"Lex  Julia,"  and  by  the  "Lex  Julia"  is  to  be  understood  the  inalienability  of 
the  marriage  portion,  even  when  made  with  the  consent  of  the  woman,  —  that 

229 


§  187]  THE   FAMILY  [Chap.  I 

provisions  of  these  two  laws  were  of  no  effect,  however,  in  the 
countries  of  written  law  ^  and  in  Normandy;  ^  the  Velleianum 
was  always  in  full  force  in  them;  it  only  disappeared  with  the 
publication  of  Art.  1125  of  the  Civil  Code  (Feb.  17,  1804)  .^ 

§  188.  The  Same.  —  It  would  have  been  strange  if  the  ques- 
tion of  the  capacity  of  women  had  not  been  raised  under  the 
Revolution.'^  Condorcet  brought  it  up  as  early  as  1787,  in  a  writ- 
ing where  he  maintained  that  "  there  is  between  the  two  sexes  no 
difference  which  is  not  the  result  of  education."  This  paradox 
found  a  vehement  adversary  in  Mirabeau.^  Taking  their  stand  on 
a  more  practical  ground,  the  Memorials  of  1789  were  concerned 
with  the  abolition  of  the  pri\dleges  of  men  as  far  as  inheritance 
was  concerned;  the  exclusion  of  the  daughters  seemed  contrary 
to  natural  law;  the  Revolutionary  laws  did  away  with  it.  The 
woman  was  also  permitted  to  be  a  witness  in  the  civil  acts  of  life,^ 
but  she  was  not  given  the  right  of  being  a  guardian,  nor  that  of 

is  to  say,  the  "Lex  Julia"  as  amended  by  Justinian.  The  Edict  of  April,  1664, 
repealed  the  "Lex  Julia"  in  the  Lyonnais,  Maconnais,  Beaujolais  and  Forez, 
district  of  written  law  under  the  Parliament  of  Paris;  it  held  in  the  inter- 
ests of  commerce  that  obligations  entered  into  by  women  should  be  validly 
binding  upon  the  land  included  in  the  marriage  portion  as  well  as  upon  the 
paraphernalia:  Gide,  p.  412. 

1  The  "Coutume  de  Toulouse,"  "De  Debitis,"  2,  rejected  the  Velleianum 
as  well  as  the  inalienability  of  the  marriage  portion;  but  in  the  sixteenth 
century  it  was  no  longer  observed:  Catellan,  "Arr.,"  IV.  49;  Casaveteri,  fo. 
27;  Serres,  "Inst.,"  p.  487  et  seq.;  Julien,  "Elem.  de  Jur.,"  p.  370;  BriUon, 
"Diet.,"  see  "Femme,"  "Velleien";  Henrys,  IV,  8.  As  to  cases  in  which  the 
Velleianum  does  not  apply  in  the  South,  and  as  to  renunciations  of  the  advan- 
tages conferred  by  the  Decree  of  the  Senate  (which  were  valid  on  condition 
of  "certioratio"),  cf.Ferriere,  see  "Velleien,"  "Renonciation,"  and  authors 
cited:  Imbert,  "Enchirid.,"  see  "Femme";  Meynial,  "N.  R.  H.,"  1901,  Sept.- 
Oct. 

2  As  to  the  application  of  the  Velleianum  in  Normandy,  c/.  Froland,  "Me- 
moire,"  1722;  Colin,  "N.  R.  H.,"  1892,  p.  436.  The  Norman  books  of  Cus- 
toms, and  even  the  "Coutume  de  Normandie,"  are  silent  upon  the  subject  of 
the  Velleianum,  —  an  obvious  proof  that  this  Roman  law  was  only  intro- 
duced into  Normandy  through  the  combined  action  of  doctrine  and  juris- 
prudence; the  disability  caused  by  the  Velleianum  was  a  logical  outcome 
of  the  Norman  law:  Gide,  397.  Also  a  renunciation  of  the  Decree  of  the 
Senate  is  prohibited  in  Norman  law.  An  obligation  contracted  by  a  woman 
in  violation  of  the  Velleianum  is  null  and  void  of  absolute  right.  In  the 
South  letters  of  rescission  are  required:  Froland,  p.  154;  Imbert,  "Enchirid.," 
see  "F'emme." 

'  Robert,  "Capacity  des  Femmes  av.  et  Dep.  la  L.,  17  Niv.,  an.  II,"  1813. 

*  Sagnac,  251,  368. 

^  A  writing  abolished  after  his  death  by  Cabanis.  Sylvain  Mareschal, 
author  of  "  Diet,  des  AthcSes,"  1880,  and  of  the  "  Code  d'une  Soci^t^  d'Hommes 
sans  Dieu,"  1797,  in  1801,  wrote  a  "  Projet  de  Loi  Portant  Defense  d'Apprendre 
k  Lire  aux  Femmes." 

6  Law  of  Sept.  20,  1792,  3,  1;  Viollet,  "N.  R.  H.,"  1890,  715.  The  Law  of 
the  7th  Dec,  1897,  allowed  women  to  be  witnesses  to  certificates  of  birth, 
death  and  marriage,  and  to  notarial  deeds. 

230 


Topic  13]  CONDITION  OF  WOMEN  [§  188 

taking  part  in  the  council  of  the  family.^  Still  more,  political 
rights  were  refused  her.^  One  is  well  aware  how  this  last  point 
has  raised  difficulties  in  modern  legislations.^  On  the  other  hand, 
the  civil  equality  between  the  woman  (unmarried)  and  the  man 
is  acquired  in  an  absolute  manner."* 

1  Idem,  according  to  the  Civil  Code. 

2  Law  of  June  10,  1793:  vote  of  women  as  to  the  partition  of  rights  of 
commons. 

3  "Gr.  Encycl.,"  see  "Femme";  Bridel,  "Melanges  Fdministes,"  1897; 
Ostrogorski,  "Dr.  des  Femmes,"  1894;  Lamy,  "La  Femme  de  Demain," 
1901. 

^  There  is  no  longer  any  thought  of  appointing  guardians  for  them;  they 
are  left  to  provide  them  for  themselves.  C/.  the  "  procuratores  "  of  the  Roman 
women:  Cicero,  "Pro  Csecina,"  V,  14. 


231 


§189] 


THE    FAMILY 


[Chap.  I 


Topic  14.    Guardianship  and  Custody 


§  189.  Guardianship  of  Minors  during 
the  Barbarian  Period. 

§  190.  Suspension  of  Actions  by  or 
against  the  Minor. 

§  191.  Intervention  of  the  State. 

§  192.  Feudal  Law. 

§  193.  Seigniorial  Protection. 

§  194.  The  Lease  of  Fiefs. 

§  195.  Rights  of  the  Guardian. 

§  196.  Obhgations. 

§  197.  Nobleman's  Custody. 

§  198.  Plebeian  Custody. 

§  199.  Citizen's  Custody. 

§  200.  Modern  Guardianship. 


§201.  In  France  every  Guardianship 
is  Appointive. 

§  202.  Powers  of  the  Guardian. 

§  203.  Guarantees  in  the  Interest  of 
the  Minor. 

§  204.  The  Revolutionary  Law. 

§  205.  The  Question  of  the  Capacity 
of  the  Minor. 

§  206.  The  Barbarian  Majority. 

§§  207,  208.  Under  the  Feudal  System. 

§§  209,  210.  Emancipation  of  Minora 
under  Guardianship. 

§§  211-214.  Persons  who  have  at- 
tained Majority  and  are 
under  a  Disabihty. 


§  189.  Guardianship  of  Minors  during  the  Barbarian  Period. 
—  Germanic  guardianship  ^  is  nothing  more  than  the  "  mun- 
dimn,"  or  domestic  power,^  in  its  appHcation  to  the  minor  whose 
father  is  dead.^  One  must  be  careful  not  to  see  therein,  as  has 
been  done  only  too  often,  an  institution  established  in  the 
interest  of  the  minor  with  the  object  of  saving  him  from  the 
consequences  of  his  weakness  and  inexperience.^  This  is  a 
power  and  a  right  which  is  entirely  for  the  benefit  of  the  family, 
and,  as  a  consequence,  entirely  for  the  profit  of  the  head  of  the 


1  See  especially  Heusler,  §§  23-27,  and  §§  165-171. 

2  If  a  collective  guardianship  exercised  by  the  "Sippe"  existed,  especially 
among  the  Anglo-Saxons  (c/.  Schroeder  and  authors  cited)  it  was  not  long 
before  tliis  guardianship  passed  to  the  family,  the  "Sippe"  keeping  at  the 
most  a  special  right  of  supervision:  cf.  Heusler,  §  130,  II,  p.  485  (authors 
cited:  Brunner,  "Z.  S.  S.,  G.  A.,"  Ill,  49;  Amira,  "Erbenfolge,"  84,  149,  208; 
Gierke,  "Genossenschaftsr.,"  I,  22,  44;  "Erbrecht  u.  Vicinenrecht,"  "Z.  R.  G.," 
XII,  487).  Also:  Picker,  "Erbenfolge,"  passim;  Amira,  "Recht,"  §  53 
et  seq. 

^  The  death  of  the  mother  does  not  alter  the  paternal  power  in  the  least. 
Cf.,  however,  "Wis.,"  4,  2,  13  (second  marriage  of  the  father,  possibility  of  a 
guardianship).  —  There  are  even  found  after  this  in  Germany  cases  of  guar- 
dians acting  for  minors  who  are  under  the  paternal  power  (in  1279,  1488); 
partition;  alienation  of  the  cliild's  possessions. 

^  If  the  Roman  stamp  is  observable  in  the  laws  of  the  Visigoths,  4,  3, 
and  of  the  Burgundians,  85  (cf.  Papien,  36),  the  Lombard  law  seems  to  be  an 
accurate  expression  of  the  old  Germanic  law;  from  reading  the  laws  of  "  Liut.," 
58,  74,  75,  99,  117,  149,  where  the  question  of  minors  is  dealt  with,  one  would 
say  that  guardianship  had  no  existence.  They  find  a  protection,  not  in 
guardianship,  but  in  the  principle  that  the  minor  shall  not  be  allowed  to 
cause  injury  to  himself  through  his  own  acts;  his  rights  lie  dormant  until 
his  majority.  When  some  act  is  absolutely  necessary  application  has  to  be 
made  to  his  relatives:  "Liut.,"  75. 

232 


Topic  14]  GUARDIANSHIP   AND   CUSTODY  [§  189 

latter.^  Thenceforth,  the  only  guardianship  which  is  recognized  is 
the  proprietary  guardianship  by  agnates,^  that  is  to  say,  guardianship 
conferred  by  custom  upon  the  nearest  male  relative,  for  example, 
the  elder  brother.^  It  is  for  the  latter  the  means  of  protecting  his 
rights,  especially  with  regard  to  the  possessions  of  the  minor;  and 
this  power  consists  in  exercising  these  rights  almost  as  if  the 
minor  had  no  existence.^  The  agnate  sees  therein  an  advantage, 
and  not  a  duty;  he  takes  possession,  if  he  wishes,  without  any 
other  formality,  of  the  person  and  possessions  of  the  minor;  but 
he  is  free  to  renounce  the  guardianship  in  the  same  way  as  an 
heir  has  the  power  to  give  up  the  inheritance  which  accrues  to 
him;  ^  if  he  does  not  exercise  it,  he  does  not  incur  any  responsibil- 
ity.^   Over  the  person  of  the  minor  he  has,  on  principle,  the  same 

1  Maternal  Guardianship  was  borrowed  from  the  Roman  law  by  the  law 
of  the  Visigoths,  4,  3,  3;  3,  1,  7,  and  by  the  law  of  the  Burgundes,  59,  85)  so 
long  as  the  mother  does  not  marry  again,  "nulla  ei  parentilla  praeponatur"), 
c/.  "  Bai.,"  8,  7.  In  the  pure  Germanic  law  the  mother  who  is  under  guardian- 
ship could  not  have  the  "mundium"  over  her  children.  There  is  no  trace 
of  maternal  guardianship  in  the  "Sachsenspiegel":  Heusler,  II,  452.  The 
"Beisitz"  of  the  widow  and  of  her  children  does  not  imply  a  guardianship 
exercised  by  her;  the  widow  who  lives  with  her  children  has  their  custody, 
brings  them  up,  administers  the  common  patrimony,  and  acts  with  the 
authorization  of  her  own  guardian ;  but  the  children  have  no  guardian :  "  Sach- 
sensp.,"  3,  76,  1;  cf.  1,  23,  3  and  1,  11;  Stobbe,  IV,  435.  Among  the  Scandi- 
navians and  the  Anglo-Saxons  "Hloth.,"  6,  "Ina,"  38,  the  widow  has  only  a 
right  of  custody,  without  any  of  the  effects  of  the  "mundium."  —  Afterwards 
this  power  in  fact  becomes  changed  into  a  guardianship  at  law,  when  guar- 
dianship becomes  an  institution  for  the  protection  of  the  minor.  In  Germany 
she  is  then  given  fellow  guardians,  she  is  compelled  to  promise  not  to  remarry 
and  not  to  invoke  the  Velleianum  Decree  of  the  Senate:  Stobbe,  IV,  434  et  seq. 

2  These  relatives  are  guardians  by  birth;  the  old  Germanic  law  does  not 
recognize  any  appointed  guardian;  the  will  is  unknown  in  this  law,  and,  as  a 
consequence,  there  cannot  be  any  testamentary  guardian;  as  to  the  guardian 
who  is  appointed,  he  does  not  exist  either,  because  it  is  not  the  place  of  the 
State  to  designate  the  head  of  the  family;  the  transmission  of  the  "mundium" 
takes  place  by  virtue  of  the  Custom:  r/.  Brunner,  §  63. 

'  "Proximus  paterna?  generationis,"  says  the  "L.  Sax.,"  44;  "Burg.,"  59, 
85,  2;  "Wis.,"  4,  3,  3;  "Sachsensp.,"  I,  23,  1  and  45,  1;  "Cap.  Worm,"  829, 
c.  4.  The  order  in  which  the  relatives  are  summoned  is  the  same  for  guardian- 
ship as  for  inheritance.  Disabilities  are  the  same  as  with  respect  to  inheri- 
tance: women,  foreigners,  monks,  or  clericals,  people  of  feeble  mind  (?).  — 
If  there  are  no  relatives  on  the  father's  side,  then  at  a  rather  early  period 
the  relatives  on  the  maternal  side  are  called  upon:  "Form.  Salom.,"  14; 
"Schwabensp.,"  59;  "Augsburg,"  98,  1;  Kraut,  I,  170. 

*  Heusler,  II,  453. 

*  In  which  case  it  devolves  upon  the  next  degree.  But  at  an  early  period, 
if  there  were  no  closely  related  agnate,  the  guardianship  by  appointment  was 
resorted  to:  "L.  Pap.  Pipp.,"  5;  "Wis.,"  4,  3,  3;  "Sachsensp.,"  I,  42,  2.  Sub- 
sequently devolution  was  rejected  out  of  hatred  for  usufructuary  guardian- 
ship. —  lias  the  agnate  a  right  to  grant  the  "mundium"  to  a  third  party? 
Outside  of  the  quite  special  case  in  whicli  he  marries  his  ward  (cf.  example  in 
Viollet)  this  seems  to  us  to  be  very  doubtful.  Cf.,  however,  Kraut,  I,  215; 
Stobbe,  IV,  434. 

8  As  there  was  danger  of  his  negligence  compromising  the  rights  of  the 

233 


§  189]  THE   FAJMILY  [Chap.  I 

rights  as  the  father;  the  same  word,  "mundium,"  is  used  to  desig- 
nate the  paternal  authority  and  the  authority  of  the  guardian, 
from  which  it  follows  that  they  have  the  same  consequences  ^ 
(correction,^  consent  to  marriage,  etc.).  The  possessions  of  the 
minor  are  mingled  with  those  of  the  guardian.  It  is  a  sort  of  pre- 
inheritance  by  which  the  latter  profits.  If  it  is  an  exaggeration  to 
say,  especially  with  regard  to  more  recent  law,  that  the  guardian 
becomes  the  owner  of  the  possessions  of  the  minor,  because  he 
must  restore  them,  at  the  same  time  this  formula  give^  a  fairly 
accurate  idea  of  what  his  rights  are.^  He  has  the  administration 
and  the  enjoyment  of  these  possessions;  ^  all  the  income  of  the 
minor,  and,  as  a  consequence,  every  acquisition  made  with  this 
income,  belongs  to  him;  it  is  sufficient  if  he  restores  the  property 
which  belongs  to  the  ward  at  the  time  of  the  latter's  majority 
("Possessions  of  a  minor  neither  increase  nor  decrease");  ^  he  has 
a  right  to  alienate  movables;  ^  if  he  cannot  dispose  of  the  immov- 
ables in  such  a  way  that  the  deed  can  be  opposed  to  the  minor,'^ 
it  is  less  with  the  object  of  protecting  the  latter  than  as  a 
consequence  of  the  rights  of  the  family;    he  is  scarcely  more 

family,  one  can  readily  understand  that  the  agnates  were  able  to  bring  about 
his  discharge,  or,  rather,  to  discharge  him  themselves.  But  there  is  no  men- 
tion of  this  in  the  documents.  The  "Sachsonspiegel,"  I,  41,  takes  for  granted 
the  discharge  of  the  faithless  guardian  ("Balmunt")  only  as  far  as  the  guar- 
dianship of  women  is  concerned.  Cf.  Roman  law,  Girard,  p.  215.  —  The 
intervention  of  the  relatives  according  to  the  barbarian  laws  only  takes  place 
if  the  minor  should  marry  (and  in  such  a  case  as  this  he  would  ordinarily  be 
released  from  guardianship)  or  when  it  becomes  necessary  for  him  to  alienate 
his  immovables:  "Sax.,"  43;  "Roth.,"  160,  182,  195-7,  207;  Grimm,  6; 
"Liut.,"  75,  120;  Schoepflin,  "Alsat.  Diplom.,"  676  (in  858). 

1  "Div.  Imper.,"  817,  c.  16  ("Cap.,"  ed.  Bor.,  I,  273).  Education:  Stobbe, 
IV,  448. 

2  This  right  was  restricted  at  an  early  period  in  the  case  of  the  guardian 
who  was  punished  by  losing  his  guardianship  if  he  inflicted  any  bad  treat- 
ment upon  his  ward:  "Burg.,"  66;  "Roth.,"  195,  197;  "Liut.,"  12,  31,  120; 
"Wis.,"  4,  5,  1;  "Schwabenspiegel,"  I,  190. 

3  Cf.  Roman  guardianship:  Girardin,  "N.  R.  H.,"  1889,  2. 

^  "Tutela  Usufructuaria,"  "Sachsensp.,"  I,  11,  23.  He  does  not  have  to 
furnish  any  surety,  nor  docs  he  have  to  render  any  accounts  during  the 
guardianship:  "Burg.,"  85,  2,  3;  "Wis.,"  4,  3,  3;  "Liut.,"  149;  Stobbe,  IV, 
449,  8;  Huber,  IV,  512;  post,  "Lease  of  Fiefs."  The  "L.  Wis.,"  4,  3,  3,  allows 
the  guardian  only  one-tenth  of  the  income. 

5  Chaisemartin,  "Prov.,"  p.  326. 

6  The  minor  could  not  claim  them  against  third  parties  {post,  "System  of 
Movable  Property");  it  is  even  doubtful  whether  the  personal  responsibility 
of  the  guardian  could  be  involved  in  this  manner.  Cf.,  however,  to  the 
contrary,  "Burg.,"  85. 

^  Excepting  in  cases  of  necessary  alienation:  in  order  to  support  the  ward 
in  times  of  want,  in  order  to  pay  the  hereditary  debts  at  a  time  when  immov- 
ables could  be  seized  for  debts:  "Liut.,"  149  (authorization  by  the  Judge); 
"T.A.C.,  Norm.,"  7,  4,  78;  Brunner,  Table,  see  "Mundel." 

234 


Topic  14]  GUARDIANSHIP   .\ND    CUSTODY  [§  190 

free  to  dispose  of  his  own  movables.  He  has  the  power  to  col- 
lect claims  included  in  the  hereditary  estates  of  the  minor;  on 
the  other  hand,  he  is  held  liable  for  the  corresponding  debts. 
The  contracts  of  the  minor  do  not  bind  him/  but  he  is  respon- 
sible for  the  torts  of  the  former,  because  of  his  "mundium," 
even  out  of  his  own  personal  possessions.^  Finally,  the  guardian 
does  not  represent  the  minor;  he  can  only  act  in  his  own 
name  on  behalf  of  the  minor.^  The  functions  of  the  guardian 
do  not  change  when,  having  attained  his  majority,  the  ward  con- 
tinues to  live  with  him  and  does  not  claim  his  inheritance;  '^  it 
may  happen  that  the  ward  becomes  capable  from  this  time,  as  in 
the  case  of  a  child  under  a  disability;  but  the  guardian  does  not 
cease  to  have  the  use  of  the  ward's  fortune,  and  he  is  not  held 
liable  for  the  obligations  which  the  latter  may  contract,  unless  he 
has  taken  a  part  in  their  formation. 

§  190.  Suspension  of  Actions  by  or  dgainst  the  Minor. ^  — 
Under  these  conditions  the  capacity  of  the  minor  is  nil ;  he  has  not 
the  right  to  sue  and  cannot  be  sued.  The  rights  which  he  can  have 
do  not  come  into  existence  until  his  majority,  and,  consequently, 
every  proceeding  in  which  he  is  an  interested  party  must  lie  dor- 
mant until  that  time.  His  guardian  does  not  have  to  represent 
him;  ^  he  acts  in  his  own  name  and  on  his  own  account.  More- 
over, representation  in  court  is  forbidden  on  principle;  to  have 
attempted  it  by  way  of  an  exception  in  this  case  would  have  been 
to  run  the  risk  of  compromising  the  interests  of  the  minor.  These 
motives,  together  with  the  insufficiency  of  the  organization  of 
guardianship,  assured  the  old  rule  a  long  duration.  But  as  early 
as  the  second  dynasty  of  kings  it  became  necessary  to  improve  it  by 

1  "Burg.,"  87,  1,  2. 

-  On  principle,  compositions  due  by  reason  of  torts  of  which  the  minor 
has  been  a  victim  belong  to  him:  "Cap.,"  819,  5;  "Sachsensp.,"  II,  65,  1. 
Cf.  Stobbe,  IV,  453. 

^  From  which  it  follows  that  the  minor,  having  come  of  age,  is  not  respon- 
sible for  debts  contracted  by  the  guardian.  If  the  guardian  has  received  a 
composition  which  was  due  the  minor,  the  latter,  having  come  of  age,  is  not 
held  bound  to  keep  the  peace  made  by  the  guardian;  he  is  allowed  to  carry 
out  vengeance,  which  places  the  guardian  under  the  necessity  of  giving  back 
the  composition:  Brunner,  "Z.  S.  S.,  G.  A.,"  Ill,  74, 1;  Homeyer,  "Sachsensp.," 
Ill,  2,  481. 

*  Fribourg  ("Stadtrodel"),  §  34;  "Sachsensp.,"  I,  42:  after  the  age  of 
twelve  years  the  child  can  dispense  with  a  guardian,  but  he  may  also  keep  liis 
guardian  until  he  attains  the  age  of  twenty-one. 

^  Schroeder,  p.  314;  Pollock  and  Maitland,  II,  440:  "the  parol  demur" 
("loquela  remanebit");  Bracton,  fo.  274,  421;  MesU,  I,  179. 

^  Contra:  "Burg.,"  85;  "Wis.,"  4,  3,  3:  Roman  influence.  Cf.,  however, 
Scandinavian  law:  Aniira,  "Rech,"  157;  Wolf,  "Z.  V.  R.,"  1886,  3,  63. 

235 


§  190]  THE    FAMILY  [Chap.  I 

new  touches,  to  so  great  an  extent  did  it  injure  third  parties.^ 
The  Capitulary  of  819  allowed  the  compulsory  appearance  in 
court  of  a  child  less  than  twelve  years  old  who  had  taken  the  prop- 
erty of  another,  and  his  condemnation  to  pay  the  composition 
("excepto  fredo").  The  Capitulary  of  Worms,  829,  assumed  that 
those  who  took  the  property  of  another  transferred  it  to  minors 
so  as  to  prevent  the  owner  from  making  use  of  his  claim,  because 
no  one  could  plead  against  a  minor;  it  decided  that  the  father  or 
the  guardian  should  be  the  legal  representative  of  the  minor  in 
every  litigation,  excepting  when  the  "hereditas  parentum"  was 
involved;  in  this  there  remained  in  existence  the  primitive  system 
of  suspension  of  process.  Only  in  the  thirteenth  century  does  it 
begin  to  be  given  up;  actions  for  possession  are  allowed  in  view 
of  their  provisional  x^haracter.^  At  last,  in  1330,  an  ordinance 
abolished  the  old  law;  thenceforth,  minors  could  be  made  parties 
"in  causa  proprietaria'vel  reali";  they  had  appointed  for  them  a 
guardian  or  custodian  "in  litem,"  with  the  assistance  of  whom 
they  could  be  sued  without  postponing  the  settlement  of  the  case; 
for  it  had  been  noticed  that  the  privilege  w^hich  they  had  enjoyed 
had  reacted  against  them;  they  ran  the  risk  of  losing  their  rights, 
because  the  proofs  had  perished  and  in  a  general  way  the  ren- 
dering of  justice  was  found  to  be  impeded  by  this  delay .^ 
This  special  guardian  finally  came  to  be  confused  with  the  ordi- 

1  "L.  Rib.,"  81.  On  the  texts,  cf.  Kraut,  I,  133;  II,  114;  Rive,  I,  200; 
Waitz,  "V.  G.,"  IIP,  281;  Amira,  "K.  V.  J.,"  1875,  430;  Brunner,  "Z.  V.  R.," 
1,333;  "Liut.,"78;  "Qusest.  et  Mon.,"  27;  "T.  A.  C,  Norm.,"  6:  the  minor 
cannot  "probare  seu  defendere  sua  manu."  Cf.  7,  3;  74;  Beaumanoir,  III, 
18;  XVII,  7;  "Anjou,"  95;  Marnier,  "Et.  de  Norm.,"  p.  8;  Chantereau- 
Lefevre,  "Tr.  des  Fiefs,"  p.  48  et  seq.;  Viollet,  "Et.  de  Saint  Louis,"  III,  206; 
"Ord.  de  Jean  II,"  36;  cf.  Planiol,  "T.  A.  C,  Bret.,"  p.  469. 

2  "T.  A.  C,  Norm.,"  74,  78;  P.  de  Fontaines,  14,  2  etseq.;  Beaumanoir,  XVI, 
1;  "Et.  de  Saint  Louis,"  I,  78;  "Ohm,"  II,  240;  "Styl.  Pari.,"  17,  2;  "Gr. 
C.  de  Fr.,"  II,  "Des  Mineurs";  Boutaric,  I,  93;  Loysel,  187;  Ragueau,  see 
"Loi  Outree";  "Summa  Norm.,"  42.  Cf.  Principle  according  to  which 
ordinary  prescriptions  do  not  run  against  minors:  "Forsde  Beam,"  p.  193 
(40  years).  Neither  prescription  nor  usucaption  run  against  a  minor:  Bou- 
taric I  92  p.  521. 

3  "Ord.',"  II,  63]  Isambert,  IV,  385;  Loysel,  187;  Beaumanoir,  XVI,  3; 
"Const,  du  Chatelet,"  2.  —  The  Ordinance  of  1330  mentions  a  particular  fact 
which  had  drawn  the  attention  of  the  "gentes  parlamenti"  to  the  disadvan- 
tages which  resulted  from  the  excessive  prolongation  of  lawsuits  (loss  of  titles, 
death  of  witnesses).  Formerly  this  rule  had  fewer  disadvantages  because 
minority  ended  at  the  age  of  12,  As  to  the  precedents  for  the  Ordinance  of 
1330,  cf.  "Jost.,"  p.  131.  As  to  the  application  of  the  Ordinance  of  1330,  cf. 
"Gr.  C.  de  Fr.,"  II,  32,  p.  378:  there  is  found  one  action  in  the  year  17, 
that  is  to  say,  1317;  but  cf.  pp.  370,  387,  "T.  A.  C,  Bret.,"  76.  The  Addenda 
of  Aufreri  to  the  "Stil.  Pari.,"  17,  established  this  change:  Boutaric,  I,  93, 
p.  527  (ed.  1603),  however,  still  reports  the  old  rule.  —  In  England,  the  "De- 
murrer of  the  Parol"  was  only  abolished  in  1830. 

236 


Topic  14 J  GUARDIANSHIP   AND   CUSTODY  [§19^ 

nary  guardian  whose  role  consisted  formerly  in  representing  the 
minor.^ 

§  191.  Intervention  of  the  State.  — Such  a  state  of  things  as- 
sures guardians  for  rich  minors;  poor  ones  will  often  lack  them. 
It  would  not  be  a  rare  thing  to  see  minors  forsaken  by  their  rela- 
tives; it  might  also  happen  that  there  were  no  male  descendants. 
One  resource  was  left  to  these  poor  creatures;  it  was  to  place 
themselves  under  the  "  mundium  "  of  the  king.^  With  the  second 
dynasty  of  kings  one  sees  the  king  establish  himself  as  the  defender 
of  the  widow  and  the  orphan;  perhaps  one  might  even  be  justified 
in  saying  that,  on  principle,  the  royal  "mundium"  extends  over 
them  as  over  strangers,  without  their  having  to  ask  for  it,  so  much 
so  that  he  gives  them  guardians  chosen  by  himself  or  by  his  judges, 
and  chosen,  naturally  enough,  from  among  the  maternal  relatives.^ 
But  this  is  an  exceptional  case;  the  organization  of  the  protection 
of  the  minor  is  still  rudimentary;  the  State  limits  itself  to  punish- 
ing those  who  abuse  this  weakness  of  his.  It  does  not  exercise 
any  control  over  lawful  guardians.^ 

§  192.   Feudal  Law.^  —  The  proprietary  guardianship  of  barba- 

1  Heusler,  II,  502,  shows  how  German  practice  remedied  the  disadvantages 
of  the  rule  which  held  the  rights  of  minors  in  suspension;  in  case  of  alienation 
of  the  lands  of  a  minor  or  lands  belonging  to  his  relatives,  for  which  his  con- 
sent was  required,  security  was  given  to  the  grantee  in  view  of  the  supposition 
that  the  minor  might  plead  his  rights  (ex.  1259,  1293,  1302,  "amici  recog- 
noverunt  esse  proficua").  From  the  beginning  of  the  fourteenth  century 
the  guardian  acted  in  the  name  of  the  child;  at  Magdeburg  he  can  dispose 
of  his  acquests;  for  personal  belongings  he  has  to  have  the  consent  of  his 
relatives.  In  the  same  way  the  guardian  is  allowed  to  contract  debts  in  the 
name  of  the  minor;  formerly  there  was  no  need  for  him  to  do  this  because  he 
had  to  support  the  minor  out  of  his  own  personal  belongings:  when  he  lost 
a  right  to  the  issues  he  had  to  have  some  resources.  Such  rights  as  these 
conferred  upon  a  guardian  led  to  the  establishment  of  a  system  of  controlling 
tutelary  administration  (reinvestment  of  immovables  which  were  alienated, 
annual  accounts). 

2  "Cap.  Langob.,"  782,  5;  802,  5;  801-813;  810,  20;  801,  813,  c.  2,  etc. 
(I,  192;  93;  157;  171).  These  texts  merely  lay  down  a  principle  without 
elaborating  it:  "Sachsensp.,"  I,  4;  "Magdeb.  R.,"  60;  cf.  "Rib.,"  81;  "Roth.," 
204;  "Liut.j"  19,  74,  75,  149;  "T.  A.  C,  Norm.,"  3.  _  Already  the  laws  of  the 
Lower  Empire  contained  protective  provisions  for  widows  and  orphans. 

'  Heusler,  II,  483,  denies  the  existence  of  the  high  guardianship  ("Ober- 
vormundschaft")  of  the  king,  which  was  rather  generally  admitted:  cf.  Kraut, 
I,  64,  etc. 

■*  The  action  of  the  State  was  not  felt  for  a  long  time.  Thus  in  Switzer- 
land the  complaint  of  the  minor  against  the  guardian  became  possible  only 
in  the  thirteenth  century,  and  then,  again,  only  in  towns;  a  supervision  of 
the  guardian  by  the  public  authorities  only  dates  from  the  sixteenth  century: 
Huber,  IV,  515.  In  Germany  there  are  town  statutes  relating  to  guardian- 
ship and  the  control  exercised  by  the  Council  of  the  Town,  etc.:  Breslau, 
1339;  "Ord.,"  1548,  1577;  Colleges  of  Wards,  Nuremberg,  1399,  etc. 

^  Cf.  especially  D'Arbois  de  Jubainvillc,  op.  and  loc.  cit.  There  is  scarcely 
any  subject  with  regard  to  which  the  interference  of  opposed  lines  of  thought 

237 


§  192]  THE    FAMILY  [Chap.  I 

rian  times  had  not  disappeared  at  the  time  of  the  feudal  period; 
it  was  applied  to  fiefs  under  the  name  of  lease;  at  the  same  time, 
guardianship  by  appointment,  which  was  scarcely  known,  became 
organized,  thanks  to  the  king  and  the  Lords-Justices,  who  con- 
tinued the  work  of  the  Frankish  princes  and  developed  it  more 
and  more  with  the  assistance  of  Roman  precedents.^  This  double 
system  became  complicated  by  the  addition  of  seigniorial  protect- 
Hon,  that  is  to  say,  by  the  taking  back  of  the  fief  by  the  lord  who 
had  granted  it,  because  the  minor  could  not  render  him  feudal 
services.^  This  was  a  conflict  between  the  interest  of  the  lord, 
that  of  the  family,  and  that  of  the  minor,  which  was  often  settled 
in  a  very  simple  manner  by  plurality  of  guardians hij^s;  ^  the  minor 
had  as  many  guardians  as  he  had  kinds  of  property,  which  was 
possible  because  the  first  concern  was  not  the  protection  of  the 
minor.  As  progress  was  made  towards  this  idea,  it  became  neces- 
sary to  urge  the  opposite  principle  of  unity  of  guardianship.  The 
lord  was  the  first  to  lose  his  rights,  because  the  history  of  the  fief 
can  be  summed  up,  as  we  have  seen,  in  the  continuous  disposses- 
sion of  the  lord  by  the  vassal ;  the  prerogatives  of  the  family  stood 
their  ground  longer;  but  during  the  monarchic  period  an  almost 
complete  revolution  had  taken  place  in  favor  of  the  minor,  realiz- 
ing Beaumanoir's  formula,  13,  12:  "By  common  law,  the  lord  (we 
would  say  the  State)  is  bound  to  protect  the  rights  of  all  those  who 
are  under  age."  ■* 

§  193.    Seigniorial  Protection  ^  was  less  a  guardianship  than  a 

and  inaccuracy  of  terminology  in  documents  have  created  more  difficulties 
for  tlie  legal  historian. 

1  Beaumanoir,  XVI,  2:  "In  the  common  law  everybody  under  age  is  in 
the  custody  of  the  lord  within  whose  jurisdiction  he  may  be."  From  whence 
it  follows  that  the  lord  should  appoint  a  guardian  for  anybody  who  has  not  a 
legal  guardian,  and,  if  he  should  not  find  any,  he  should  himself  serve  as  guar- 
dian: P.  de  Fontaines,  14,  6,  18.  This  finally  became  the  only  form  of  custody 
through  assuming  the  form  of  Roman  guardianship.  Cf.  Pollock  and  Mait- 
land,  II,  443. 

2  Normandy,  Brittany.  Elsewhere  seigniorial  custody  is  subsidiary  to 
the  lease  and  is  not  clearly  distinguished  from  conferred  custody  or  guardian- 
ship instituted  by  the  lord  justice. 

3  Stobbe,  IV,  441. 

4  "Cap.,"  802,  5;  805,  24;  806,  3;  P.  de  Fontaines,  14,  18;  "Jost.,"  p.  68; 
"L.  d.  Droiz,"  921. 

*  Du  Cange,  see  "Custodia,"  "Gustos";  Ragueau,  see  "Garde  Noble 
Royale";  Beaumanoir,  16  (banns  and  custodies).  Norman  books  of  Cus- 
toms ("Summa,"  31,  "Gr.  C.,"  33),  and  English  authors;  Blackstone,  Pollock 
and  Maitland.,  I,  299.  De  Fort,  "Garde  Noble  Royale  en  Norm.,"  1691; 
D'Arbois  de  Jubainville,  p.  420;  "Bret.,  T.  A.  C,"  230;  "N.  C.,"  78  ("assise"  of 
buying  back,  1276);  D'Argentre  on  this  art.;  Planiol,  p.  470.  —  The  "Libri 
Feudales"  do  not  mention  seigniorial  custody.  —  As  to  "Anevelle"  and 
the  survivals  of  it  in  German  law,  cf.  Stobbe,  §  119,  IV,  texts  and  bibl.;   "  Auctor 

238 


Topic  14]  GUARDIANSHIP   AND   CUSTODY  [§  193 

taking  back  of  the  fief  by  the  lord,  a  taking  back  which  was  at 
first  absolute,  and  then  temporary  (c/.  feudal  confiscation  and 
seizure),  because  the  minor  vassal  was  incapable  of  rendering  the 
feudal  services  (for  want  of  men).  It  was  connected  with  the  per- 
sonal custody  of  the  minor  and  the  "custodia  orphani"  (Nor- 
mandy): the  wards  had  to  be  brought  up  "in  bonis  domibus"; 
they  would  be  devoted  to  the  lord  with  whom  their  youth  had 
been  passed,  and  the  latter  would  treat  them  as  his  own  sons.^  In 
the  sixteenth  century  these  feudal  ideas  were  forgotten;  the  lord 
had  only  the  custody  of  his  vassal  as  an  exception  ("  Normandie," 
217).  This  custody,  outside  of  rights  over  the  person  of  the 
minor,^  assured  him,^  perhaps  for  many  years,  the  revenues  of  the 
fief;  ^  and  in  this  way  it  was  not  without  danger  for  the  minor  and 
the  family;  they  had  always  to  take  care  lest  this  use  should  be  the 
forerunner  of  an  absolute  despoliation,  at  which  unscrupulous 
lords  would  not  hesitate  if  the  occasion  were  presented  them,  al- 
though it  might  be  illegal.^    For  the  lord  himself  the  custody  was 

Vetus,"  I,  67;  "Schwabenspiegel,"  II,  47,  101.  —  There  has  been  a  desire, 
which  seems  to  us  erroneous,  to  connect  the  seigniorial  custody  or  lease 
with  the  avowery  of  the  churches.  Still  less  is  it  derived  from  the  royal 
"mundium"  which  would  have  passed  to  the  lords,  for  this  "mundium"  is 
exercised  only  if  there  are  no  relatives,  whereas  the  seigniorial  custody  ex- 
cludes the  rights  of  relatives. 

^  "T.  A.  C.,  Norm.,"  11:  justification,  under  the  form  of  a  dialogue  of  the 
preference  given  to  the  lord  over  the  mother  and  collaterals:  "N.  C,"  213; 
Glanville,  7,  9.  Case  in  which  the  vassal  has  several  lords;  the  custody  of 
the  person  belongs  to  the  liege  lord,  that  of  each  fief  to  the  lord  granting  it : 
in  Normandy  the  duke,  when  he  has  the  custody  "ratione  ducatus,"  talves 
all  the  fiefs  and  escheats  of  the  minor:  "Summa,"  31,  6.  Privileged  Custody 
of  the  King:  Pollock  and  Maitland,  I,  302;  Bracton,io.  87;  "Charter  of  1215," 
c.  37,  43. 

2  Marriage  of  daughters  (consent  of  relatives):  "Summa,"  31;  "A.  C, 
Picardie,"  ed.  Marnier,  p.  6,  58;  "Ord.,"  1246,  2;  "Const.  Sic,"  3,  23,  1; 
Ph.  de  Navarre,  86;  Laboulaye,  "Cond.  d.  Femmes,"  p.  256;  Pollock  and 
Maitland,  I,  300  (marriage  of  sons);  Bracton,  fo  89:  "vendere  maritagium." 

*  Loysel,  4,  3,  24.  The  lucrative  character  comes  out  strongly  in  the 
power  of  transmitting  the  custody  to  testamentary  executors  {Littleton,  §  123), 
of  conferring  it  upon  some  one  {Glanville,  7,  10),  and  of  selling  it  at  auction 
("Ord."  of  1309,  I,  460). 

*  He  also  acquires  the  movables.  C/.  acquisition  of  movables  in  case  of 
the  custody  of  churches,  prerogative  (see  "jus  spoHi").  He  should  neither 
decrease  the  value  of  nor  sell  the  immovables:  Glanville,  7,  9;  Britton,  66; 
"Gr.  C,  Norm.,"  33.  —  C/.  as  to  German  law:  Stohhc,  II,  432  ("Anevelle" 
or  "proventus  bonorum"  conferred  upon  the  lord  who  may  either  keep  it 
himself  or  confer  it  upon  a  third  party) :  IV,  450  ("Anerbe"  and  "Bauergut"). 
—  The  "T.  A.  C,  Norm.,"  11,  3,  however,  says:  "exitus  terre  ponent  in  pro- 
vectum  parvulorum."  Cf.  "Anjou,"  "  Maine":  delay  of  minority  (enjoyment 
of  two-thirds  by  the  lord). 

^  Richard  de  Normandie  maltreated  by  Louis  d'Outre-Mer:  "Hist.  Franc," 
IX,  52;  Maricne,  "Ampl.Coll.,"I,621;  Brussel,l,3l3;  "Close"  on  "T.  A.  C, 
Norm.,"  11;  "Summa,"  31,  16. 

239 


§  193]  THE   FAMILY  [Chap.  I 

not  always  without  its  inconveniences,  because  it  carried  with  it 
obUgations;^  the  loss  of  the  right  of  relief^  and  the  seizure  of 
several  fiefs  could  be  a  source  of  embarrassment  for  the  lord.  It 
was  for  this  reason,  and  because  of  the  general  reasons  given  above, 
that  seigniorial  protection  disappeared,  excepting  in  Normandy ;  ^ 
the  lord  had  to  authorize  the  minor  vassal.*  It  was  finally  abol- 
ished the  6th  of  :March,  1790  (Decree  of  March  15  to  28,  1790, 
I,  12).^ 

§  194.  The  Lease  of  Fiefs  ^  almost  everywhere  did  away  with 
seigniorial  protection.^    The  proprietary  guardianship  of  former 

1  (A)  To  support  and  bring  up  the  children.  At  least,  if  they  have  no  other 
possessions:  "Norm.,"  218,  219;  Beaumanoir,  15,  19;  cf.  21,  14;  "Gr. 
Gout.,"  2,  29.  The  lord  justice  who  has  the  custody  of  minors  who  have  no 
fortune  is  not  held  bound  to  support  them.  —  (B)  To  pay  debts.  Upon  taking 
the  movables  they  should  have  paid  all  the  debts.  In  Normandy  and  in 
England  the  lord  only  paid  debts  wliich  came  due  during  his  custodianship 
and  up  to  the  amount  of  his  emolument:  Glanville,  7,  9;  "Norm.,"  215.  In 
other  countries  where  the  custody  was  subsidiary  and  scarcely  ever  existed 
excepting  in  the  case  of  a  poor  inheritance,  the  lord  escaped  the  payment  of 
debts  by  not  taking  the  movables:  Beaumanoir,  15,  13.  For  their  part  the 
creditors  could  neither  have  the  issues  sold  nor  take  possession  of  the  fief. 

2  "Summa,"  31,  12.  Thus  the  changing  of  the  lease  into  a  buying  back  in 
Brittany  is  to  be  accounted  for:  Mesle,  II,  77. 

3  In  Normandy  the  king  puts  up  for  sale  the  lease  or  guardianship  among 
the  relatives  of  the  minor.     After  the  sixteenth  century  he  makes  a  gift 

■  of  the  lease  to  the  guardian  or  to  the  near  relatives  for  a  nominal  price. 

^  "A.  G.,"  28;  Boutaric,  II,  29. 

^  England:  abolished  under  Gharles  II. 

6  See:  "Fiefs,"  "Feudal  Rights";  see  Ragueau,  Du  Cange;  see  "Bajulus," 
"Ballum,"  "Usat.,"  "Barchin.,"  103:  "tutores  vel  bujuU  respondeant,  si 
voluerint,  pro  pupillis."  Under  the  Lower  Empire  "bajulare"  means  to 
carry  a  child,  in  speaking  of  a  nurse.  From  this  is  derived  the  meaning  of  "to 
keep"  or  "to  govern" :  Viollet,  p.  536,  cites  Tardif,  " Mon.  Hist.,"  p.  34:  " boves 
quos,  bajolat."  As  to  the  use  of  this  word  in  Italy:  Fertile,  III,  466  (eighth 
century).  "  Bail"  is  applied  rather  to  possessions,  "garde"  to  the  person;  but 
the  meaning  of  these  two  words  is  not  very  well  fixed.  One  will  notice  that 
"bail"  and  "garde"  mean  the  function  and  the  person  who  exercises  it  at 
one  and  the  same  time;  but  the  person  is  also  called  the  "baillistre,"  the 
"gardien."  Loysel,  176:  "bail,  garde,  mainbour,  gouverneur,  legitime, 
administrateur  et  regentant  sont  quasi  tout  un";  178,  "Le  mari  est  bail  de 
sa  femme."  Numerous  texts,  cf.  especially:  J.  d'Ibelin.  170  et  seq.,  243; 
Ph.  de  Navarre,  22;  Beaumanoir,  c.  15  et  seq.,  21;  "  Jostice,"  pp.  58,  221;  "Et. 
de  Saint  Louis,"  ed.  Viollet,  II,  219  and  398  (see  Table);  P.  de  Fontaines, 
c.  14,  "Artois,"  29  et  seq.;  "Gr.  G.  de  Fr.,"  II,  41,  42  (p.  373  et  seq.);  "L.  d. 
Droiz,"  see  Table;  Boutaric,  I,  93;  "Vermand,"  no.  320;  Loysel,  I,  4. — 
This  feudal  institution  exists  in  Germany  and  Italy.  —  Beugnot  in  his  ed.  of 
Beaumanoir,  I,  244  (texts);  Britton,  66;  J.  d'Ibelin,  170  (Beugnot's  note); 
Chassaneus,  on  "Burg.,"  p.  852;  Mesle,  II,  74;  Cauwes,  "Gr.  Encycl.,"  see 
"Bail,"  "R.  h.  Dr.,"  XIV,  538. 

">  At  what  date?  At  a  very  early  period,  no  doubt.  During  the  thirteenth 
century  custodianship  is  already  the  exception:  "Bret.,  A.  G.,"  78.  Ghanging 
of  the  lease  into  buying  back  (1276);  whatever  age  the  heirs  may  be,  the  lord 
will  demand  a  buying  back  and  will  not  seize  the  fief:  Bemimanoir,  15,  13,  19. 
If  there  is  no  guardian  ("baillistre"),  the  lord  holds  the  fief  for  lack  of  a  man 
to  represent  it  until  the  coming  of  age  of  the  vassal:  Pothier,  "Introd.  au 

240 


Topic  14]  GUARDIANSHIP   AND   CUSTODY  [§  194 

times,  whose  obsolete  character  had  persisted  for  pecuhar  reasons, 
due  to  the  nature  of  the  fief,^  was  known  by  this  new  name;  the 
feudal  service  demanding  that  the  guardian  should  risk  his  life,  he 
was  allowed,  as  a  compensation  for  the  dangers  which  he  ran,  the 
old  advantages,  which  it  was  far  more  difficult  to  justify  in  the 
case  of  lands  held  in  villeinage. 

To  Whom  did  the  Lease  belong?  —  The  lease  was  conferred 
by  the  Custom  because  "protection  and  custody  are  custom- 
ary," ^  whereas,  guardianships  were  granted.  It  belonged  to 
the  nearest  relative  on  the  side  from  whence  the  fief  came,  that  is 
to  say,  to  the  heir  presumptive  to  the  fief,  provided  that  he  was 
able  to  officiate,^  It  was  ordinarily  a  collateral,  and  not  an  as- 
cendant, for  "feuda  non  ascendunt";  ^  at  the  same  time  the  lease 
was  also  granted  in  exceptional  cases  to  the  father  or  the  mother.^ 

T.  des  Fiefs,  C.  d'Orleans,"  X,  315;  Lauriere,  on  Loysel:  the  lord  began  by 
entrusting  the  fief  to  the  one  of  the  relatives  who  seemed  to  him  to  be  the 
most  likely  to  render  the  feudal  services:  cf.  "Assise  Geffroi,"  Art.  3. 

1  Tendency  for  the  lease  to  be  changed  into  a  guardianship  in  the  interests 
of  the  minor:  '' Artois,"  29,  8:  the  lease  is  granted  at  law,  securitj^  and  pledges 
are  assured  the  minor,  etc.  (according  to  the  written  laws):  "L.  d.  Droiz," 
420,  768;  "Const.  Sic,"  III,  30:  the  person  having  the  lease  is  obliged  to 
rGnQPr  Rn  3;Ccoiirit 

^Loysel,  185.  ' Cf.  "L  d.  Droiz,"  no.  420;  Boutaric,  I,  93,  p.  526:  he 
who  has  a  right  to  the  lease  claims  it  at  law;  p.  528.  He  gives  it  up  in  the 
court  of  the  lord;  in  both  cases  the  procedure  is  by  the  "rain  et  baston,"  as 
in  the  case  of  a  conveyance. 

'  That  is  to  say,  he  has  attained  his  majority  (cf.  "Lorris,"  48,  63;  "L.  d. 
Droiz,"  no.  876;  "Paris,"  270);  Beaumanoir,  15,  2;  J.  d'Ibelin,  c.  177,  172, 
compels  the  woman  who  has  a  lease  to  marry.  —  "Gr.  Cout.,"  2,  41,  29; 
"Artois,"  157.  The  second  marriage  carries  with  it  the  loss  of  the  lease  by 
the  mother,  but  not  by  the  father,  according  to  several  Customs:  "Tour.," 
339;  "Blois,"  2,  9,  etc.  Finally,  Loysel,  197,  says,  speaking  generally,  that 
lease  or  custody  is  lost  when  the  keeper  remarries:  "Ord.,"  1246  ("Maine"). 

■'  "Jost.,"  p.  221;  Beaumanoir,  15,  2,  14  (sister);  16,  14  (brothers); 
Desmares,  256;  "Gr.  C.  de  Fr.,"  2,  27,  28,  29  (grandparents),  41;  "Cout. 
Not.,"  25;  "Et.  de  Saint  Louis,"  I,  17;  "Anjou,"  89;  "Maine,"  202  Bou- 
taric, I,  93;  Ragueau,  see  "Bail."  Same  order  as  in  matters  of  inheritance, 
primogeniture,  preference  of  males:  D'Arbois,  III,  139;  Loysel,  188;  "A.  C, 
Vermandois,"  no.  285;  "A.  C,  Artois,"  19,  5;  Beaumanoir,  15,  7,  10.  See 
the  "Confer,  de  Coutumes"  ("Berroyer,"  "  Guenois"). 

*  J.  d'lhelin,  170:  The  father  and  mother  who  have  the  lease  of  their 
child  also  have  the  custody  of  him,  "because  tenure  of  the  fief  cannot  descend 
to  him."  Beaumanoir,  15,  9,  gives  the  custody  of  the  fief  to  the  surviving 
si)ouse:  cf.  21,  9;  but  this  custody  cea.ses  when  one  of  the  children,  having 
attained  majority,  asks  for  partition  and  takes  ui)on  himself  the  lease  of  the 
younger  children:  among  commoners  there  is  equality  and  no  custody;  this 
IS  the  case  where  the  law,  at  the  request  of  the  relatives,  removes  the  custody 
from  the  survivor  in  the  inter(;st  of  minors.  In  case  of  second  marriage, 
buying  back  by  the  .stepfather,  according  to  Beaumanoir,  21,  15;  Loysel,  197, 
"Lease  or  custody  is  lost  through  misuse  or  when  the  keeper  remarries": 
"Paris,  N.  C,"  268;  "Artois,"  157.  Sometimes  there  is  a  distinction  between 
the  widower  and  the  widow:  "Tour.,"  339;  "Melun,"  285;  "Bourg..  A.  C," 
106:  eldest  son  to  the  exclusion  of  the  father  or  mother. 

241 


§  194]  THE    FAMILY  [Chap.  I 

When  the  minor  had  paternal  and  maternal  fiefs  at  the  same  time 
he  had  two  guardians.^  As  the  guardian  in  his  quality  of  heir  pre- 
sumptive had  an  interest  in  getting  rid  of  the  minor,  in  order  to 
take  possession  of  his  property  himself,  the  custody  of  the  person 
of  the  minor  and  his  education  were  confided  to  a  relative  who  had 
no  claim  upon  his  inheritance  (ascendant,  maternal  relative) :  "  he 
should  not  have  the  custody  of  the  fleece  who  has  that  of  the 
parchment."  ^  For  the  relative  who  obtains  it,  the  lease  is  like 
an  anticipated  inheritance;  ^  his  interest  being  especially  brought 
into  play,  he  is  free  to  give  it  up:  "he  who  does  not  wish  to  does 
not  accept  lease  or  custody."  ^ 

§  195.  Rights  of  the  Guardian.  —  During  the  time  the  lease 
lasted  the  guardian  had  the  rights  of  an  owner.  ^  He  took  the  title 
belonging  to  the  fief,  received  the  homage  of  the  vassals,  could  de- 
mand of  them  the  feudal  services,  exercised  the  rights  of  use  ap- 
pertaining to  the  fief  (for  example,  confiscation  with  the  power  of 
conferring  a  favor  in  its  restitution) ;  ^  he  was  reputed  to  be  the 
vassal  with  respect  to  the  over-lord,  and  reputed  to  be  the  lord  with 
respect  to  the  vassals  of  the  minor. ^  He  collected  for  his  ow^i  bene- 
fit all  the  issues  and  income  from  the  fief.^    All  the  movables  were 

^  Beaumanoir,  15,  5. 

2  This  modification  in  the  Customs  of  the  system  of  the  "mundium" 
seems  to  be  very  old.  It  is  expressed  in  the  formula,  "The  custody  goes  to 
the  ascendants,  the  lease  to  collaterals":  Ragueau,  see  "Garde,"  "Gardien"; 
Ph.  de  Navarre,  20,  22;  J.  d'Ibelin,  c.  168,  169  (fear  lest  greed  should  tempt 
the  guardian  to  defraud  his  ward):  Beaumanoir,  6,  8;  15,  10;  21,  4;  "Et.  de 
Saint  Louis,"  I,  117;  "A.  C,  Artois,"  29,  4;  "L.  d.  Droiz,"  no.  466;  Loysel, 
176  (cites  de  Fortescue).  The  dividing  up  of  guardianship  is  found  in  the  old 
public  law,  less,  perhaps,  with  a  view  of  preventing  usurpation  on  the  part  of 
a  regent  than  because  it  is  difficult  for  the  latter  to  be  occupied  at  one  and  the 
same  time  with  the  education  of  the  king  who  is  a  minor  and  with  the  govern- 
ment of  the  kingdom;  cf.  the  will  of  Louis  XIV  confiding  the  regency  to  the 
Duke  of  Orleans  and  the  custody  of  the  king  to  the  Duke  of  Maine;  Viollet, 
p.  540,  4;  "Const.,"  Sept.  3-14,  1791,  2,  1;  Law  on  Regency  of  Aug.  30-31, 
1842. 

3  With  this  difference,  that  the  lease  cannot  be  divided  up:  Beaumanoir, 
15,  21;  "Jostice,"  p.  221;  "Ass.  de  Jerus.,"  "Clef,  des  Ass.,"  259.  Cf., 
however,  "Blois,"  4. 

«  Loysgl,  179;  Beaumanoir,  15,  3,  4;  "Olim"  II,  240  (in  1284).  But  it  is 
no  more  possible  for  the  guardian  to  deprive  his  family  by  ^"ill  or  sale  than  it 
would  be  for  liira  to  take  away  from  it  a  personal  belonging:  Loysel,  196, 
"Lease  or  custody  cannot  be  transferred  to  another."  Beautemps-Beaiipre, 
IV,  169.  Cf.,  however,  "Norm.,"  215.  The  advantages,  issues  and  revenues 
could  obviously  be  granted. 

*  Only  over  fiefs,  and  not  over  manors  which  might  belong  to  a  minor; 
he  was  not  even  allowed  the  use  of  the  latter:  Beaumanoir,  1.5.  6. 

6  Marthne,  "Ampl.  Coll.,"  1,  1239;  Ragueau,  see  "Bail";  Boutillier,  I, 
93;  II,  15;  Brussel,  I,  29;  Loysel,  191  (buying  back). 

^  However,  "the  guardian  neither  of  property  nor  of  person  can  receive 
tenures  or  lease  them    :  Loysel,  195,  647,  648;  Beaumanoir,  45,  39;  "Paris,"  43. 

8  "Jostice,"  pp.  58,221;  "Gr.  Cout.,"  II,  28  (which  here  contrasts  the 

242 


Topic  14]  GUARDIANSHIP  AND   CUSTODY  [§  19G 

acquired  by  him  as  absolute  owner.^  On  the  other  hand,  he  did  not 
have  the  right  to  dispose  of  the  immovables,  and  in  a  general  way 
he  was  not  permitted  to  do  any  act  which  might  later  on  prevent 
the  minor  from  taking  back  his  fief  and  enjoying  the  benefits  of 
it.^  Bad  administration  on  the  part  of  the  guardian^  laid  him 
open  from  the  thirteenth  century  to  having  surety  demanded 
from  him,'*  or  even  to  losing  the  lease:  ^  "lease  or  custody  may  be 
lost  by  abuse,"  ^  it  was  said  in  the  sixteenth  century,  contrary  to 
the  old  law. 

§  196.  Obligations.  —  In  return  for  the  advantages  which  he 
obtained  from  the  fief  the  guardian  was  held  bound  under  heavy 
obligations:  1st.  To  render  fealty  and  homage,^  to  pay  ransom  ^ 
and  render  all  the  feudal  services  at  his  own  expense.^  2d.  To  pro- 
vide for  all  the  expenses  of  the  child. ^^  3d.  Finally,  to  pay  the  debts 
of  the  deceased,^^  whether  or  not  they  were  greater  than  the  per- 

guardian  of  countries  of  written  law  with  the  Customary  lease).  "Et.  de  Saint 
Louis,"  I,  17;  Beaumanoir,  15,  27  (letting  without  fraud);  "Vermand., 
A.  C,"  280;  "Lorris,"  37.  —  Acquiring  by  the  minor:  cf.  Beaumanoir,  14,  30; 
"Sachsensp.,"  I,  23,  2. 

1  Beaumanoir,  15,  10;  P.  de  Fontaines,  15,  40;  "Gr.  Cout.,"  II,  27;  II, 
41;  I  29;  "Cout.  Not.,"  25;  Boutillier,  I,  93;  Brussel,  I,  218.  This  right 
over  movables  was  taken  away  from  him  Uttle  by  little:  D'Arbois  de  Jubain- 
ville,  1851,  p.  162. 

2  P.  de  Fontaines,  14,  9;  Beaumanoir,  15,  8,  28.  The  binding  (mortgage) 
of  the  fief  is  valid  only  during  the  time  of  the  lease:  lb.,  15,  15;  28,  6.  Dis- 
traint upon  the  fief  because  of  a  tort  of  the  guardian  was  effective  only 
during  the  lease:  lb.,  14,  17.  —  The  forfeiture  of  the  guardian  did  not  carry 
with  it  confiscation  to  the  detriment  of  the  minor:  lb.,  15,  9.  —  The  guardian 
has  no  right  to  make  a  new  tenure  or  to  unmake  one  already  existing,  because 
the  vassal  who  wrongfully  withdraws  from  his  tenure  forfeits  his  fief:  lb.,  45, 
39;  Loysel,  1,  4,  20. 

*  Obhgation  to  keep  the  land  "in  bono  statu":  "Et.  de  Saint  Louis,"  I,  17; 
"Jostice,"  p.  58;  "Gr.  Cout.,"  II,  29;  Beaumanoir,  15,  11  and  12. 

*  Beaumanoir,  15,  12.  Cf.  "Amiens,"  131,  which  gives  the  ward  only  a 
right  to  an  indemnity. 

6  "Et.  de  Saint  Louis,"  I,  27;  "Marche,"  75 ;_  "Melun,"  292. 

^  Loysel,  197:  or  when  the  custodian  remarries:  and  it  is  terminated  by 
the  coming  of  age  or  death  of  the  minor. 

7  "Ass.  deJ(5r.,"  "Geoff,  le  Tort,"  18;  Beaumanoir,  U,  17;  15,3;  Boutaric, 
I,  93;  "Gr.  Cout,,"  II,  29;  "Jostice,"  p.  254;  La  Thaumassihre,  "Cout.  de 
Berry,"  p.  344. 

8  Beaumanoir,  15,  3,  8  (security  for  the  payment);  "Gr.  Cout.,"  II,  32; 
n,  29.  Cf.  D'Arbois,  IS51,U\;  "Ord.,"  1246.  But  the  buying  back  cannot 
take  place  in  the  direct  line:  Beaumanoir,  15,  10;  "Jost.,"  p.  243;  "Gr. 
Cout.,"  II,  27,  p.  291;  Desmares,  194,  206;  Loijsel  191  et  scq.,  195,  199.  If  the 
mother  enters  into  a  second  marriage  the  stepfather  may  buy  back.  The 
guardian  does  not  enter  into  the  transaction  and  does  not  pay  for  the  buying 
back. 

'  Marnier  "A.  C.  de  Picardie  "  p.  7. 

10  Ph.  de  Navarre,  20;  J.  d'Ibelin,  170;  "Et.  de  Saint  Louis,"  I,  121;  Beauma- 
noir, 15,  6;  21,  12;  "Anjou,"  89  (fixed  amount).  Generally  estimation  by 
the  judge.     Cf.  "Wis.,"  4,  3,  3. 

"  The  liabiUties  go  with  the  movable  assets.    Cf.  "Inheritance,"  "Olim," 

243 


§  196]  THE   F-UIILY  [Chap.  I 

sonal  assets  received;  legacies,  which  were  originally  exclusively 
in  personal  property,  were  charged,  as  were  debts  of  personal 
property,  to  the  heir  of  the  personalty,  and,  as  a  consequence,  to 
the  guardian:  ^  "he  who  takes  a  lease,  gives  it  up  free  from  debt."  ^ 

The  lease  ceases  on  principle  at  the  majority  of  the  vassal:^ 
but  it  depends  upon  him  whether  he  will  prolong  it  indefinitely 
by  not  asking  for  the  restitution  of  his  possessions,  and  provided 
that  the  guardian  does  not  compel  him  to  take  them  back.^ 

§  197.  Nobleman's  Custody.  —  In  time,  the  feudal  obligations 
having  disappeared  in  the  same  way  as  military  service,  the  lease 
held  by  collaterals  had  no  longer  any  reason  for  existing.  It  was 
done  away  with  in  many  Customs,  for  example,  in  the  Custom 
of  Paris,^  and  the  only  corresponding  institution  which  one  finds 
during  the  monarchic  period  is  the  nobleman's  custody,  ordinarily 
conferred  on  the  ascendants  alone,  or  even  only  on  the  father  and 
mother.  The  nobleman's  custody  was  only  the  old  lease  preserved 
for  the  benefit  of  this  class  of  relatives,®  who  had  always  enjoyed 
the  custody  of  the  person,  deprived  of  many  of  its  effects,'^  and 
which  had  become  a  privilege  of  nobility.^    Acceptance,  which  was 

II,  95,  240;  Beaumanoir,  15,  3,  4,  10,  16;  "Jostice,"  p.  221;  "Artois,"  29; 
" Jost.,"  pp.  5S,  221;  "A.  C,  Verm.,"  280;  "Ord.,"  1246;  "Gr.  Cout.,"  II,  41; 
Desmares,  185;  "Gout.  Not.,"  25,  28,  100;  Boutaric,  I,  93.  —  The  creditor 
could  proceed  against  the  minor  who  had  come  of  age  only  if  the  guardian 
were  insolvent  or  absent,  or  if  he  himself  were  absent,  or,  again,  if  the  debt 
came  due  after  the  expiration  of  the  lease:  Beaumanoir,  15,  16  to  26. 

^  Beaumanoir,  15,  10;  "A.  G.  de  Picardie,"  p.  7.     Cf.  Boutaric,  1,  93. 

2  Loysel,  186;  Beaumanoir,  36,  14,  16;  15  (I,  244,  ed.  B);  "Gr.  Gout.," 
II,  41. 

^  Other  methods:  Loysel,  197. 

^  Beaumanoir,  15,  14:  implied  prolongation  (without  fraud  to  the  rights 
of  the  lord). 

5  Ferriere  on  "Paris,"  vol.  12;  Guyot,  see  "Garde";  Renusson,  "Tr.  de  la 
Garde  "  1743;  Mesle,  II,  74.     Cf.  Stobbe,  §  119,  IV. 

s  Abandonment  of  the  rule,  "Fiefs  do  not  ascend " :  post,  "Disabilities"; 
Loysel,  184,  "Forfeiture";  "Paris,"  286.  Elimination  by  contract  of  mar- 
riage: Pothier,  no.  45,  etc. 

_'  Thus,  at  least  in  Paris,  he  does  not  render  fealty  and  homage,  for  the 
minor  is  given  some  toleration;  he  does  not  pay  for  the  buying  back:  "A.  G.," 
32;  "N.  G.,"  46.  Exemption  from  registration  fees,  laws  of  Sept.  20  , and 
Oct.  9,  1791.  Whereas  the  guardian  of  the  property  is  a  true  vassal,  the 
nobleman  guardian  is  merely  a  usufructuary  who  is  obliged  to  use  the  prop- 
erty as  a  good  father  of  the  family,  no  longer  gaining  the  movables  and  losing 
his  rights  because  of  misuse. 

8  Contra,  Beaumarioir,  15,  23:  lease  of  commoners  who  had  a  fief.  Con- 
versely, custody  of  the  copyhold  which  belongs  to  a  minor  who  is  a  noble:  lb., 
21,  10.  It  is  the  kind  of  property  which  must  be  taken  into  consideration,  and 
not  the  rank  of  the  person.  —  Cf.  "Gr.  Gout.,"  II,  41;  Pothier,  no.  31:  the 
Customs  confer  nobleman's  custody  only  upon  nobles  and  over  nobles.  Thus 
at  this  time  the  lease  no  longer  depends  upon  the  kind  of  property,  but  upon 
the  rank  of  persons.  It  is  no  longer  regulated  according  to  the  special  capacity 
required  for  the  service  of  the  tief.     Thenceforward  nobleman's  custody 

244 


Topic  14]  GUARDIANSHIP   AND   CUSTODY  [§  197 

still  optional,  for  those  who  had  the  right  to  it,  was  made  in  court.^ 
The  characteristic  which  chiefly  made  nobleman's  custody  similar  to 
the  lease  was  that  it  involved  a  right  of  enjoyment,  but  it  was  less 
extensive;  it  only  affected  the  inheritance  of  the  predeceased 
father  or  mother;  ^  the  possessions  given  or  bequeathed  to  the 
minor,  those  which  had  accrued  to  him  by  way  of  inheritance 
from  ascendants  or  collaterals,  were  not  subject  to  this  usufruct; 
they  were  administered  by  a  guardian  who  did  not  have  the  profits, 
and  who  was,  perhaps,  moreover,  the  nobleman  custodian  himself. 
As  to  the  increase  in  movables,  the  Court  of  Paris  did  not  grant  it 
to  the  custodian,  and,  as  a  consequence,  it  compelled  him  to  make 
an  inventory,^  without  going  so  far  as  to  demand  surety.^  His 
obligations  consisted  in  providing  for  the  support  of  the  minor, 
in  administering  the  property,  and  in  discharging  the  debts;  ■'' 
this  last,  which  it  is  rather  hard  to  justify  in  the  case  where  the 
custodian  had  no  more  personal  property,  was  looked  upon  as 
the  compensation  for  the  advantage  of  having  the  increase  of  the 
income,  A  tendency  to  restrict  the  obligation  of  the  guardian,  as 
far  as  this  matter  is  concerned,  is  noticeable  in  the  jurisprudence, 
and  several  of  the  Customs  did  not  look  upon  it  as  being  held 
"ultra  vires";  in  Paris  and  Orleans  the  nobleman's  guardianship 
was  looked  upon  as  a  sort  of  contract,  under  which  the  custodian 
ran  the  risk  of  losing  or  winning:  he  was  compelled  to  liquidate 
all  the  charges,  even  over  and  above  the  amount  of  his  emolu- 
ment. Differing  in  this  way  from  the  guardian,  the  custodian  did 
not  represent  the  minor;  he  acted  "proprio  nomine,"  because  of 

affects  all  the  property  of  the  minor:  "  Paris."  267.  Cf.  Boutaric,  I,  93,  pp.  526, 
528.  See  " IndivisibiHty  of  the  Lease.  — The  expression,  "Nobleman's 
custody"  had  at  first  nothing  technical  about  it. 

1  "Paris,"  269,  and  Commentaries.  Contra,  "Orlc^ans,"  23;  acquiring 
of  absolute  right  excepting  for  renunciation.  —  Renunciation  is  looked  upon 
by  our  old  jurisconsults  as  being  disadvantageous. 

^  "Tours,"  "Loudun,"  Pothier,  Renusson,  etc.  General  usage,  cf.  "Nov.," 
118,  2.  Contra,  "  Anjou,"  "  Maine,"  Peronne,  Dumouliii,  Bacquet,  De  Lauriere, 
"Paris,  A.  C,"  99  and  100,  "N.  C,"  267,  270,  46. 

'  "Movables  do  not  come  under  guardianship":  for  example,  the  "Cout.  de 
Berry,"  which,  however,  gives  the  movables  to  the  custodian.  Sanction: 
Dumoulin,  on  "Bourb.,"  147;  "Paris,"  240.  Proof  by  means  of  general 
reputation. 

*  Contra:  Beaumanoir,  15,  31;  21,  18;  "A.  C,  Picardie,"  p.  6;  Bou- 
taric, I,  93;  Order  of  1309  ("Ohm"),  Acceptance  at  law  implies  a  general 
mortgage. 

^  Pothier,  no.  86;  Civil  Code,  385,  3  and  4,  Thus,  differing  from  what 
took  place  in  the  case  of  a  lease,  the  minor  was  not  released  as  far  as  his  cred- 
itors were  concerned;  the  latter  could  pursue  him,  but  the  custodian  had 
to  indemnify  him:  "Paris,"  267;  Renwsson,  c.  7;  Fr.  Duranton,  "R.  h.  Dr.,'* 
1858,  47. 

245 


§  197]  THE    FAMILY  [Chap.  I 

his  own  right;  furthermore,  he  could  not  plead  ownership  of  the 
property,  because  he  only  had  the  enjoyment.^ 

§  198.  Plebeian  Custody,  which  we  call  plebeian,^  in  order  to 
distinguish  it  from  nobleman's  custody  and  citizen's  custody,  was 
applied  to  property  which  did  not  belong  to  noblemen :  ^  "in  vil- 
leinage, common  or  plebeian  land  is  not  leased."  ^  And  the  prin- 
cipal difference  between  the  lease  and  the  custody  was  that  the 
latter  did  not  carry  with  it  the  use  of  the  property;  as  the  copy- 
holder had  only  to  pay  a  quit-rent  in  money,  and  not  to  risk  his 
life,  as  did  the  vassal,  there  was  no  reason  to  grant  him  so  great 
an  advantage.  At  an  early  period,  no  doubt,  plebeian  custody 
had  lost  the  usufructuary  character  of  the  old  guardianship.^ 
When  the  lease  became  changed  into  nobleman's  custody,  plebeian 
custody  was  conferred  less  by  reason  of  the  nature  of  the  property 
than  of  the  grade  of  the  persons;  it  had  to  do  with  plebeians  over 
plebeians.  The  nearest  relative  of  the  minor  ^  took  the  custody 
of  his  person  ^  and  administered  his  goods;  ^  he  did  not  have  the 
use  of  them,^  had  no  right  to  movables  nor  credits,  must  set  aside 
the  issues  and  income,  did  not  pay  the  debts,  and  was  held  to  ac- 
count for  the  property  and  had  to  give  surety .^°    Plebeian  custody 

1  Pothier,  no.  73;  "  Paris,  N.  C,"  270.  A  guardian  or  a  custodian  is  named 
for  the  lawsuits  of  the  minor.  Costs:  the  guardian  advances  them  accord- 
ing to  the  custom  of  the  Chatelet.     Civil  Code,  613. 

2  Cf.  Beaumanoir,  c.  15,  16,  21;  "A.  C,  Verm.,"  289;  Glasson,  VII,  198; 
"Garde  Simple";  Pollock  and  Maitland,  I,  302:  " Guardiansliip  in  Socage"; 
Glanville,  7,  9;  Bracton,  fo.  86. 

'  Belonging  to  noblemen  or  persons  who  were  not  noblemen:  Beaumanoir , 
15,  4;  Naples  adage:  "baillius  in  feudis,  tutor  in  burgensaticis." 

4  Loysel,  189;  Beaumanoir,  15,7,  23;  "Et.  de  Saint  Louis,"  II,  18;  "Or. 
Cout.,"  II,  "De  Garde."  —  If  the  survivor  of  the  spouses  and  the  minor  lived 
together:  Beaumanoir,  15,  10  (continuation  of  the  community),  wliich  ia 
only  possible  among  commoners,  there  can  be  no  question  of  custody:  Ibid., 
21,  9,  10,  23;  15,  7.  —  Mesle,  II,  115.  —  In  German  law  cf.  " Interimswirth- 
schaft"  of  the  "Bauerngiiter,"  Stobbe,  §  135. 

^  Cf.  the  "sponderagium"  of  the  Custom  of  Toulouse  (from  "spondere"). 
The  "spondarius"  or  testamentary  guardian  does  not  make  any  inventory, 
does  not  furnish  any  surety,  is  believed  upon  his  own  oath  on  the  subject  of 
the  administration  of  the  guardianship,  can  sell  the  property  of  the  minor 
after  having  advertised  the  fact  three  times.  Reforms  of  the  "Arrestum 
Sane,"  written  at  the  end  of  the  manuscript  of  the  "Coutume  de  Toulouse," 
ed.  Tardif.,  Pollock  and  Maitland,  303:  the  Provisions  of  Merton  compel  the 
guardian  to  render  an  account. 

8  Whether  paternal  or  maternal,  whether  the  property  comes  from  the 
father  or  the  mother:  Beaumanoir,  15,  32  (case  of  exclusion);  16,  16,  17.  Cf. 
21,  18. 

^  Torts  of  the  minor:  Beaumanoir,  21,  20,  21. 
^  Beaumanoir,  15,  12,  7,  10. 

9  Id.,  14,  30;  21,  14;  15,  6. 

1"  Id.,  15,  5,  7,  12:  to  the  relatives,  or  to  the  lord  justice  if  the  relatives  do 
not  demand  it;  cf.  21,  18;  Boutaric,  I,  93. 

246 


Topic  14]  GUARDIANSHIP   AND   CUSTODY  [§  200 

was  similar,  however,  to  the  lease  in  that,  like  the  latter,  it  was  not 
compulsory;  ^  Pothier  maintains,  however,  that  the  Customs  vary, 
and  that  there  was  a  tendency  to  compel  the  acceptance  of  the 
custody.  In  every  other  respect  this  institution  was  scarcely  more 
than  a  proprietary  guardianship  under  a  Customary  name.  It 
terminated,  as  did  nobleman's  custody,  by  reason  of  majority  or 
marriage,^  abuse  of  its  enjoyment,^  or  the  second  marriage  of  the 
surviving  spouse.^ 

§  199.  Citizen's  Custody,^  a  remarkable  survival  of  usufruc- 
tuary guardianship,  the  origin  of  which  our  old  authors  mistakenly 
attributed  to  Avritings  of  Charles  V  in  1371,^  was  a  sort  of  noble- 
man's custody  without  feudal  obligations,  for  the  benefit  of  the 
citizens  of  the  town  and  suburbs  of  Paris  alone.^  It  only  be- 
longed, at  least  in  the  sixteenth  century,  to  the  survi\dng  father 
or  mother,^  and  never  to  the  grandparents.^  It  conferred  the  en- 
joyment of  the  possessions  of  the  minor,  but  not  the  ownership 
of  movables,  and  it  ceased  at  the  majority  of  the  minor,  which 
majority  was  not  the  same  as  in  the  case  of  noblemen. 

§  200.  Modern  Guardianship.^"  —  Excepting  for  a  few  traces  of 
the  old  family  laws  and  feudal  legislation,  we  have  arrived  at  the 

1  Id.,  15,  7,  9  (comparison),  29. 

2  Desmares,  249;  "Gr.  Gout.,"  II,  12;  Beaumanoir,  15,  29.  Cf.  "Coming 
of  Age,"  "Emancipation." 

'  According  to  Beaumanoir,  15,  12,  the  lord  demands  only  guarantees. 

«  See  "Modification  of  the  old  law":  "Paris,  A.  G,"  99,  100;  "A.  G., 
Verm.,"  289.     "A  fortiori"  misconduct  of  the  widow. 

6  Ferriere  on  vol.  XII  of  the  "Gout,  de  Paris,"  and  authors  cited;  Guyot, 
see  "Garde  Noble";  MesU,  II,  94,  107;  Cauwes,  "Gr.  Encycl.,"  see  "Bail." 

«  Ferriere,  see  "Garde";  Aug.  9th.  Others,  July  3d:  "Ord.,"  V,  418. 
Cf.  Isambert,  VI,  688  (letters  of  Gharles  VI,  of  the  5th  Aug.,  1390);  Glasson, 
VII,  201,  mentions  two  Ordinances  of  Gharles  VI,  of  1399  and  1409.  Cf. 
Chopin,  on  "Paris,"  I,  2;  "Paris,"  265. 

^  "Gout.  Not.,"  157:  plebeian  custody  within  the  jurisdiction  of  the 
Provost  and  the  jurisdiction  of  the  Viscount  of  Paris:  "Paris,  A.  C.,"  101; 
"N.  G.,"  266.  Viollet,  p.  5,36,  3,  cites  a  "Style  du  Ghatelet"  (French  Ms.), 
1076,  fo.  22:  "ascendants  have  in  Paris,  but  only  in  the  suburbs,  the  custody 
of  plebeians;  they  take  the  profits  themselves,  do  not  pay  the  debts  and  do 
not  keep  up  the  inheritance."  Cf.  "Gr.  Gout.,"  II,  41,  also  a  few  Gustoms, 
for  example,  "Galais." 

8  "Gr.  Gout.,"  II,  41  (p.  373  et  seq.);  "Paris,  N.  G.,"  269;  surety  in  every 
case. 

9  Cf.  Roman  usufruct  of  acquired  property  and  Givil  Gode,  386. 

1"  See  the  authors  of  Institutes,  Pothier,  Bourjon,  etc.,  and  special  treatises 
such  as  those  of  Ferribre  and  Mesle:  Masuer,  see  "L.  d.  Droiz,"  61.  Order 
'  of  Lamoignon,  title  of  Guardianship,  Edict  of  December,  1732.  Regula- 
tions as  to  guardianship  in  Brittany  {Mesle,  II,  259).  As  to  Normandy,  cf. 
Order  of  Regulation  of  the  Parliament  of  Rouen,  1673:  Cauvet,  "Obs.  s.  le 
R6gl.  des  Tutelles,"  1777;  Cauvet,  "R.  de  L6g.,"  32,  100.  Flanders:  Deghe- 
wiet,  p.  67.  Lombardy:  Lattes,  "Dir.  Gonsuet.,"  275.  Sicily:  Brunneck, 
"Sicil.  Stadtr.,"  69. 

247 


§  200]  THE    FAMILY  [Chap.  I 

Roman  conception  of  guardianship;  ^  it  is  a  public  duty  regulated 
in  the  interest  of  the  minor.^  This  is  a  remarkable  evolution;  and 
for  its  realization  nothing  less  sufficed  than  the  disintegration  of 
the  old  family,  the  weakening  of  the  rights  of  the  parents,  the 
expansion  of  the  prerogatives  of  the  State,  and  the  introduction 
into  procedure  and  the  civil  law  of  the  new  principle  of  repre- 
sentation.^ The  changes  which  it  results  in  bear:  1st,  on  the 
appointment  of  the  guardian;  2d,  on  the  control  of  his  adminis- 
tration; 3d,  on  the  capacity  of  the  minor.  All  these  matters 
converge  towards  a  more  complete  and  enlightened  protection  of 
the  minor. 

§  201.  In  France  every  Guardianship  is  Appointive.^  —  Where 
there  is  no  lease  or  custody,  or,  even,  concurrently  with  lease  or 
custody,  it   is   necessary   to   name   a   guardian  for  the   minor. 

^  Which  does  not  mean  to  say  that  the  Roman  laws  have  purely  and  simply 
been  put  back  in  force.  Astruc  brings  out  very  clearly  the  differences  which 
exist  between  these  laws  and  the  old  practice.  But  a  great  deal  has  been 
JDorrowed  from  the  Roman  law.  On  the  other  hand,  in  Germany,  in  spite  of 
its  being  copied  after  the  Roman  institution,  guardianship  is  especially  a 
Customary  institution:  Heusler,  II,  508.  Stobbe,  IV,  451,  12,  establishes  the 
fact  that  usufructuary  guardiansliip  had  disappeared  before  the  Roman  law 
was  received:  "Schwabenspiegel,"  II,  52.  As  to  how  it  came  about  that  a 
distinction  was  no  longer  made  between  guardianship  and  custody,  cf.  Stobbe, 
§  264.     Post,  "Custody":  "guardian  and  custodian  are  one." 

2  One  can  say  that  in  the  fourteenth  century  the  idea  of  protecting  the 
minor  was  the  all-important  thing;  from  that  time  on  it  entered  more  and 
more  into  legislation  and  practice.  —  A  salary  paid  to  the  guardian:  Stobbe, 
IV,  452  (Act  of  1443).  —  The  "Const.  Sic,"  III,  30,  compels  the  guardian  to 
render  an  account.  In  Sardinia  usufructuary  guardianship  did  not  disappear 
until  1827:  Fertile,  III,  405. 

^  It  was  especially  in  the  towns  that  it  came  into  existence  first  of  all;  the 
communities  such  as  those  referred  to  in  "M.  G.  H.,  S.  S.,"  XX,  792,  which 
were  composed  of  fifty  persons,  are  no  longer  found  excepting  in  the  country. 

*  Loysel,  181,  183;  Astruc,  p.  26:  even  in  countries  of  written  law. 
Guardianship  which  is  by  appointment,  that  is  to  say,  conferred  by  public 
authority,  has  been  granted  sometimes  by  the  judge,  sometimes  by  the  town 
councils;  in  France  the  conferring  of  guardianship  is  reserved,  during  the 
monarchic  period,  to  judges  alone.  The  three  kinds  of  Roman  guardianship, 
proprietarv,  testamentary,  and  conferred,  coexisted  as  an  exception  among 
certain  of'the  Customs:  "Bourb.,"  "Auv.,"  "Niv.,"  etc.;  "Orl,"  28,  178. 
Cf.  "Flandre,"  "Hainaut,"  "Boule,"  Britz.  So  that  Lamoigne  is  com- 
pelled to  write  in  his  "Arr.  Tut.,"  2:  "Let  us  do  away  with  testamentary, 
proprietary,  customary  and  natural  guardianships."  Similarly  in  foreign 
countries  the  Roman  distinction  is  often  met  with:  Stobbe,  IV,  436.  In 
Germany,  however,  the  Ordinances  of  1548  and  1572  forbade  the  investiture 
of  a  guardian  by  means  of  a  decree.  —  England:  guardianship  of  the  father 
and  the  mother  and  the  ascendants;  these  are  the  natural  guardians;  the 
father  does  not  have  the  legal  enjoyment  of  the  property  of  his  children;  he 
is  the  proprietary  administrator  of  it  and  is  held  to  account.  The  "Siete 
Part."  distinguish,  as  do  the  Roman  laws,  between  three  sorts  of  guardianship. 
It  is  the  same  in  Italy:  Fertile,  III,  4i0:  guardianship  by  contract,  —  for 
example,  by  contract  of  marriage:  Kraut,  I,  263.  —  "Schwabenspiegel,"  I,  58; 
II,  116;  "R.  h.  Dr.,"  165;  Chassan.,  on  "Bourg.,"  ed.  1552,  p.  853. 

248 


Topic  14]  GUARDIANSHIP   AND    CUSTODY  [§  201 

Guardians  by  birth  are  no  longer  found;  the  appointment  is  made 
in  an  assembly  of  relatives  summoned  before  the  judge  at  the 
request  of  the  most  nearly  related  of  them;  the  guardian  is  chosen, 
on  principle,  among  the  relatives  summoned;  but,  as  it  is  neces- 
sary that  he  be  a  fit  person  (intellectually  and  morally),  capable 
and  satisfactory  (possessions),  the  assembly  has  large  discretionary 
powers  and  can  bring  its  choice  to  bear  on  a  distant  relative;  ^  if 
there  are  no  relatives,  a  neighbor  or  a  friend  is  designated.  The 
judge  gives  the  guardian  named  by  the  relatives  his  authority  by 
means  of  a  decree.^  Testamentary  guardianship  has  disappeared, 
as  well  as  proprietary  guardianship,  in  the  countries  of  written 
law,  as  well  as  in  the  countries  of  Customs;  this  is  not  because 
no  attention  is  paid  to  the  appointment  made  by  the  father,  and 
even  the  mother,  in  their  wills;  but  confirmation  by  the  judge  is 
always  necessary  in  the  preceding  forms,  and  it  is  from  this  that 
the  guardian  derives  his  powers.'''  On  principle,  guardianship 
could  not  be  given  to  women;  there  is  no  exception,  unless  in 
the  case  of  the  mother  and  grandmother,  who,  in  countries  of 

*  Masuer,  5,  17,  still  shows  us  the  preference  which  was  formerly  given 
to  the  paternal  relatives.  As  to  maternal  relatives,  cf.  "Schwabensp.,"  59; 
Kraut,  I,  170.  —  Near  relatives  who  do  not  ask  for  the  appointment  of  a 
guardian  are  deprived  of  the  inheritance. 

2  As  to  this  procedure,  cf.  for  more  details  Astruc,  p.  45,  and  authors  cited: 
Pothier,  etc.;  Masuer,  loc.  cit.;  Imbert,  "Enchir.,"  see  "Tutela";  Rebuffe, 
"De  Sent.  Prov.,"  2,  2,  6.  —  Responsibility  of  the  relatives  who  make  the 
appointment  in  the  South,  in  Normandy:  "Dissens  Domin.,"  p.  65.  —  Italy: 
as  to  the  choice  of  relatives  for  guardians  cf.  Fertile,  III,  408. 

3  Pothier,  on  "Orl.,"  183;  "Pers.,"  no.  145;  Prevot  de  la  Janes,  1,  16. 
There  are  some  Customs,  however,  in  which  it  has  been  introduced. 
"Bourges"  in  the  twelfth  century:  "Ord.,"  I,  22;  "  Bourb.,"  177;  "Auv.," 
11,  1;  "Niv.,"  30,  1;  D'Arbois  de  Jubainville,  "R.  de  Leg.,"  I,  295  (unpublished 
document).  Assise  of  Count  Geffroi,  3  (feudal  origin?);  "L.  d.  Droiz,"  420, 
896;  Masuer,  5,  3,  4;  Beautemps-Beaupre,  "Liger,"  785.  Opposition  by 
proprietary  guardians  (Act  of  1349,  Burg.).  In  Italy  and  in  Germany  we 
find  testamentary  guardians  at  a  very  early  period.  At  Milan,  in  1152:  cf. 
"Consuetud.,"  8  (in  1216):  "tut.  testamentarii,  legitimi,  dativi."  "Fri- 
bourg,"  34;  "Schwabensp.,"  65,  22.  Act  of  1273  (cited  by  Heusler,  II,  499) 
according  to  which  agnates  renounced  their  right  of  guardiansliip  at  the  same 
time  as  the  father  named  a  guardian:  Stobbe,  IV,  436;  Kraut,  I,  202.  Testa- 
mentary executors  are  often  at  the  same  time  guardians:  "MontpeUier," 
1205,  7  ("gladiatores");  cf.  "Toulouse,"  5,  8,  49,  160  ("si)ondarius,"  surety, 
testamentary  guardian).  —  Testamentary  guardianship  is  also  met  with  in 
England  (where  the  father  may  give  up  his  natural  rights  to  the  guardianship), 
anfl  in  Spain.  In  countries  of  written  law  the  authors  seem  to  disagree  {Argou, 
Boutaric,  Serves,  etc.);  we  must  abide  by  Astruc's  formula,  which  explains 
their  divergences  of  opinion,  p.  26:  "Unlimited  confidence  is  shown  in  the 
appointment  of  guardians  which  fathers  have  made  in  their  wills;  but,  as  it 
is  necessary  that  testamentary  guardians  should  have  their  appointments 
confirmed  by  the  judge  and  should  take  an  oath  before  him,  it  is  sufficient  if 
we  look  upon  them  as  having  their  guardianship  conferred  upon  them."  Id., 
"Reims,"  329;  "Auxerre,"  258,  etc.;  Edict  of  1732  (Brittany).  Cf.  "Alais," 
19;  "R.  h.  Dr.,"15,  161. 

249 


§  201]  THE   FAMILY  [Chap.  I 

written  law,  and  in  several  Customs,  are  looked  upon  as  lawful 
guardians.^  Excepting  in  cases  where  there  is  a  proprietary  ex- 
cuse, guardianship  cannot  be  refused.^ 

§  202.  Powers  of  the  Guardian.  —  (A)  Over  the  person  of  the 
minor.  As  the  guardian  takes  the  place  of  a  father  to  the  minor, 
his  powers  are,  upon  principle,  the  same  as  those  of  the  father,  but 
with  restrictions  (correction,  consent  to  marriage).^ — (B)  Over 
possessions.  The  guardian  represents  the  minor  under  all  condi- 
tions ("factum  tutoris,  factum  pupilli")  ^  in  everything  which 

1  The  Guardianship  of  the  Mother  and  of  the  grandmother  date  back  to 
the  Lower  Empire:  "Cod.  Just.,"  5,  35,  2;  30,  4.  C/.  "Auth.,"  "Matri  et 
Avise,"  "Nov.,"  118,  5,  and  "Sacramentum,"  "Nov.,"  94,  2;  "L.  Rom. 
Wis.,"  "Cod.  Theod.,"  17;  "Nov.  Theod.,"  II,  5;  Papien,  36,  4;  "Petrus," 
I,  3.  They  are  to  be  found  already  in  the  laws  of  the  Burgundians  and  the 
Visigoths:  "Salis,"  "Z.  S.  S.,"  18S4,  p.  150;  "Siete  Part.,"  6,  16,  4.  Italy: 
Fertile,  III,  409.  This  form  of  guardianship  is  perfectly  consistent  under 
a  legislation  wherein  guardianship  is  entirely  in  favor  of  the  minor,  —  all 
the  more  so  because  the  mother  and  the  grandmother  have  his  interests  at 
heart.  In  countries  of  written  law  they  are  legal  guardians,  but  guardianship 
is  not  imposed  upon  them;  if  they  wish  to  undertake  it  they  are  not  held 
bound,  as  in  Rome,  to  give  up  any  idea  of  a  second  marriage  ("Auth.,"  "Sac- 
ramentum.") and  the  advantage  given  by  the  Velleianum  Decree  of  the 
Senate:  Bugnyon,  I,  94.  If  they  do  remarry,  it  depends  upon  the  relatives 
and  the  judge  as  to  whether  the  guardianship  shall  be  conferred  upon  them; 
but  when  they  do  so  without  providing  the  minor  with  a  guardian,  they  lose 
the  guardiansliip  of  him  and  his  inheritance  at  one  and  the  same  time.  Mis- 
conduct on  the  part  of  the  widow  also  causes  her  to  lose  the  guardianship. 
In  countries  of  Customs,  the  same  rules  are  generally  applied,  but  the  guardian- 
ship of  the  mother  and  that  of  the  grandmother  are  by  appointment:  cf.  "  Arr. 
de  Lam.,"  "Tut.,"  20;  Beaumanoir,  21,  8,  21,  24,  shows  us  the  mother  who 
survives,  at  the  head  of  the  community  which  continues  to  exist  after  the 
death  of  the  father;  in  a  case  of  this  sort  there  is  no  occasion  for  guardianship: 
cf.  16,  7;  Heusler,  §  50;  Viollet,  pp.  641-673.  It  may  also  happen  that  she 
already  has  the  lease  or  the  custody  of  the  child  under  age.  In  the  final 
stages  of  the  law  the  Custom  of  Paris  still  confers  nobleman's  custody  and 
citizen's  custody  upon  the  mother.  "R.  h.  Dr.,"  15,  163:  Statutes  of  the  fif- 
teenth century  in  which  the  relatives  give  the  guardianship  to  the  brother, 
to  a  stranger  in  the  presence  of  the  mother  who  has  not  remarried.  —  English 
law :  the  mother  becomes  guardian  of  absolute  right  if  there  is  no  testamentary 
guardian:  Schroeder,  p.  733.  —  Bastards:  Mesle,  I,  192;  II,  288,  295;  Ferriere, 
"Tut.,"  p.  24. 

2  Beaumanoir,  16,  3;  Boutaric,  "Inst.,"  I,  25;  Astruc,  p.  119,  etc.;  "Siete 
Part.,"  6,  17;  "Mantoue,"  thirteenth  century,  II,  57:  "nullus  compellatur 
tutelam  et  curam  alicujus  accipere";  "Aoste,"  II,  2,  30,  excludes  from  the 
inheritance  of  the  ward  a  person  who  refuses  the  guardianship  without  any 
reason. —Disabilities:  "L.  d.  Droiz,"  916;  "T.  A.  C,  Bret.,"  67;  "Const. 
Leg.  Pis.,"  21;  "Schwabenspiegel,"  I,  58;  Schroeder,  p.  733;  Stohhe,  IV,  442. 

'  As  to  the  education  of  wards,  cf.  Astruc,  p.  86.  —  Stohhe,  §  268;  "Bail  k 
Nourriture"  (Burgundy,  Champagne,  Lorraine):  a  third  party  takes  it  upon 
himself  to  support  the  ward  in  return  for  a  certain  sum  of  money;  the  guardian 
must  obtain  the  opinion  of  the  relatives  before  making  such  a  contract  as 
this ;  the  abuses  to  which  it  gave  rise  compelled  the  Parliaments  to  intervene : 
Ferriere,  see  "Encycl.  Method." 

*  As  to  representation  at  law  cf.  Stohhe,  §  268,  II.  England:  the  minor 
can  begin  an  action  in  the  name  of  his  guardian  or  in  the  name  of  his  "  prochein 
amy"  (any  one). 

250 


Topic  14]  GUARDIANSHIP  AND   CUSTODY  [§  203 

concerns  administration,  "domini  loco  habetur."  ^  But  his  power 
does  not  extend  to  voluntary  alienations  of  immovables.^  He 
would  be  responsible  for  his  maladministration,  responsible  if  he 
took  an  important  step  without  notifying  the  relatives  (actions),^ 
if  he  disposed  of  the  immovables  without  the  required  conditions 
(necessity  established  by  law  after  giving  notice  to  the  relatives, 
and  sale  by  judicial  proceedings).^ 

§  203.  Guarantees  in  the  Interest  of  the  Minor. ^  —  Some  are 
moral,  like  the  taking  of  an  oath; "  otl^iers,  material,  such  as  the 
making  out  of  an  inventory,^  the  rendering  ^  of  accounts,  the  im- 

1  Dig.,  26,  7,  27;  Pothier,  "Pers.,"  162  et  seq.  He  does  not  give  his 
"auctoritas  "  to  the  ward,  as  he  does  in  Rome,  but  if  the  ward  acts  with  the 
assistance  of  a  guardian  it  is  just  as  though  the  guardian  had  acted  alone. 
He  pleads  in  the  name  of  the  ward:  Beaumanoir,  III,  18;  XII,  45;  XVII,  6, 
and  on  this  subject  "Const,  du  Chat.,"  2;  Loysel,  187;  Isambert,  IV,  385;  I, 
186;  cf.  "Siete  Part.,"  6,  16,  17. 

2  "T.  A.  C,  Norm.,"  7,  4;  "Artois,"27,  15. 

'  Custom  of  having  a  judge  tax  the  ward's  expenses.  Employment  of  the 
ward's  funds  upon  consulting  the  relatives  and  an  order  from  the  judge  (leases 
at  interest  in  Orleans  until  1726)  under  penalty  of  involving  the  responsi- 
bility of  the  guardian  (Pothier,  "Pers.,"  no.  176),  for  example,  100  "pLstoles" 
or  more.  Stobbe,  IV,  461,  cites  the  "Briinn.  Schoeffenb.,"  144:  "Non  est 
necessitas  curatoribus  minorum  pecunias  foenerare"  (fear  of  losing  the  capi- 
tal), "sed  caute  reponere  et  servare."  "Munich,"  421:  deposit  in  the  hands 
of  the  town  council,  who  pay  interest  at  the  rate  of  ten  per  cent.  Leases  of 
six  and  ten  years,  according  as  the  property  is  in  the  city  or  in  the  country: 
Mesle,  I,  151;  "T.  A.  C,  Bret.,"  75.  Loans:  Ferriere,  "Tut.,"  p.  237; 
"R.  h.  Dr.,"  15,  184. 

*  Desmares,  12;  P.  de  Fontaines,  165  (transaction);  cf.  p.  83;  "Gr.  C.  de 
Fr.,"  p.  370;  "T.  A.  C,  Bret.,"  71;  "Toulouse"  5,  100;  Lamoignon,  I,  85; 
Mesle,  191;  Ferriere,  "Tut.,"  228,  355;  Guyot,  Ferriere,  "Diet.,"  see  "Aliena- 
tion"; "Ord.,"  1667,  33,  13;  Britz,  p.  567,  "Siete  Part.,"  6,  16,  18.  On  the 
German  law,  cf.  Stobbe,  IV,  462  (case  of  necessary  alienation,  "echte  Noth"): 
the  Ordinances  of  1548  and  1577  required  a  decree  for  an  aUenation  to  be 
legal:  Fertile,  III,  402. 

*  Abuses  in  the  South,  where  guardians  allowed  the  property  of  minors 
to  become  dilapidated.  The  Ordinances  of  the  Reforms  in  Languedoc, 
known  under  the  name  of  "Arrestum  Sane,"  and  inscribed  at  the  end  of  the 
"Coutumes  de  Toulouse,"  must  have  remedied  this  by  providing  for  oaths, 
sureties  and  inventories:  Casavet.,  fo.  70;  Tardif,  "Droit  Priv6  au  XIIP  s.," 
p.  42  "Jostice,"  p.  69,  79  (supervision  of  the  bailiffs  over  guardians  and  cus- 
todians).    Cf.  Beaumanoir,  XV,  12  (lease  and  custody). 

8  Surety  by  oath:  Masuer,  5,  17,  31;  "Siete  Part.,"  6,  19,  9. 

^  Mesle,  I,  107.  A  practice  which  went  out  of  existence  before  this  time. 
Appraisal  in  Scandinavian  law:  Stobbe,  IV,  456.  —  "Ass.  de  Jerus.,"  "C. 
des  B.,"  .53;  "L.  d.  Droiz,"  921  (dispensations). 

8  In  thi,s  we  find  a  revival  of  Roman  practices.  Sale  of  perishable  mov- 
ables: "Ord.  d'Orleans,"  102;  "Arr.  de  Lam.,"  69;  "Ord.,"  1667,  title,  "Ac- 
counts"; "Toulouse,"  49,  40,  42;  Stobbe,  IV,  460.  Nullity  of  grants  for  the 
benefit  of  the  guardian,  and  of  agreements  with  him:  MesU,  I,  290;  Ferribre 
on  "Paris,"  170;  Henrys,  I,  1;  "Paris,"  Art.  276.  Ten  years'  prescription 
with  respect  to  agreements  as  to  the  rendering  of  accounts.  Stobbe,  IV,  457: 
in  Germany  annua!  accounts  are  rendered  to  the  family  or  to  the  public 
authorities.  Britz,  p.  567:  every  year,  every  two  years.  In  France  under 
the  Roman  influence  the  rendering  of  accounts  takes  place  only  when  the 
guardiansliip  comes  to  an  end:  Ferriere,  see  "Compte";  "Acte  de  Notor.  du 

251 


§  203]  THE  FAMILY  [Chap.  I 

plied  mortgage  on  the  possessions  of  the  guardian;  ^  towards  the 
sixteenth  century  this  mortgage  took  the  place  of  the  pledge  and 
surety.^  In  countries  of  Custom  the  ward  is  always  given  a  sub- 
rogated guardian;  this  is  the  custodian  of  countries  of  written  law 
become  permanent;  ^  he  is  named  once  for  all,  instead  of  appoint- 
ing a  new  one  each  time  it  becomes  necessary;  he  intervenes  in 
case  there  is  a  conflict  of  interests  between  the  minor  and  the 
guardian;  ^  he  is  charged  wdth  watching  over  the  drawing  up  of 
the  inventory;  he  calls  together  the  reunion  of  the  assemblies  of 
relatives  in  order  to  discharge  the  guardian  who  embezzles.^  The 
action  of  the  relatives  ^  in  this  case,  as  in  that  of  the  naming  of  a 
guardian,  is  collective;  it  is  also  collective  when  the  guardian 
takes  their  opinion  on  an  important  step,  for  example,  with  re- 

21  Mars,  1699."  Cf.  as  to  Normandy,  "R.  de  Leg.,"  32, 102:  the  family  council 
may  compel  the  guardian  to  render  an  account  every  three  years  and  to  join 
with  liim  two  relatives  and  three  jurisconsults  whose  opinion  he  must  take; 
responsibility  of  the  relatives  making  the  appointment  just  as  in  the  South: 
Ferriere,  "Tut.,"  p.  322. 

^  Same  in  Flanders:  Britz,  p.  569;  Ferriere,  "Tut.,"  p.  404. 

2  As  to  the  giving  of  surety,  cf.  Stobbe,  IV,  4.57.  Boutaric,  1,  24,  estab- 
lishes the  fact  that  the  custom  of  giving  surety  was  lost:  "Jostice,"  p.  88; 
"L.  d.  Droiz,"  1008;  "T.  A.  C,  Bret.,"  69  (will  pledge  himself  and  what  is 
his);  Masuer,  5,  2,  1;  "Toulouse,"  5;  "R.  h.  Dr.,"  15,  170  (surety  given  by  the 
mother).  Rebuffe,  "De  Seiit.  Exec,"  I,  16,  37;  on  the  law  "De  Great.," 
"Cod.  Just.,"  "de  epaud.":  in  the  case  of  relatives  surety  sworn  to  is  deemed 
sufBcient.  —  "  Const.  Leg."  of  Pisa,  21 :  delay  of  two  years  before  the  guardian 
is  relieved  of  all  responsibiUty  towards  the  ward. 

^  Lamoignon  calls  him  custodian  or  subrogated  guardian.  Serres,  "Inst.," 
I,  13,  5,  almost  confuses  them.  This  guardian  is  subrogated  to  the  ordinary 
guardian,  —  that  is  to  say,  he  takes  his  place:  "Stil.  Pari.,"  7,  147  ("tutor 
ad  actiones  subrogatus " ) ;  Bouhier,  I,  475:  "Toulouse,"  6.  As  his  respon- 
sibility is  limited  and  he  takes  absolutely  no  part  in  the  administration  of  the 
property,  he  does  not  have  to  render  any  account,  he  is  not  held  secondarily 
liable  for  the  administration  of  the  guardian :  Loiiet,  "T.,"  13;  "Arr.  deLam.," 
"Tut.,"  12;  Britz,  p.  566.  —  Roman  rule:  "habenti  tutorem  non  datur  ahus," 
is  contra:  "Siete  Part.,"  6,  16,  13.  Acting  guardian  for  property  situated  in 
the  colonies,  Declaration  of  Dec.  15,  1721,  and  Feb.  1,  1743.  Splitting  up  of 
guardianship  for  persons  of  quality:  honorary  guardian  and  acting  guardian. 
It  is  the  same  in  Germany,  where  the  guardian  who  has  charge  of  the  person 
of  the  ward  is  often  a  proprietary  guardian,  whereas  the  one  who  adminis- 
ters the  property  is  an  appointed  guardian. 

*  If  there  is  no  subrogated  guardian  a  guardian  "ad  hoc  "  is  named :  "  T.  A.  C., 
Bret.,"  79. 

6  "T.  A.  G.,  Bret.,"  178;  Fertile,  III,  411;  "Siete  Part.,"  6,  18. 

^  On  the  action  of  the  family  in  Germany,  cf.  Stobbe,  IV,  444;  in  Italy: 
Fertile,  III,  403.  —  During  the  whole  of  the  Middle  Ages  the  intervention 
of  the  relatives  is  frequent  and  takes  place  in  a  great  number  of  cases:  "God. 
Th^od.,"  9,  13,  1;  "Tac,"  19;  "Roth.,"  189,  etc.;  "Arrestum  Sane,"  Viollet, 
p.  46,5;  Langlois,  "These,"  1884;  Mesle,  Table,  see  "Avis  des  Parents."  — 
On  principle,  the  women  do  not  take  part  in  these  assemblies:  Mesle,  I,  86.  — 
Fothier,  "Pers.,"  151,  172  (the  alienation  of  an  inheritance  in  order  to  avoid 
a  distraint).  Argou,  I,  48;  Foullain  du  Fare,  I,  233.  Beaumanoir,  loc.  cit., 
already  declares  that  the  guardian  should  give  security  to  the  judge  or  to  the 
friends  of  the  minor:  "L.  d.  Droiz.,"  807. 

252 


Topic  14]  GUARDIANSHIP   AND   CUSTODY  [§  204 

gard  to  the  investment  of  the  funds  of  the  ward.^  But  the  term 
family  council  is  not  made  use  of,^  and  the  manner  of  organiza- 
tion of  these  assembhes  of  relatives  is  not  very  well  settled.^ 

§  204.  The  Revolutionary  Law,  in  its  attempt  to  render  the 
family  democratic,  organized  assemblies  of  relatives  which  were 
really  like  domestic  tribunals.^  Disputes  between  members  of  the 
family  (spouses,  children,  near  relatives)  were  submitted  in  the 
first  instance  to  four  relatives  or  friends  chosen  by  the  parties; 
thus  they  thought  to  assure  domestic  tranquillity  without  ex- 
pense. An  assembly  of  relatives,  or  friends  and  neighbors,  at 
least  six  in  number,  pronounced,  at  the  request  of  the  relatives  or 
the  guardian,  upon  the  subject  of  the  placing  of  minor  children  in 
a  house  of  correction.  Finally,  another  assembly  (whose  compo- 
sition varied)  was  called  to  deliberate  upon  the  marriage  of  minors.^ 
These  rather  unfortunate  innovations,  because  of  the  lack  of  co- 
hesion between  relatives,  did  not  all  last,  but  they  led  to  the  sys- 
tem of  the  Civil  Code,  wherein  the  family  council  occupies  an 
important  place  corresponding  to  that  which  is  given  in  Germanic 
countries  to  the  judicial  or  administrative  authority  (tribunal  of 
guardianship,  college  of  wards),  and  which  appears  to  be  more  in 
conformity  with  the  actual  condition  of  Customs.®    Guardianship 


1  Edict  of  Guardianships,  1732,  Art.  17  (Brittany) :  MesU,  II,  p.  259. 

2  These  assembhes  of  relatives  should  be  distinguished  from  the  Council 
of  Guardianship;  by  the  latter  is  meant  a  lawyer  named  by  the  Sentence  of 
Prohibition  or  the  deed  which  appoints  a  guardian,  who  has  been  chosen 
by  the  parents,  with  the  object  of  advising  the  guardian;  they  can  even 
appoint  several  of  these  men.  In  countries  of  written  law  the  father,  who  can 
by  will  appoint  a  guardian  for  his  minor  son,  also  has  the  right  to  name  one 
or  more  counselors:  Denisart,  loc.  cit.     For  illustrious  persons,  see  Ferriere. 

^  "Arr.  de  Lamoignon,"  "Tut.,"  3  et  seq.;  Viollet,  "Et.  de  Saint  Louis,"  I, 
p.  145  and  III,  33.  During  the  thirteenth  century  in  Touraine  and  Anjou 
the  paternal  relatives  alone  take  part  in  them;  during  the  sixteenth  century 
the  king  introduces  the  maternal  relatives  into  them.  —  Customs,  cf.  Marivaux, 
"Vie  de  Marianne." 

*  Decree  of  Aug.  16-24,  1790,  vol.  X;  cf.  vol.  Ill,  11. 

6  Also:  Giraud,  "Essai  s.  I'Hist.  du  Dr.  Fr.,"  II,  259  (Salon) .— C/.  Decree 
of  Sept.  20,  1791,  4,  1;  five  relatives:  Decree  of  Sept.  7,  1793:  two  relatives 
who  are  heirs,  or  two  who  are  not  heirs,  and  the  public  officer:  Law  of  June 
15,  1794. 

8  Nor  does  the  family  council  exist  in  England,  where  the  Lord  Chancellor 
has  general  supervision  over  guardianships:  Blackstone,  I,  9,  1,  a  rule  which 
is  connected  with  the  old  seigniorial  custody:  Glasson,  VI,  232.  The  Chancel- 
lor can  dismiss  any  guardian  (even  the  father)  in  case  of  embezzlement,  and  he 
names  guardians  (or,  if  he  does  not  do  this,  then  salaried  administrators)  for 
all  minors  who  are  not  provided  with  them;  but  formerly  this  was  only  done 
when  the  minor  began  an  action;  by  this  very  means  he  became  the  irard  of 
the  court.  In  order  to  avoid  involving  his  responsibility,  the  guardian  acts 
under  the  direction  of  the  Court  of  Chancery  and  renders  an  annual  account. 
Lchr,  "La  Tut.  des  Mineura  et  Ics  Conseils  de  Famille,"  1896. 

253 


§  204]  THE    FAMILY  [Chap.  I 

ceases  absolutely  to  be  a  family  institution,  in  order  to  rise  to 
the  rank  of  a  function  of  the  State.^ 

§  205.  The  Question  of  the  Capacity  of  the  Minor  ^  did  not 
come  up  under  the  obsolete  systems  of  usufructuary  guardianship 
by  virtue  of  which  the  minor,  stripped  of  his  possessions,  descended 
almost  to  the  rank  of  the  "alieni  juris."  The  old  axiom,  "He  who 
is  under  age  has  neither  voice  nor  reply  in  court,"  corresponds 
to  this  state  of  law;  by  this  is  meant  that  the  minor  cannot 
appear  in  court;  ^  the  guardian  alone  shall  there  play  a  part,  if 
there  is  occasion  to  do  so,  in  his  own  name,  and  not  as  represent- 
ing the  minor.  This  rule  must  be  generalized  and  extended  to 
extrajudicial  acts,  such  as  contracts  and  alienations.  But  the 
torts  of  the  minor  involve  the  responsibility  of  the  guardian. 
As  far  as  torts  were  concerned,  however,  it  was  admitted  at  an 
early  period  that  the  minor  could  be  sued  himself,  perhaps  be- 
cause the  guardian  was  authorized  to  give  up  the  guardianship 
and  to  free  himself  thereby  from  all  responsibility.'* 

1  Stobhe,  §  266  (details).  " Obervormundschaf t "  or  high  guardianship  of 
the  sovereign,  commissions  of  superintendence  and  salaried  guardians :  Calame, 
"Cout.  de  Neufchatel,"  p.  362.  All  tutelary  power  emanates  from  the 
Council  of  State  by  order  or  in  the  name  of  which  the  courts  of  justice  confer 
it  upon  the  person  who  is  required  to  exercise  it.  —  Viollet,  p.  544:  at  Lille 
and  Dunkirk,  "gard'orphenes"  or  municipal  commissions,  watching  over 
the  interests  of  minors  and  subject  to  inspection  by  the  board  of  aldermen: 
"Roisin,"  135;  Britz,  p.  566.  In  Germany  and  Switzerland  the  protection  of 
minors  also  belongs  to  the  corporations  ("Ziinfte");  perhaps  even  the  town 
at  first  played  a  subsidiary  part  with  respect  to  the  corporations,  in  the  same 
way  as  the  State  generally  does  with  respect  to  the  family:  Stobbe,  IV,  445. 

2  Ferriere,  on  239,  "Paris";  "Diet.,"  see  "Mineurs";  Guyot,  ib.;  Argou, 
I,  7;  Mesle,  II,  27,  and  bibl.,  II,  42,  etc.;  Pou.  du  Pare,  "Principes,"  I,  13,  etc.; 
Flach,  op.  cit.  Cf.  "Obligations,"  "Rescission,"  etc. —  "Salis,"  "Z.  S.S.," 
1SS4;  "G.  A.,"  166. 

^  Loysel,  51.  Cf.  53,  "Women  have  a  voice  and  reply  in  court,"  and  notes. 
Still  less  can  the  minor  be  a  judge  and  carry  9ut  public  functions.  But  his 
is  not  the  meaning  of  the  maxim.  Voice  signifies  demand;  reply,  defense. 
He  cannot  be  an  attorney;  Papien,  II,  2;  Chassaneus,  p.  850.  On  testa- 
mentary execution  see  post,  "Dec.  Cap.  Tolos.,"  154.  In  criminal  matters 
the  minor,  even  though  emancipated,  cannot  act;  but  he  can  be  prosecuted; 
cf.  Lauriere  on  Loysel  and  the  authors  cited.  —  He  cannot  be  a  witness  ip 
court:  Beaumanoir,  39,  34,  139;  "Arch.  Leg.  de  Reims,"  I,  36:  the  guardian 
can  annul  the  testimony  of  the  one  who  is  under  his  guardianship;  if  he  does 
not  do  so,  this  testimony  becomes  valid  after  the  age  of  eighteen  years. 

■•  "Jostice,"  p.  118.  Cf.  131.  Beaumanoir,  16,  10:  the  judge  takes  into 
consideration  the  seriousness  of  the  offense  and  the  mental  capacity  of  the 
minor:  "Sachsensp.,"  II,  65,  1;  Boutaric,  I,  92;  "Olim,"  II,  767;  "Ass.  de 
J^rus.,"  "C.  de  B.,"  II,  p.  205;  Ferriere,  see  "Mineur"  (and  authors  cited): 
the  minor  is  held  as  having  come  of  age  "in  delictis,"  provided  that  he  is  of 
sufficient  age  to  know  what  he  is  doing:  it  is  the  judge's  prerogative  to  modify 
the  punishment.  Domat,  I,  4,  6,  2,  10:  same  obligation  to  pay  damages  as 
in  the  case  of  one  who  has  come  of  age;  Pothier,  "Oblig.,"  120  (prodigals); 
Chassaneus,  p.  810:  the  minor  who  is  twenty-five  cannot  be  imprisoned  for  a 
pecuniary  debt. 

254 


Topic  U]  GUARDIANSHIP   AND   CUSTODY  [§  205 

While  guardianship  was  being  organized  with  a  view  to  the 
protection  of  the  minor,  the  incapacity  of  the  latter  changed  its 
character;  it  was  no  longer  based  merely  on  his  interest,  and,  con- 
sequently, it  ceased  to  be  as  absolute;  it  had  to  be  resolved  into 
a  collection  of  provisions  intended  to  protect  this  interest.  A 
distinction  was  made  as  to  the  acts  which  he  could  validly 
do  and,  without  bringing  into  this  the  subtlety  of  the  Roman 
jurisconsults,  in  the  beginning  these  same  ideas  of  theirs  were 
relied  upon:  the  guardian  or  the  minor  (they  are  no  longer  dis- 
tinguished in  Customary  law)  may  ameliorate  his  condition ;  ^ 
he  cannot  make  it  worse;  the  "in  integrum  restitutio"  was  bor- 
rowed from  them.  Thus,  Beaumanoir  leaves  to  the  judges  the 
duty  of  seeing  whether  the  "dealings  were  carried  out  without 
fraud  and  without  malice  for  the  profit  of  the  one  under  age,"  or, 
on  the  contrary,  to  his  injury;  ^  elsewhere  he  completes  this  rule 
in  the  following  terms:  "(those  under  age)  cannot  do  any  other 
binding  act  without  the  authority  of  him  who  has  the  lease  or 
custody;  if  they  did  it  with  this  authority  and  they  were  dis- 
honored or  injured,  they  could  repudiate  it  when  they  came  of 
age."  Wliereas,  formerly,  the  guardian's  failure  to  join  made  the 
act  "  per  se  "  void,^  everything  thenceforth  was  resolved  into  a 
question  of  injury;  whether  assisted  or  not,  had  the  minor  suf- 
fered any  injury?  This  was  the  only  question  on  which  the 
examination  by  the  judge  had  any  bearing:  "minor  restituitur 
non  tanquam  minor  sed  tanquam  Isesus."  ^    The  same  rule  applied 

^  Ordinance  of  1731,  Art.  7:  acceptance  of  gifts  made  by  ascendants  or 
guardians. 

2  Beaumanoir,  16,  4  et  seq.;  "Jostice,"  pp.  Ill,  117  (an  injury  produced  by 
some  chance  happening  did  not  authorize  re-establishing),  p.  118;  Boutaric, 
I,  92.  As  a  consequence,  jurisconsults  showed  a  great  deal  of  severity  against 
those  who  had  dealings  with  minors.  Argou,  I,  7:  the  cause  of  the  injury  is 
scarcely  ever  gone  into,  which  results  in  placing  minors  under  a  sort  of  pro- 
hibition; no  one  wants  to  make  a  contract  with  them;  Serrcs,  II,  8,  2:  case 
in  which  the  injury  is  presumed.  As  to  the  minor  who  says  that  he  has  come 
of  age:  P.  de  Fontaines,  14,  26;  Beaumanoir,  16,  13;  Boutaric,  I,  92,  pp.  518, 
523;  Louet,  "M.,"  7,  4;  "Arr.  de  Rdgl.,"  1624;  Argou,  I,  7;  Serres,  1,  23,  2. 

3  "Bern.  Handfest.,"  c.  50. 

*  As  a  consequence  of  the  adoption  of  the  Roman  rules,  the  jurisprudence 
in  countries  of  written  law  pretty  nearly  agrees  with  that  of  the  countries  of 
Customs.  Already  there  was  a  question  of  restitution  in  the  "L.  Wis.,"  4, 
3,  3;  "Burg.,"  87:  Mauricius,  "De  Restit.  in  Integr.  Jost.,"  pp.  110,  118. 
Cf.  Beaumanoir,  63,  4;  "Artois,"  27;  "T.  A.  C,  Bret.,"  73;  Loysel,  813.  — The 
advantage  of  restitution  is  not  lost  by  a  mere  declaration  of  majority  (P.  de 
Fontaines,  14,  19),  unless  it  be  accompanied  by  an  oath:  Boutaric,  I,  92.  Ac- 
cording to  Charondas,  the  oath  is  of  little  importance;  there  must  be  some 
fraudulent  action  on  the  part  of  the  minor.  Frauds  checked  by  the  Regu- 
lating Orders  of  March  6,  1629,  and  March  26,  1624.  Louet,  "M.,"  7.  A 
loan  made  to  a  minor  ia  annulled  in  every  case,  even  if  the  minor  has  acted 

255 


§  205]  THE    FAMILY  [Chap.  I 

to  acts  carried  out  by  the  guardian  alone.^  It  was  left  to  the 
minor  on  coming  of  age  to  rescind  or  affirm  either  class  of  act; 
the  fate  of  these  lame  acts  ("negotia  claudicantia")  was  in  his 
hands.  The  action  of  rescission  which  he  had  should  be  made 
use  of,  according  to  Beaumanoir,  within  a  year  and  a  day  of  the 
coming  of  age.^  The  Ordinance  of  August,  1539,  lengthened  this 
delay;  the  annulling  of  the  act  can  be  asked  for  until  the  age 
of  thirty-five  years  is  completed.^  The  action  of  rescission  was 
not  the  only  one  given  to  the  minor  to  cancel  acts  prejudicial 
to  his  interests;  the  defense  of  nullity  was  open  to  him  as  far  as 
certain  of  them  were  concerned,  —  those  for  which  formalities 
were  prescribed  by  the  law,  for  example,  the  alienation  of  im- 
movables, which  was  subject  to  the  necessity  of  judicial  author- 
ization (decree);  for  these  acts  there  was  no  need  to  establish 
the  damage ;  the  absence  of  the  required  formalities  alone  allowed 
the  tribunals  to  pronounce  their  nullity.^  The  civil  petition  per- 
mitted him  to  reopen  judgments  as  a  last  resort,  if  he  had  not 
been  helped  or  defended  in  a  valid  way.^  The  benefit  of  resti- 
tution, as  well  as  that  of  the  civil  petition,  was  refused  the 
minor  who  was  in  business  and  reputed  to  be  of  age,  as  far  as  his 
business  was  concerned.^  Finally,  the  minor  enjoyed  another 
privilege;  prescription  did  not  run  against  him,  at  least,^  if  it  was 
a  matter  of  a  long  prescription;  on  the  other  hand,  "every  cus- 
tomary prescription  for  a  year  or  less  runs  against  those  who  are 
absent  and  minors,  without  hope  of  restitution."  ^ 

fraudulently:  Bourjon,  I,  6,  5;  Denisart,  see  "Mineurs";  Maynard,  "Quest.," 
3,  52,  10. 

1  Boiitaric,  I,  92,  p.  520. 

2  Beaumanoir,  16,4;  Boutaric,  I,  92,  pp.  518  and  522;  "Jostice,"  p.  1118. 
Confirmation,  "Jostice,"  p.  117.  During  the  minority  the  guardian  has  a 
right  to  demand  a  second  payment  from  the  debtors  of  the  minor  who  have 
made  the  mistake  of  paying  their  debts  to  the  latter:  Beaumanoir,  15,  33.  — 
Also:  "T.  A.  C,  Norm.,"  78,  5;  "T.  A.  C,  Bret.,"  71:  four  years.  "Siete 
Part.,"  6,  19,  8. 

3  The  Ordinance  of  June,  1510,  46,  contemplates  in  a  general  manner 
rescissions  because  of  fraud,  fear,  violence,  injury  amounting  to  more  than  half 
of  a  fair  value.  The  Ordinance  of  August,  1539,  134:  after  the  age  of  thirty- 
five  years  completed,  no  more  anulment  of  the  contracts  of  minors,  either  by 
a  plaintiff  or  a  defendant,  by  letters  of  rescission  or  by  cancelhng  (alienations  of 
immovables  without  a  decree),  Loysel,  715. 

^  Serres,  "Inst.,"  II,  8,  2.  —  Even  though  regular,  the  sale  could  still  be 
rescinded  by  reason  of  injury.     Cf.  Boutaric,  I,  92,  p.  519;  Mesle,  II,  46. 
5  Boutaric,  I,  92:  restitution  of  a  thing  conferred  by  judgment. 

•  Ordinance  of  1673,  I,  6;  Ferrihre,  see  "Mineur."  Similar  presumption 
in  the  case  of  minors  who  have  a  benefice  or  hold  some  office. 

7  Loysel,  718,  721;  "L.  d.  Droiz,"  720. 

*  Year  for  the  repurchase  by  a  person  of  the  same  lineage,  prescription  of 
five  years  in  the  case  of  arrears  of  constituted  rents.     To  be  quite  logical 

256 


Topic  14]  GUARDIANSHIP  AND   CUSTODY  [§  205 

These  measures  of  protection  had  in  them  nothing  excessive 
when  it  was  a  matter  of  children  of  tender  age;  but,  as  majority 
was  postponed  to  twenty-five  years,  they  were  not  so  well  justi- 
fied in  the  case  of  those  who  were  approaching  this  age.  Practice 
attempted  to  accommodate  the  law  to  the  necessities  of  life  by 
validating  renunciations  of  the  benefit  of  minority,  and  especially 
to  the  "restitutio  in  integrimi"  (twelfth  and  thirteenth  cen- 
turies).^ Unknown  to  Rome,  condemned  by  the  Commentary 
("in  hoc  ipso  [minor]  esset  deceptus"),^  they  w^ere  introduced 
under  cover  of  an  oath;  now  a  Constitution  of  Alexander  Severus 
seems  in  this  case  to  be  in  derogation  of  the  general  rule,  accord- 
ing to  which  an  act  which  is  null  would  be  validated  by  an  oath.^ 
Bulgarus  and  INIartinus  discussed  the  effect  of  this  law.  Martinus 
gave  renunciation  under  oath  an  absolute  effect;  according  to 
Bulgarus,  the  oath  did  indeed  deprive  the  minor  of  the  "restitu- 
tio," but  it  did  not  prevent  him  from  reclaiming  the  immovables 
of  which  the  alienation,  made  "sine  decreto,"  was  null  and  void 
because  of  a  defect  in  form.^  Frederick  Barbarossa  confirmed  the 
opinion  of  the  former  by  having  inserted  in  the  Code,  following 
the  Constitution  of  Severus,  the  Authentic,  "Sacramenta  pube- 
rum"  (Diet  of  Roncaglia),  which  validates  renunciations  under 
oath  when  made  by  those  who  have  attained  the  age  of  puberty.^ 
In  the  Commentary  the  tendency  to  extend  the  Authentic  is 
already  shown,  a  tendency  which  is  exaggerated  by  Bartolus,  and, 
following  him,  by  the  Italians  and  the  Canonists :  thus  they  apply 
it  to  the  person  who  has  not  attained  pubertj^,  "pubertati  proxi- 
mus."  Cinus  and  the  French  School  hold  the  Authentic  to  be 
"odiosa,"  because  it  injures  those  who  are  under  a  disability;  they 
do  not  apply  it  to  those  who  have  not  attained  the  age  of  puberty, 
nor  to  minors  provided  with  a  guardian;  they  limit  it  to  sale,  the 

it  would  seem  that  the  decision  should  have  been  to  the  contrary,  because 
short  prescriptions  will  almost  invariably  expire  during  the  minority,  whereas 
this  will  not  be  so  in  the  case  of  long  prescriptions;  against  the  former  the 
minor  has  no  protection;  he  runs  a  chance  of  not  being  affected  by  the  latter. 
This  difference  is  to  be  accounted  for  by  the  Roman  origin  of  the  former  and 
the  customary  origin  of  the  latter.  Also,  no  doubt,  the  disfavor  for  such 
rights  as  that  of  the  repurchase  by  a  person  of  the  same  lineage  was  combined 
with  this  other  notive.  As  to  the  countries  of  written  law,  cf.  Argou,  I,  7; 
Mesle,  I,  276. 

1  Meynial,  "N.  R.  H.,"  1901,  246. 

2  On  the  Law,  "Si  Judex":  Dig.,  4,  4,  41. 

3  "Cod.  Just.,"  2,  28,  1;  cf.  1,  14,  14;  Esmein,  "N.  R.  H.,"  1888,  32. 
*  "Dissens,"  "Dominorum,"  pp.  52,  98,  etc.  (ed.  Haenel). 

"  "Cod.  Just.,"  2,  28,  1;  "L.  Feud.,"  53;  Meynial,  "N.  R.  H.,"  1901;  P.de 
Fontaines,  14,  19;  Beaumanoir,  16,  8;  Boutaric,  I,  92,  p.  526. 

257 


§  205]  THE  FAMILY  [Chap.  I 

only  act  which  it  had  in  view,  not  admitting  that  the  oath  vali- 
dates sales  "sine  decreto,"  rejecting  general  renunciations,  and, 
finally,  wanting  the  minor  to  have  been  "  certioratus  "  (notified  at 
the  time  of  the  renunciation  of  the  existence  of  the  privileges  in 
his  favor)  .^  This  restrictive  interpretation  paved  the  way  for  the 
practice  of  the  sixteenth  century,  which  completely  sets  aside  the 
Authentic  and  refuses  all  efficaciousness  to  the  promissory  oath, 
starting  with  the  usage  which  had  been  introduced  of  asking  the 
king  for  a  dispensation  from  the  oath.^ 

§  206.  The  Barbarian  Majority  ^  did  not  carry  with  it  emanci- 
pation from  the  paternal  power.  Purely  political  as  it  seems, 
among  the  Germans  it  was  arbitrarily  fixed  by  the  relatives;  when 
they  were  of  opinion  that  their  children  were  capable  of  bearing 
arms,  they  either  bestowed  them  upon  their  children  or  else  had 
them  given  to  their  children  by  other  members  of  the  assembly  of 
free  men.^  For  these  arbitrary  decisions,  the  only  ones  known, 
undoubtedly,  in  the  time  of  Tacitus,  the  Barbarian  law  substi- 
tutes a  fixed  age  whose  precocity  astonishes  us:  ^  twelve  years 
among  the  Salians,  fourteen  among  the  Ripuarians.^  What  was  a 
child  of  twelve  capable  of  doing,  or  even  one  of  ten,  as  among 
the  Anglo-Saxons?  Here  we  have,  as  we  think,  rather  a  religious 
than  a  civil  majority.    At  this  age  reason  awakens  and  with  it  the 

1  Meynial,  p.  256;  Doneau,  21,  13;  "Ant.  Fab.,"  "DeErr.  Pragm.,"  69; 
"Decis.  Cap.  Tolos.,"  49. 

2  Esmein,  loc.  cit.;  Boutaric,  p.  526,  ed.  1603,  note  by  Charondas;  Bugnyon, 
"Lois  Abrog.,"  I,  120  (he  cites  P.  Jacobi,  Imbert,  etc.):  he  who  can  rescind 
a  contract  can  perfectly  well  dispense  with  the  oath  which  is  joined  to  this 
contract.  The  king  dispenses  with  this  oath  subject  to  absolution  by  the 
ecclesiastical  authorities,  and  even  sometimes  without  this  reservation.  In 
Belgium  and  Italy  the  Authentic  fell  into  disuse.  In  Germany  it  remained 
in  force,  and  in  Spain  as  well:  Meynial,  p.  259. 

3  B.  de  Merville,  "Tr.  des  Majorit^s,"  1729;  Mesle,  "Minorites,"  1785; 
Amiable,  "R.  h.  Dr.,"  1861,  217;  Stobbe,  §  264;  Glasson,  VII,  112;  Lattes, 
"Dir.  Consuet.,"  p.  175. 

*  Physical  indications  of  puberty  have  here  furnished  a  connecting  link. 
Or  else  physical  strength:  Cassiodore.  Tacitus,  "Germ.,"  20:  "sera 
juvenum  Venus."  Post,  "Ethnol.  Jur.,"  II,  30.  Details  as  to  the  divisions 
of  age  in  Grimm,  410;  Chaisemartin,  67:  at  the  age  of  7  years  one  is  a  child, 
"Schwabenspiegel,"  2,  47;  at  the  age  of  18  years  one  can  be  a  witness,  "T.  A.  C., 
Bret.,"  79;  at  the  age  of  14  years  one's  oath  is  valid. 

*  "Sal.,"  24:  twelve  years  completed  (Geffcken,  p.  134,  bibl.);  Id.  Alam., 
Frisians,  Saxons,  Lombards  ("Roth.,"  155),  Norwegians,  Icelanders.  —  Dif- 
ferent Ages:  "Rib.,"  81  (14  yrs.  completed);  "Burg.,"  87;  "Wis.,"  2,  4,  10; 
5,  9;  4,  3,  1;  13,  4;  10,  1,  17  (10,  12,  15,  20  yrs.);  Hloth.,  6;  Ina,  7,  2  (10  yrs., 
then  12);  GVimm,413;  Kraut,  I,  112;  Stobbe,  I,  40;  Dareste,  "Etudes,"  pp.  273, 
310,  326,  349.  C/.  as  to  the  coming  of  age  of  the  king:  Pardessus,  I,  p.  452; 
"Diplom.,"  I,  200;  Viollet,  "Dr.  Publ.,"  I,  227. 

«  Terminology:  "a^tas  legitima"  (legal  age),  "pueri  infra  setatem,"  etc. 
During  the  feudal  period  minors  are  called  "sous  ag^s"  (under  age).  Ger- 
many: "zu  zeinen  Jahren"  or  "Tagen  kommen":  "Fribourg  en  B.,"  22. 

258 


Topic  14]  GUARDIANSHIP   AND   CUSTODY  [§  207 

aptitude  to  perform  the  acts  of  religious  life.^  If  a  few  civil  effects 
can  have  been  connected  with  it,  this  is  because  the  life  which 
was  then  led  was  very  simple  and  transactions  seldom  occurred ; 
the  cohesion  of  the  family  and  the  protection  in  fact  which  re- 
sulted for  the  adults  also  contributed  to  make  this  premature 
emancipation  tolerable.^  Already,  moreover,  at  this  period  it  is 
felt  that  such  premature  emancipation  has  its  inconveniences: 
Liutprand  postpones  majority  until  eighteen  years,  and  the  law 
of  the  Visigoths  until  twenty.^ 

§  207.  Under  the  Feudal  System  majority  varies  according  to 
the  status  of  people;  the  nobleman  comes  of  age  when  he  is  twenty 
(completed)  or  twenty-one  (begun) ;  **  the  plebeian,  at  fifteen 
(begun),''  for  before  twenty  years  the  former  is  not  fit  for  military 
service,  whereas  the  latter  can  "measure  stuffs,  reckon  amounts 
of  money,  and  busy  himself  in  the  affairs  of  his  father."  Noble- 
women attained  their  majority  at  the  age  of  fifteen,^  plebeian 
women  at  the  age  of  twelve.  Such  are,  at  least,  the  general  rules, 
for  variations  of  these  were  not  lacking,^  and  there  were  even 
several  majorities  for  certain  acts,  taking  the  veil,  marriage,  and 
making  a  will.^    Thus  the  Feudal  law  had  retarded  majority  in 

1  Oath  of  fealty  at  the  age  of  twelve:  "Cap.,"  792,  4;  808,  2;  Blackstone, 
1,9. 

2  After  the  age  of  12  or  14  years  the  child  was  still  under  the  paternal  power, 
but  became  responsible  for  his  own  torts  ("Sal.,"  24,  5,  and  note  in  Hessels, 
Geffcken;  "Cap.,"  819,  5,  I,  293);  if  his  father  were  a  widower  and  remarried, 
he  administered  the  dower  of  his  mother  and  had  the  use  of  it:  "Sal.  Cap. 
Extra  v.,"  8;  Schroeder,  315. 

*  Id.,  "Bulle  d'Or,"  VII,  4,  and  many  German  statutes.  In  the  case  of 
commoners  in  Germany  we  often  find  that  they  came  of  age  at  14  or  16: 
Heusler   II    490. 

4  P.  Vie  Fontaines,  15,  35;  "Jostice,"  pp.  58,  116,  221;  "T.  A.  C,  Norm.," 
6;  "Summa,"  31,  1,  8, 14;  "  Fleta,"  1,  9,  4;  Beaumanoir,  15,  30  ("Beauvaisis": 
15yrs.;  id.,  in  Palestine;  J.  d'Ibelin,  272,  etc.;  France,  20yrs.);  63,  4;  "Et. 
de Saint  Louis,"  I,  73;  "Ord."  of  May,  1246;  Desmnres,  249:  nobles  21  years 
of  age  with  regard  to  nobleman's  property,  and  14  years  of  age  with  regard 
to  villein  property.  Loysel,  52  (a  commoner  came  of  age  at  21  years  with 
regard  to  nobleman's  property).     Cf.  813;  Britlon,  66;  Mesle,  I,  210. 

*  Beaumanoir,  15,  22,  combats  an  opinion  according  to  which  cliildren  in 
authority  were  always  of  age.  Here  we  sec  that  the  Roman  age  of  puberty 
has  been  adopted.  For  the  very  frequent  cases  in  which  the  age  was  not 
known  the  "Sachsensp.,"  I,  42  and  the  "Schwabensp.,"  I,  28,  maintain  that 
one  should  depend  upon  indications  of  puberty.  Glanville,  7,  9.  Beaumanoir 
and  our  old  books  of  Customs  fall  back  upon  the  testimony  of  godfather  and 
godmother  and  parish  priests.     CJ.  Fapien,  26,  8. 

^  Completed:  "Ord."  1246.  The  lease  (guardianship)  of  the  daughters 
of  nobles  at  first  lasted  until  the  time  of  their  marriage. 

^  As  to  the  minor  who  was  possessed  of  property  in  various  places  he 
would  attain  his  majority  at  the  age  fixed  by  the  Custom  of  his  principal 
"  herbergement." 

*  Blackstone,  1,  9:  the  seven  ages  of  woman. 

259 


§  207]  THE   FAMILY  [Chap.  I 

the  case  of  noblemen;  but  in  the  plebeian  class  the  independ- 
ence of  the  adult  was  premature.  It  is  true  that  he  was  often 
protected  against  himself  by  the  possibility  of  remaining  under 
the  care  of  a  guardian,  and  always  by  the  rules  for  conservation 
of  his  immovable  inheritance.  But  there  came  a  time  when,  these 
rules  having  been  overthrown  and  the  number  of  transactions  hav- 
ing increased,  it  was  realized  that  the  age  of  legal  capacity  should 
await  a  state  of  complete  maturity  of  mind.^ 

§  208.  The  Same.  —  By  the  end  of  the  thirteenth  century  it 
was  necessary  in  practice  to  add  to  the  customary  majority  the 
full  majority,  or  Roman  majority,  of  twenty-five  years  (com- 
pleted);^ in  the  sixteenth  century  and  until  1789,  twenty-five 
years  is  the  legal  age  at  which  minority  ceases  in  the  whole  of 
France  ^  (excepting  in  Normandy,  where  it  is  twenty-one  years 
begun). ^  One  exaggeration  had  now  been  avoided  merely  to  fall 
into  another;  majority  had  become  too  tardy.  The  Law  of  Sep- 
tember 20,  1792,  IV,  2,  arrived  at  a  just  conclusion  by  deciding 
upon  the  age  of  twenty-one  years  completed.^ 

§  209.  Emancipation  of  Minors  under  Guardianship.^  —  Hard 
to  reconcile  with  the  usufructuary  guardianship  and  the  prema- 
ture majority  of  the  old  law,^  this  institution  made  its  appearance 

1  Similar  movement  in  Germany:  Stobbe,  §  46. 

2  P.  de  Fontaines,  15,  35,  contrasts  the  coming  of  age  at  15  with  that  of  the 
Roman  law.  Cf.  14,  11;  Beaumanoir,  15,  22,  33;  16,  8,  11;  "  Jostice,"  3,  5,  7; 
3,  9,  1;  Boutaric,  I,  92.  —  Custodians  for  minors  25  years  old,  according  to 
the  "Const,  du  Chat.,"  74,  84  (noteed.  Mortet);  Buche,  "N.  R.  H.,"  1884,  664; 
Flach,  p.  66;  "T.  A.  C,  Bret.,"  79:  up  to  the  age  of  25  no  minor  can  enter  into 
a  contract  without  consulting  with  his  pastor:  Cf.  84;  "Bourges,"  158; 
"Toulouse,"  7:  the  father  can  by  will  cause  his  son  to  be  under  a  disability 
until  the  age  of  25,  or  else  the  consuls  appoint  a  custodian  for  him:  cf.  Art.  69. 
—  "T.  A.  C.,  Bret.,"  80:  from  the  time  she  is  12  years  old  until  she  Is  married 
a  woman  should  be  under  the  protection  of  a  custodian:  ed.  Planiol,  p.  511, 
366;  Masuer,  5,  34. 

3  "Paris,  A.  C,"  97;  "N.  C,"  272;  Dumoulin,  on  "Paris,"  32,  1,  q.  2;  on 
"Montreuil,"  14;  on  "Amiens,"  46;  on  "Boullenois,"  119,  126;  Ferriere,  on 
"Paris,"  32,  268;  "Diet.,"  see  "Majorite";  "Arr.  du  Gr.  Cons.,"  1717; 
Flach,  p.  76.  —  Sometimes  minority  at  the  age  of  25  merely  in  the  case  of 
alienating  immovables:  Lor/seL  —  B.  de  Merville  distinguishes  between: 
Customary  majority  (in  the  case  of  custody,  alienation  of  immovables,  gift 
and  will)  and  majorities  determined  by  the  Ordinances  (marriage,  benefices 
and  office). 

<  "Placit.,"  1066,  38;  Id.:  "Bretagne,"  "Auvergne,"  "Pol.,"  "Berry," 
"Amiens,"  46.  —  Blackstone,  I,  9;  Pollock  and  Maitland,  II,  436. 

6  Id.,  CivU  Code,  388;  England. 

6  Graeter,  "De  Conces.  Venise,  Aet.,"  1695;  Graefe,  "DeEmanc.  Saxon.," 
1715;  Brandeler,  "De  Emanc.  et  Ven.  Aet.,"  1635;  Ferribre,  Guyot,  etc.  See 
"Emancipation,"  "Curateur,"  etc.  — Pothier,  "Pers.,"  no.  186.  Cf.  "Eman- 
cipation from  the  Paternal  Power,"  ante;  Beaumanoir,  16,  12;  P.  de  Fon- 
taines, 14,  27. 

'  Cf.,  however,  Beaumanoir,  21  (to  take  a  child  from  the  lease),  21:  the 

2G0 


Topic  14]  GUARDIANSHIP   AND    CUSTODY  [§  210 

when  majority  came  to  be  settled  at  twenty-five  years;  by  bor- 
rowing this  late  age  from  the  Roman  law,  it  was  found  neces- 
sary to  borrow  also  the  corrective  measure  which  the  "Venia 
setatis"^  had  placed  there.  Often,  in  fact,  the  interest  of  the 
minor  demanded  that  he  be  given  the  management  of  his  posses- 
sions; with  this  object  in  view,  emancipation  was  as  good  as  an 
anticipated  majority.^  It  could  be  implied  or  expressed;  in  the 
former  case  it  resulted  from  marriage;  ^  in  the  latter,  from  being 
granted  by  writings  of  the  king,  called  "writings  relating  to  the 
advantage  of  age";^  they  were  only  granted,  on  principle,  to 
minors  who  had  attained  full  puberty,  that  is  to  say,  the  age  of 
eighteen  years. ^  Able  to  draw  their  income  and  administer  their 
possessions,  minors  who  were  emancipated  were  still  very  far 
from  being  in  every  respect  like  a  person  who  had  attained  his 
majority;  they  had  to  be  aided  by  a  guardian  in  order  to  go  into 
court  or  to  alienate  their  immovables;  moreover,  in  this  last  case 
they  had  to  get  the  opinion  of  their  relatives.^  If  there  were  oc- 
casion to  do  so  by  reason  of  their  niisconduct,  they  could  be  put 
back  under  guardianship. 

§  210.   The  Same.  —  The  countries  of  written  law  knew  neither 

surviving  spouse  puts  the  children  out  of  his  custody  by  allowing  them  to 
have  the  property  of  the  deceased  spouse  and  causing  the  law  or  the  rela- 
tives of  the  children  to  intervene;  15,  31:  the  father  and  mother  free  the 
children  from  their  lease  through  the  law,  so  as  to  escape  responsibility  for 
their  torts,  and  also  in  order  that  there  shall  be  no  community  ownership 
among  them  when  the  latter  have  any  personal  belongings:    Viollet,  p.  545. 

1  "Cod.  Just.,"  2,  44,  2,  3  (18  and  20yrs.);  "Nov.,"  28  of  Leo  (no  longer 
any  condition  dependent  upon  age). 

2  Glasson,  "Inst.  Anglet.,"  VI,  233:  the  English  law  does  not  recognize 
any  expressed  emancipation;  but  it  admits  the  fact  that  marriage  frees  a 
child  from  guardianship;  at  the  age  of  12  or  14,  according  to  sex,  a  child  may 
choose  his  own  guardian  and  dispose  of  his  movables  by  will.  —  German  law: 
anticipated  declaration  of  majority. 

^  It  caused  the  paternal  power  to  cease  and,  "a  fortiori,"  the  guardianship. 
This  was  not  so  in  countries  of  written  law  and  in  some  of  the  Customs. 
Beaumanoir,  15,  29:  "marriage  emancipates  from  custody,  but  not  from 
lease."  As  to  the  minor  carrying  on  a  trade:  "Ord.,"  1673,  6.  —  Ferriere, 
on  "Paris,  239." 

*  Mesle,  I,  203;  II,  168  (letters  of  1506,  1507);  Boutaric,  p.  126.  Germany: 
Schroeder,  p.  733.  —  "T.  A.  C,  Bret.,"  79,  emancipation  by  the  judge;  the 
frieiids  and  the  law  maintain  that  the  minor  at  the  age  of  17  is  provided  with 
understanding. 

^  But,  as  there  was  no  legal  age,  they  might  be  granted  earlier,  a  thing 
which  did  not  offer  many  disadvantages,  because  they  were  only  ratified  upon 
knowledge  of  the  cause  and  on  the  advice  of  the  relatives:  "  Gr.  Cout.  de  Fr.," 
p.  374. 

*  Argou,  I,  9;  Pothier,  "ProcM.  Civ.,"  5,  6,  11  (no  restitution  in  case  of 
these  acts):  Argon,  loc.  cit.:  the  wife  who  is  a  minor  needs  a  guardian  for 
transactions  affecting  immovables  and  the  help  of  hor  husband  is  not  suf- 
ficient in  a  case  of  tliis  sort.     As  to  alienations  of  immovables,  see  Ferriere. 

261 


§  210]  THE   FAMILY  [Chap.  I 

emancipation  by  writing  nor  emancipation  by  marriage;  the  minor 
was  set  free  from  the  guardianship  by  the  mere  fact  of  attaining 
the  age  of  puberty,  fourteen  years  for  boys,  twelve  years  for  girls; 
after  this  age  they  could  have  been  subjected  to  a  permanent  cus- 
tody, but  this  was  not  done;  it  was  thought  sufficient  to  demand 
that  they  should  have  the  assistance  of  a  guardian  in  order  to  ap- 
pear in  court,^  and  the  judge  ended  by  giving  them  as  guardian 
the  attorney  who  was  engaged  for  them  in  the  lawsuit;  for  other 
acts  the  assistance  of  the  guardian  was  only  a  protection,  the  lack 
of  which  did  not  carry  with  it  the  nullity  of  the  act;  also,  it  was 
for  the  minor  himself  to  choose  this  guardian  at  his  own  pleasure.^ 
§  211.  Persons  who  have  attained  Majority  and  are  under  a 
Disability.  —  Formerly,  merely  because  a  man  was  affected  with 
a  serious  physical  infirmity  (blind,  deaf,  dumb,  dwarf)  or  with 
mental  illnesses  (weakness  of  mind,  dementia),  he  found  himself 
deprived  of  the  rights  which  ordinarily  belonged  to  those  who  had 
attained  their  majority;^  the  deformed,  the  infirm,  and  those 
lacking  in  intelligence,  were  'in  the  same  situation  as  children  or 
women,  submitted  to  the  "mundium"  of  the  nearest  male  rela- 
tive.^ Age  itself  was  a  cause  of  forfeiture;  the  head  of  the  family 
who  had  become  old  should  abdicate  in  order  to  make  room  for 
the  young  man  and  place  himself  under  his  guardianship.^  It  was 
the  same  thing  with  regard  to  the  man  who  lost  his  reason.  Against 
prodigals  the  family  was  protected  by  the  old  system  of  property, 
which  was  very  unfavorable  to  alienations. 

»  Papien,  36,  3,  5;  "Capitular.  Add.,"  3a,  50  (Walter,  II,  805);  "Petrus" 
I,  2,  5,  46,  64;  "Aries,"  116-118;  Viollet,  p.  584;  Limoges,  thirteenth  centurj'; 
Marseilles,  fourteenth  century.     In  Burgundy,  cf.  "R.  h.  Dr.,"  13,  549. 

2  Serves,  "Inst.,"  I,  23;  Boutaric,  Julian,  ib.,  "Ord."  1667,  "t.  des  Req. 
Civ.,"  35. 

^  Cf.  post,  "Disability  of  Inheriting."  —  As  to  lepers,  see  post  (sanitary 
provisions  of  a  public  nature).  —  Stobbe,  §  41,  II. 

^  Cf.  as  to  these  rules  of  the  old  form  of  guardianship:  Stobbe,  IV,  513,  12. 
This  legal  guardianship  became  changed  into  a  conferred  guardianship,  and 
the  new  rules  relating  to  the  guardianship  of  minors  were  applied  thereto. 

^  The  "  Sachsenspiegel "  contrasts  the  child  under  age  who  is  less  than  21 
years  old  with  the  person  who  is  over  age,  —  that  is  to  say,  who  is  more  than 
60:  both  of  them  are  under  guardianship  (I,  42).  Elsewhere,  I,  52,  it  declares 
that  in  order  to  be  capable  of  alienating  one's  "eigen  Gut,"  one  must  be  able 
to  mount  a  horse,  carrying  sword  and  shield,  from  a  rock  or  a  slight  elevation, 
providing  only  that  his  horse  and  his  stirrup  be  held:  "Schwabenspiegel,"  168; 
"Leg.  Burchardi,"  11;  Walter,  "Corp.  J.  Germ.,"  Ill,  777;  "L.  Rom.  Cur."; 
Paul,  II,  18,  7;  Griinm,  "R.  A.,"  p.  486;  Stobbe,  §  41;  Huber,  IV,  528  (in  1137: 
persons  who  themselves  ask  that  they  be  prohibited).  Jobbe-Duval,  "These," 
p.  86  ("Dr.  Compar6").  —  The  practice  of  giving  up  possessions  often  made 
it  urmecessary  to  prohibit  old  men.  —  Post,  "Add.  R.  h.  Dr.,"  15,  190,  203:  the 
mayor  of  Dijon  names  a  curator  for  an  old  man  who  is  infirm.  Cf.  Boutaric, 
I,  90,  "Concerning  Those  over  Age  and  the  Enfeebled." 

262 


Topic  14]  GUARDIANSHIP   AND   CUSTODY  [§  212 

§  212.  The  Same.  —  From  this  system,  where  the  interest  of 
the  family  precedes  everything,  and  is  characterized,  one  might 
say,  by  the  iwoyrietary  guardianship  of  agnates,  the  law  passed,  as 
had  been  done  in  the  case  of  minors,  to  a  system  of  protection 
organized  especially  in  the  interest  of  the  incapacitated;  the  fam- 
ily always  preserved  a  certain  part  therein,  but  that  of  the  State 
was  still  more  important.  —  All  those  who  were  not  found  to  be 
absolutely  unfit  to  administer  their  affairs  had  a  full  capacity  (for 
example,  deaf  and  dumb  people).^  —  As  to  the  demented^  and 
feeble-minded,  the  acts  which  they  accomplished  were  looked  upon 
as  void;  but,  as  dementia  and  feebleness  of  intellect  are  susceptible 
of  a  varying  degree,  and  as  great  difficulties  might  arise  be- 
tween the  relatives  and  those  whom  they  pretended  to  be  mad 
or  imbecile,  the  tribunals  placed  them  under  guardianship  or  cus- 
tody,^ so  as  not  to  have  to  pronounce  themselves  upon  the  result 
of  each  one  of  their  acts  after  it  had  been  accomplished.^  This 
system  of  prevention  seems  to  have  been  substituted  for  the  sys- 
tem of  repression  from  the  end  of  the  thirteenth  century.^  It  was 
extended  without  difficulty  to  prodigals,  who  are,  after  all,  only  a 
class  of  the  feeble-minded.''  Justice  should  have  proceeded  offi- 
cially,^ but  this  would  have  been  to  break  abruptly  with  the  former 

1  "Ariprand  and  Alb.,"  p.  166;  "Jostice,"  p.  105;  "Schwabenspiegel,"  2, 
57;  Ferriere,  "Tut.,"  pp.  59,  95;  Ferriere,  see  "Diet." 

2  During  the  thirteenth  century  natural  madness  (imbecility)  was  con- 
trasted with  frenzied  madness  (insanity  with  lucid  intervals):  "Jostice,"  I,  8; 
Beaumanoir,  34.  CJ.  in  English  law,  idiots  and  lunatics:  Pollock  and  Mait- 
land,  I,  464;  Glasson,  VI,  148. 

^  Our  old  law  places  the  insane  under  a  disability  just  as  it  does  prodigals: 
"T.  A.  C,  Bret.,"  83.     Cf.  Roman  law,  Girard,  p.  220  et  seq. 

*  Madness  makes  the  act  void,  and  not  the  judge's  decree;  but  the  pro- 
hibition is  a  presumption  of  madness;  the  conditions  under  which  proof  of 
lucid  intervals  may  be  given  are  regulated  in  order  to  shorten  lawsuits.  Cf. 
post. 

*  "Jostice,"  p.  131;  cf.  p.  59;  Beaumanoir,  56,  9;  12,  45;  34,  56;  "Ass.de 
J^rus.,"  "C.  des  B.,"  81;  "L.  d.  Droiz,"  779. 

^  "Olim,"  III,  849  (in  1313):  disability  placed  upon  a  clerical  who  is  a 
prodigal  by  the  ecclesiastical  judge;  thirteenth  century  at  Limoges  the  councils 
name  custodians  for  prodigals:  Guibert,  "La  Famille  Limous.,"  p.  34.  Viollet, 
p.  550,  cites  an  Act  of  1303  in  which  the  king  commands  the  bailiff  of  Amiens 
to  appoint  a  custodian  after  having  conferred  with  the  relatives  for  an  "ydiota 
prodigus":  "Olim,"  II,  661,  in  1317  ("curator  ydiotao");  III,  168,  in  1.306 
("  curator  patris  ").  Burgundy:  "R.h.Dr.,"  15,  190.  —  During  the  latter  part 
of  the  Old  Regime  orders  of  arbitrary  arrest  are  also  issued  against  protligals: 
"R.  p.  M.,"  1892,  113,  832.  —  Germany,  fourteenth  and  fifteenth  centuries: 
imprisonment,  a  banishment  of  prodigals  or  placing  them  under  guardian- 
ship: Stobbe,  §  275.  —  England  {Lehr,  p.  40):  the  feeble-minded  and  prodigals 
are  not  protected  by  the  law;  they  are  only  allowed  to  place  their  property  in 
the  hands  of  trustees. 

7  System  of  Caring  for  the  Insane.  For  a  long  while  the  violently  insane 
were  treated  like  demoniacs  by  means  of  exorcism  or  like  criminals  by  shutting 

263 


§  212]  THE   FAMILY  [Chap.  I 

family  system;  it  was  not  put  in  motion  excepting  upon  the  de- 
mand of  a  relative  (fourteenth  century)/  after  the  examination, 
notice  to  the  family,  and  in  the  case  of  one  who  was  demented, 
after  interrogatories  on  the  part  of  the  judge.  The  same  forms 
were  requisite  for  the  withdrawal  of  the  prohibition.  There  was 
already  a  question  as  to  the  publishing  of  judgments  of  prohibi- 
tion in  the  well-known  Customs  of  Chatelet;  ^  which  was  finally 
organized  by  the  Regulating  Orders  of  the  Parliament  of  Paris,  of 
the  18th  of  March,  1614,  and  the  23d  of  December,  1621. ^ 

§  213.  The  Same.  —  As  a  result  of  the  proceedings,  the  person 
prohibited  was  deprived  of  the  administration  of  his  possessions,^ 
which  passed  to  his  guardian  or  custodian;*''  he  was  not  able  to 
dispose  of  them  "inter  vivos"  or  "causa  mortis,"  nor  to  bind 
himself.®    But,  if  this  was  the  normal  result  of  the  probihition, 

them  up  in  dungeons.  Before  the  time  of  Pinel,  who  in  1792  regarded  them 
as  patients,  they  received  more  humane  treatment  in  certain  places:  special 
asylums  at  Geneva,  1468;  at  Marseilles  and  Avignon  in  the  sixteenth  century, 
in  Paris  and  Charenton  and  Bicetre  (Order  of  the  Parliament  of  Paris,  Sept.  7, 
1660;  "Instr.,"  1785).  Intermediate  law:  Law  of  March  16-24,  1790,  Art.  9; 
August  4-29,  1790;  August  16-24,  1790;  11,  3:  July  19,  1791:  I,  15;  Sept.  23, 
1792;  the  24th  Vendem.,  year  II,  3,  7;  Dalloz,  "Rep.,"  see  "Alienes."  It 
was  not  until  the  law  of  June  30,  1838,  that  the  burial  of  the  insane  was  pro- 
vided for,  and  then  only  in  a  very  inadequate  manner.  England:  verdict  of 
a  jury  after  an  inquest  "de  lunatico  inquirendo." 

1  "Ad  Requisicionem  Amicorum,"  "Olim,"  III,  421;  Louet,  §  16;  Serres, 
I,  23,  3  and  4;  Stobbe,  §  275:  but  public  authority  also  intervened,  for  the 
simple  reason  that  it  had  jurisdiction  of  acts  of  prodigality  (pubhc  interest 
in  avoiding  their  becoming  a  public  charge  upon  the  city):  Dumoulin,  on 
"Bret.,"  495;  "Norm.,"  151:  creditors;  "L.  Pat.,"  Dec.  25,  1769:  con- 
clusions of  the  Ministry  of  Public  Affairs.  —  "Ord.  de  Blois,"  1579,  182: 
widows  who  remarry  with  persons  beneath  their  station  are  placed  under  a 
disability  of  absolute  right. 

2  "Ohm,"  III,  421  (in  1309) :  notice  is  given  by  the  town  crier  in  neighboring 
localities  that  no  one  must  contract  with  the  person  under  the  disability. 
The  "Ord."  of  1629  provides  for  the  posting  up  of  the  decree  at  the  clerk's 
office:  Stobbe,  IV,  526:  public  notice  in  church. 

^  Argou,  1,9:  notification  first  of  all  of  the  notary's  clerks;  later  on  each 
notary  is  notified  individually  and  it  is  written  up  on  a  notice  board  in  each 
office.  Responsibility  of  notaries  if  they  do  not  notify  those  who  have 
transactions  with  the  person  under  the  disability. 

*  In  England  the  king  has  the  custody  of  the  insane  and  the  use  of  their 
property.  From  the  time  of  Edward  II  he  declares  himself  to  be  the  pro- 
tector of  the  insane:  Pollock  and  Maitland,  I,  464.  Cf.  as  to  this  "Seigniorial 
Protection." 

6  "Ohm,"  III,  849,  421  (in  1309):  " administracio  bonorum  totaliter  in- 
terdicta."  He  becomes  a  minor  again.  His  guardian  or  custodian  would 
ordinarily  be  his  nearest  relative:  "Paris,"  183.  Disadvantages:  Pasquier, 
"Lett.,"  18;  Mesle,  II,  291:  Order  of  Apr.  17,  1734.  Retroactive  effect 
of  the  Decree:  Bourjon,  1,  6,  4,  2. 

"  Nullity  of  the  acts  which  he  does  by  himself,  at  least  if  he  is  injured,  and 
the  injury  shall  be  readily  presumed.  Acceptance  of  gifts  made  by  prodigals 
themselves,  by  the  ascendants  or  the  custodians  of  the  demented:  Pothier,  I, 
361;  VIII,  371  (ed.  Bug.);  Pothier,  "Oblig.,"  no.  51:  the  contract  made  by  a 

264 


Topic  14]  GUARDIANSHIP    AND    CUSTODY  [§214 

the  tribunals  were  free  to  impose  other  restrictions.^  Thus,  prodi- 
gals were  not  necessarily  deprived  of  the  administration  of  their 
possessions;  -  it  might  be  sufficient  to  provide  for  them,  as  in  the 
case  of  the  feeble-minded,^  a  judicial  council,'*  without  which  they 
could  not  validly  accomplish  the  acts  enumerated  in  the  judg- 
ment which  named  it,  especially  as  regards  alienating  or  mort- 
gaging their  immovables.  Outside  of  the  administration  of  the 
inheritance,  which  escaped  the  prohibition,  there  were  certain 
acts,  like  marriage,  which  concerned  the  person  of  the  one  under 
the  disability,  and  as  to  the  outcome  of  which  the  judgment  said 
nothing;  they  were  left  under  the  application  of  the  old  rule,  which 
annulled  acts  done  under  a  state  of  dementia  or  absolute  imbe- 
cility; it  was  for  the  judges  to  say,  in  fact,  if  these  were  the  acts 
of  a  conscious  or  clear  will  (lucid  intervals).^ 

§  214.  The  Same."  —  Those  who  had  attained  majority  and  were 
under  a  disability  ^  were  provided  with  a  custodian,  whose  duties 
varied  according  to  the  nature  of  their  disability.  Sometimes  he 
administered  the  possessions  of  the  one  under  the  disability  and 

madman,  before  his  being  placed  under  a  disability,  is  void  if  his  madness  is 
established  as  having  existed  at  the  very  time  of  the  deed  (contra  in  the  case 
of  the  prodigal) ;  "  Pers.,"  no.  201 :  placing  a  minor  under  a  disabihty  is  useless, 
if  he  has  not  been  emancipated.  —  Dementia  is  proved  by  means  of  witnesses 
in  the  case  of  acts  "inter  vivos,"  and  even  according  to  many  in  the  case  of 
wills;  but,  as  the  notary  mentions  the  fact  that  the  testator  is  of  sound  mind, 
this  point  is  in  dispute.  Bourjon,  I,  6,  4,  1 :  the  jurisprudence  of  the  Chatelet 
adds  to  the  difficulties  of  the  proof  of  acts  previous  to  the  disability,  or  if  the 
demented  person  Is  dead,  or  if  it  is  wished  to  prove  that  the  act  was  carried 
out  during  a  lucid  interval  after  the  disability  was  decreed.  Letters  of  re- 
scission are  not  necessary  in  the  case  of  acts  done  by  a  person  under  this 
disability. 

1  Thus  the  capacity  of  the  feeble-minded  and  prodigals  varies  according 
to  the  inclination  of  the  judges,  and  this  without  third  parties  always  being 
informed  of  it;  under  these  conditions  the  appointment  of  a  judicial  council 
might  very  easily  be  a  snare  for  the  public:  Bourjon,  loc.  cit. 

-  Disability  of  prodigals  only  disappeared  from  our  law  at  the  time  of  the 
drawing  up  of  the  Civil  Code,  Art.  513.  "Const.,"  5,  Fruct.,  year  III,  Art.  13 : 
they  preserve  their  political  rights. 

^  The  jurisprudence  of  the  Chatelet  only  appointed  a  judicial  council  upon 
the  request  of  a  feeble-minded  person,  —  a  very  impractical  solution,  because 
"where  can  you  find  a  madman  who  is  wise  enough  to  have  himself  placed 
under  a  disability?"  Feriet,  "Trav.  Pr6p.,"  II,  9G. 

■*  Argou,  I,  9;  Denisart,  see  "Conseil";  Brillon,  "Diet,  des  Arrets,"  see 
"Prodiguc."     Application  to  litigious  people. 

^  The  marriage  of  a  demented  person  during  a  lucid  interval  is  valid;  but 
Parliament,  upon  an  appeal  as  against  an  abuse  of  power,  can  order  that  the 
marriage  shall  be  rehabilitated,  —  that  is  to  say,  celebrated  over  again,  and 
can  cause  the  contract  of  marriage  to  be  drawn  up  according  to  the  Custom  of 
the  locality  and  the  desires  of  the  relatives :  "  Jostice,"  p.  24  (nullity) ;  Bourjon, 
loc  cit 

6  Siobbe,  §  277  ("Pflegschaft"). 

7  "Const,  du  Ch.at.,"  74-84;  "T.  A.  C,  Bret.,"  79;  ed.  Planiol,  p.  366  (re- 
form of  1405,  choice  of  custodian). 

265 


§  214]  THE  FAMILY  [Chap.  I 

represented  him  in  the  same  way  as  a  guardian,  and  this  is  what 
happened  in  the  case  of  maniacs  or  imbeciles;  sometimes  he  is 
Hmited  to  helping  the  one  under  the  disability  in  court/  and  to 
giving  his  consent  to  alienations  of  immovable  possessions  or  some 
other  important  steps;  this  is  done  in  the  case  of  minors  who  are 
emancipated  and  prodigals  who  are  not  radically  under  a  disability. 

As  we  see,  the  duties  of  the  custodian  are  not  identical  with 
those  of  the  guardian,  and  his  responsibility,  moreover,  is  not  the 
same.  But  custody  does  not  differ  from  guardianship  in  its 
nature;  like  the  latter,  it  is  a  public  charge  in  the  interest  of  those 
under  a  disability;  like  the  latter,  also,  it  is  conferred.  It  is  for 
this  reason  that  we  say  guardian  and  custodian  are  but  one.^ 

The  old  law  had  many  other  custodians  (for  a  posthumous 
child,  for  possessions  without  an  owner,. which  have  been  given  up 
or  abandoned,  for  the  absent,  for  the  accused  who  is  deaf  and 
dumb  or  who  refuses  to  answer,  for  the  body  or  the  memory  of  a 
deceased  person,  for  possessions  which  have  been  confiscated): 
these  represented  persons  who  could  not  or  would  not  act  for 
themselves.^ 

1  From  whence  the  name  custodian  of  actions.  Cf.  guardian  "ad  hoc"  or 
custodian  given  a  minor  who  is  not  emancipated  and  who  has  actions  to  bring 
against  his  guardian:  Beaumanoir,  III,  18;  Boutaric,  "Inst.,"  1,  23,  5; 
Ferriere,  4,  5,  284;  "L.  d.  Droiz.,"  899,  900;  "R.  h.  Dr.,"  15,  175. 

2  Loysel,  180.  After  the  thirteenth  century  the  terms  "guardian"  and  "cus- 
todian" are  used  interchangeably;  the  same  personage  is  called  a  guardian  and 
a  custodian;  "cura  puerorum  "  is  understood  to  apply  to  guardianship:  "  Olim," 
III,  128,  157,  1110  (in  1304  et  seq.);  Dumoulin,  "Usur.,"  39,  300;  Coquille, 
"Quest.,"  178;  "Arrest,"  "Sane,"  etc.;  "Petrus,"  I,  2  et  seq.,  however, 
still  makes  the  Roman  distinctions.  The  gibe  cited  in  the  text  gives  one  to 
understand  that  in  countries  of  Customs  the  guardian  remains  in  power  until 
the  coming  of  age  of  his  ward  and,  consequently,  plays  the  part  of  the  Roman 
custodian  ("curator").  In  the  Customs  where  guardianship  ceases  at  the 
age  of  20  (for  example,  "Montargis,"  7,  7)  they  abolish  custody  after  that 
age  also:  Viollet,  p.  519.  Same  rule  in  Germany:  "hodie  jura  tutelse  et 
cura;  confusa  esse,"  —  Heusler,  II,  508.  —  The  Civil  Code  calls  the  custodian 
of  the  insane  man  his  guardian,  Art.  505. 

3  See  "Repertoire  et  Diet.,"  Argou,  I,  9. 


266 


Topic  l] 


DIVISIONS    OF   PROPERTY 


[§215 


CHAPTER  TWO 

OWNERSHIP    AND    REAL    RIGHTS 

Topic  1.  Divisions  of  Property. 

Topic  2.  System  of  Ownership  of  Movables. 

Topic  3.   Ownership  of  Land. 

Topic  4.  Possession. 

Topic  5.  Acquis.tion  of  the  Ownership  of  Immovables. 

Topic  6.  Acquisition  of  the  Ow^nership  of  Immovables  — 

Delivery. 
Topic  7.  Rights  in  Land  and  Encumbrances  upon  Landed 

Property. 


Topic  1.    Divisions  of  Property 


§  215.  General  Remarks. 

§  216.   (I)  Movables  and  Immovables. 

§  217.  Basis  of  this  Division  and  its 
Extension. 

§  218.  Movables  and  Chattels. 

§  219.  Inheritances  or  Immovables. 

§  220.  (II)  Personal  Belongings  and 
Acquests. 

§§  221,  222.  Alienation  "inter vivos." 

§  223.  Inheritance  of  Personal  Be- 
longings. 

§§  224,  225.  Jointly  held  Personal  Be- 
longings. 


§226. 
§227. 


§  228. 
§229! 
§230. 
§  231. 
§  232. 
§233. 
§234. 
§235. 
§  236. 


Proofs. 

(Ill)    Things     which    do    not 

Come  Within  Trade.     Royal 

Prerogatives. 
Prerogative  over  the  Ground. 
Expropriation. 
Confiscation. 
Property  of  the  Enemy. 
Prerogative  of  Mines. 
Treasure. 
Estrays,  Waifs. 
The  Prerogative  of  Forests. 
Prerogative  over  Waters. 


§  215.  General  Remarks.  —  From  the  Prankish  period  to  the 
Revolution  the  system  of  the  ownership  of  land  is  characterized 
by  the  multiplicity  of  rights  which  bear  heavily,  at  one  and  the 
same  time,  upon  each  piece  of  real  property:  1st.  Rights  of  the 
village  or  the  neighbors,  remains  of  agrarian  joint  ownership,  or 
the  collective  ownership  of  the  village:  from  which  are  derived 
rights  of  commons,  rights  of  pasturage  and  servitudes  of  vicinage. 
2(1.  Rights  of  the  family,  remains  of  the  family  joint  ownership: 
from  which  are  derived  the  splitting  up  of  possessions  into  per- 
sonal belongings  and  acquests.   3d.   Rights  of  joint  owners,  joint 

267 


§  215]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

possession,  and  joint  ownership  being  created,  so  to  speak,  spon- 
taneously. 4th.  Rights  of  the  lord,  from  which  arises  the  distinction 
between  fiefs,  manors,  servile  and  allodial  tenures.  5th.  Rights  of 
the  king  or  the  State,  rights  of  the  Church  and  persons  in  mortmain 
who  are  connected  with  the  Church  or  the  State :  from  which  arises 
the  distinction  between  the  public  domain  (domain  of  the  crown), 
the  ecclesiastical  inheritance,^  and  possessions  of  simple  individuals.^ 
§  216.  (I)  Movables  and  Immovables.  —  One  category  of  pos- 
sessions, movables,  by  their  very  nature  escape  from  these  com- 
plicated rights.  These  objects,  which  are  perishable  and  subject 
to  continual  moving  about,  only  lend  themselves  to  more  simple 
relations  than  those  which  came  into  existence  as  regards  immov- 
ables. Also,  for  a  long  time  the  law  remained,  as  far  as  movable 
property  was  concerned,  in  that  obsolete  phase  of  its  develop- 
ment which  could  be  reduced  to  the  suppression  of  offenses:  he 
who  has  a  movable  does  not  thereby  have  the  advantage  of  claim- 
ing, or  of  a  contractual  action;  he  is  limited  to  an  action  "ex  de- 
licto" against  the  thief  or  unfaithful  depositary,  or  the  borrower 
who  refuses  to  make  restitution  to  him.  We  shall  see  further  on 
how  legislation  upon  this  point  was  altered.  Over  movables  the 
individual  has  a  right  of  disposal  which  is  more  efficacious  than 
that  which  he  has  over  land:  food,  arms,  clothing,  are  a  part  of 
himself,  so  to  speak:  "mobilia  ossibus  inhserent."  ^  The  facility 
with  which  movables  may  be  carried  about,  the  restrictions  brought 
to  bear  on  the  rights  of  the  owner  of  land,  have  maintained  through- 
out the  Old  Regime  important  differences  between  the  system  of 
movable  property  and  that  of  landed  property :  ^  movables  have  no 
duration  and  are  not  capable  of  being  mortgaged;  movables  can 
be  freely  disposed  of,  whereas,  the  alienation  of  immovables  is  sub- 

^  As  to  the  possessions  of  the  Church  (mortmain)  cf.  Salvioli,  §  216  (bibl.); 
Fertile,  §  146.  —  Degheiviet,  p.  83,  contrasts  sacred  or  ecclesiastical  tilings 
with  profane  or  secular  tilings:  Astruc,  p.  208;  "Petrus,"  I,  60,  65. 

^  Cf.  Institutes  such  as  those  of  De  Launay,  Fleury,  Boutaric,  etc. 

'  L'Homrneau,  p.  3.56.  —  English  law:  (I)  Real  property:  perpetual  rights 
bearing  upon  immovables.  (II)  Personal  property  (goods  and  chattels) :  1st, 
chattels  real,  for  example,  lease  for  a  term  of  a  piece  of  land;  2d,  chattels 
personal,  domestic  animals,  household  goods,  jewels,  arms,  etc.;  there  are 
also  included  chases  in  action,  that  is  to  say,  incorporeal  things,  such  as 
claims,  copyrights,  commissions  in  the  army,  etc.  Personal  property  does 
not  come  witJiin  the  feudal  system.  Real  property  is  not  absolute;  it  is 
limited  in  theory  by  the  ultimate  ownership  of  the  State. 

^  Differences  which  have  been  exaggerated  by  maintaining  that  as  to  mov- 
ables a  mere  detainer  of  them  took  the  place  of  real  rights  {Franken,  "Franz. 
Pfandr.,"  pp.  267,  292).  See  a  criticism  of  these  ideas  in  Heusler,  §  79.  Cf. 
post,  "Ownership  of  Movables."  — As  to  coinage,  cf.  bibl.  in  Schroeder,  pp.  184, 
510,  and  Amira,  p.  175. 

268 


Topic  l]  DIVISIONS    OF   PROPERTY  [§217 

ject  to  every  kind  of  restriction;  debts  are  payable  out  of  movables, 
but  not  out  of  immovables,  for  this  would  be  an  indirect  means  of 
alienating  the  latter.  Movables  can  be  confiscated,  but  not  im- 
movables, for  the  same  reason;  the  rights  of  the  husband  or  the 
guardian  are  much  more  extensive  over  movables  than  over  im- 
movables; the  inlieritance  of  movables  is  founded  upon  the  pre- 
sumed will  of  the  deceased,  whereas  the  inheritance  of  immovables 
is  planned,  taking  into  account  the  rights  of  the  various  interested 
parties;  the  alienation  of  immovables  is  complicated  by  formalities, 
whereas  movables  are  freely  transmitted  from  hand  to  hand ;  mov- 
ables are  controlled  by  the  custom  of  the  domicile  of  the  owner, 
immovables  according  to  the  place  where  they  are  located.  The 
majority  of  these  rules  were  unknowni  to  Roman  legislation,  where 
the  distinction  between  movables  and  immovables  only  affected 
matters  of  secondary  importance  (system  of  marriage  portion, 
special  prohibition,  period  of  prescription,  theft). 

§  217.  Basis  of  this  Division  and  its  Extension.  —  This  divi- 
sion of  possessions  corresponds  to  the  economic  state  of  the  early 
Middle  Ages.  It  went  even  further  back,  if  we  admit  that  ancient 
Germania  passed  through  a  system  of  jointly  owned  property; 
the  land  would  have  belonged  to  the  community,  the  movables 
to  the  individual.  Following  the  invasions,  this  division  is  not 
formulated  in  theory;  but  in  the  documents  of  this  period  the 
land  and  its  accessories  are  often  contrasted  with  other  posses- 
sions. The  ownership  of  land  has  its  own  special  rules  in  matters 
of  inheritance,  in  the  relations  between  spouses,  with  regard  to 
that  which  concerns  alienations  and  credit;  the  division  is  already 
founded  along  these  important  lines.  Following  this,  this  division 
dominates  the  whole  of  the  Feudal  and  Customary  law;  industry 
and  business  have  pretty  nearly  disappeared;  the  precious  metals 
are  scarce;  -the  land  is  found  to  be  the  only  source  of  wealth:  ^ 
"res  mobilis,  res  vilis."  ^    As  soon  as  immovable  possessions  be- 

'  Pollock  and  Maitland  rightly  point  out  that  the  formula  "vilis  mobilium 
possessio"  has  been  mistakenly  exaggerated.  This  formula  is  true  relatively. 
The  Abbot  of  one  of  the  big  monasteries  would  have  been  very  much  as- 
tonished had  he  been  told  that  the  thousands  of  head  of  cattle  feeding  upon 
his  lands  had  no  value.  But,  if  one  had  wealth  consisting  of  movables,  it 
was  assumed  that  one  had  lands.  —  As  to  the  characteristic  of  movables  that 
they  may  be  restored  in  kind,  which  has  allowed  of  their  being  used  as  money 
("pecus,"  "pecunia")  cj.  ihid.  axid  Champeaux,  "Tlibsa,"  Y).  57  et  seq.  (criti- 
cism by  Stutz,  "Z.  S.  S.,"  1899). 

2  "Gl.  Dominia  Rerum"  on  "Pr.  Inst.,"  2,  6:  " quia  mobilium  rerum  vilis 
est  po.ssessio";  "Gl.  Neglecta,"  on  I,  47,  D,  41,  2:  "possessio  rei  mobiliis 
est  vilis  et  abjecta,  eo  quod  facile  perditur  etiam  ab  ignoranti." 

269 


§  217]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

came  the  most  valuable  of  all,  there  was  established  a  system 
which  was  designed  to  preserve  them  in  families,  and  it  is  with 
the  possession  of  the  soil  that  political  authority  was  connected.^ 
Far  from  becoming  weakened,  this  division  was  accentuated;  it 
even  took  in  incorporeal  things  which  are  not  susceptible  of  being 
moved  about  and,  as  a  consequence,  are  neither  movable  nor  im- 
movable, excepting  in  countries  of  written  law,  where  the  influence 
of  the  Roman  law  was  sufficiently  strong  to  make  of  them  a  cate- 
gory by  themselves.^  In  the  eighteenth  century  the  economists, 
who  this  time,  through  mere  chance,  agreed  with  the  jurists, 
changed  the  old  prejudice  into  a  learned  theory.  In  our  day  this 
"summa  divisio  rerum"  has  succeeded  in  being  upheld,  although 
the  majority  of  the  reasons  v/hich  led  to  its  establishment  have 
ceased  to  exist.  It  has  hardly  any  other  reason  for  existing  than 
the  necessity  of  facilitating  trade  in  movables. 

§  218.  Movables  and  Chattels.  —  Movables  are  things  which 
can  move  or  be  moved,  which  may  be  easily  displaced  and  car- 
ried about,  the  "fahrende  Habe"  of  the  German  law  as  contrasted 
with  immovables  or  things  not  movable.^  In  the  north  of  France, 
instead  of  movables  and  immovables,  in  the  common  language, 
they  say  "chatel"  or  "cateux"  ("catalla,"  Eng.  chattels)  and  "heri- 
tages" (Eng.  inheritances)  or  even,  as  in  Normandy,  "  fiefs."  ^ 
The  division  is  theoretically  formulated  in  the  thirteenth  century. 
For  Beaumanoir,  immovables  are  things  which  are  everlasting 
and  which  produce  annual  income;  perpetuity  and  the  produc- 
tion of  issues  characterize  immovables  even  more  than  the  im- 
portant fact  of  immobility;  it  is  these  two  qualities  which  make  up 
their  value,  whereas  movables  are  perishable  and  do  not  bring  in 
anything.  For  this  reason  there  were  immovable  possessions  which 
were  very  much  like  movables;  certain  of  the  Customs,  for  ex- 

^  Among  the  ancient  Scandinavians  the  possession  of  a  piece  of  immovable 
property  was  the  essential  condition  of  one's  having  a  right  to  property  in  the 
popular  assemblies:  "R.  h.  Dr.,"  1865,  394;  "Auct.  Vetus  de  Benef.,"  I, 
37  (testimony);  "Sachsensp.,"  1,  5,  1;  34,  1;  Fertile,  §  141. 

2  Gui  Pape,  q.  291;  Julien;  "El^m.  de  Jurispr.,"    p.    148,   etc.,  Aatruc, 

{).  323:  constituted  rents  are  movables  in  Languedoc,  cf.  Deghewiet,  p.  162: 
ooked  upon  as  immovables.  "Siete  Part.,"  5,  5,  4;  3,  2,  1  (valuable  mov- 
ables hkened  to  immovables):  "Confer,  des  Cout.,  de  Guenois,"  p.  363. 

^  P.  de  Fontaines,  33, 12;  Beaumanoir,  23  (movable  and  inheritance);  "Gr. 
Cout.,"  2,  12,  18;  Boutaric,  I,  74;  Lamoignon,  "  Arr.,"  p.  54;  Bracton,  I,  1,  c.  1, 
"De  Rer.  Div."  —  German  law:  "haba,  pecunia,  Liegendes"  and  "fahrendes 
Gut,  Liegenschaft  Fahrniss";  Grimm.  "R.  A.,"  II  (4th  ed.).  —  On  the  word 
"averium,"  "averia,"  see  Du  Cange. 

*  "Summa,  Norm.,"  87,  2;  "Assise  au  Comte  Geffroy,"  Art.  5. — Black- 
stone,  II,  p.  246  ("Inheritances"). 

270 


Topic  l]  DIVISIONS   OF  PROPERTY  [§  219 

ample,  that  of  Artois,  qualified  them  as  chattels  and  treated  them 
as  movables  (inheritance,  etc.).  Such  were  trees  which  did  not 
bear  fruit,  and  buildings  appertaining  to  cultivation  which  could 
be  moved  about,  like  barns  and  cattle-sheds.  They  did  not  pre- 
cisely constitute  a  third  category  of  possessions;  they  were  in  a 
certain  degree  immovables  out  of  their  sphere,  for  the  reason  that 
they  did  not  come  up  to  the  accepted  idea  of  the  value  of  the 
immovable  inheritance.^ 

§219.  Inheritances  or  Immovables  are :  ^  1st.  The  land  and 
everything  which  is  an  integral  part  of  the  soil,  buildings,^  crops 
growing  on  branches  or  roots  ^  (the  " immovables  by  nature"  of  the 
Civil  Code).  2d.  The  movables  which  adhere  to  the  immovables 
in  the  quality  of  accessories  or  appendages  of  the  latter,^  but  only, 

^  Chattels  ("catalla,"  "capitalia,"  "cheptel"):  (o)  primitive  meaning, 
head  of  cattle,  herd;  for  example,  right  to  the  best  cattle  ("Besthaupt")  in 
the  inheritance  of  a  person  in  mortmain  (Civil  Code  of  1800,  "cheptel");  (b) 
as  in  the  old  times  the  majority  of  movable  possessions  consisted  in  herds  of 
cattle,  in  the  end  all  income  and  movables  came,  in  a  general  way,  to  be  called 
by  the  name  "catalla";  cf.  English  law:  goods  and  chattels;  Glanville,  in 
Houard,  I,  442;  P.  de  Fontaines,  33,  12:  movables  and  chattels;  (c)  special 
acceptation,  possessions  which  are  immovable  in  their  nature  but  treated  like 
movables  in  matters  of  inheritance:  "Artois,"  106;  "Lille,"  49;  "Hainaut," 
101,  etc.  Boutaric,  I,  74  (no  wise  men  draw  any  distinction  between  movables 
and  chattels).  However,  a  legacy  of  the  movables  does  not  include  the 
chattels:  see  Ragueau  {Brunei),  "Observ.,"  1757,  p.  847;  "Roisin,"  p.  72. 

2  "L.  Feud.,"  2,  1,  1;  "Jostice,"  p.  268. 

'  For  a  long  time  in  Germany  and  Belgium  the  house  is  classed  among  the 
movables,  because  it  is  made  of  wood  and  capable  of  being  transported: 
Chaisemartin,  p.  103;  Huber,  IV,  683.  Market  for  houses  at  Moscow  in 
the  eighteenth  century.  —  "Moulins,"  Beaumanoir,  23,  37;  Boutaric,  I,  74; 
"Paris,"  90;  Pothier,  235.  As  to  the  Swiss  "Urhab,"  a  collection  of  objects 
required  for  household  use  in  the  old  days,  cf.  Huber,  IV,  682,  6. 

*  Various  systems  with  respect  to  crops:  1st.  Movables  when  they  are  sep- 
arated from  the  soil:  "Gr.  Cout.,"  2,  12;  "Paris,"  92,  etc.  2d.  Movables 
by  anticipation  from  the  time  they  become  ripe:  "Reims,"  19;  "Artois," 
141;  Loysel,  214;  Pothier,  "Choses,"  no.  240.  Cf.  L.  22  Frim.,  year  VII: 
execution  on  standing  crops.  3d.  The  wheat  is  a  movable  as  soon  as  it  has 
been  sown,  the  grapes  as  soon  as  they  have  been  formed:  Beaumanoir,  23,  5; 
27,  13.  Cf.  as  to  this  "Acquiring  of  Crops,"  Huber,  IV,  684:  "Saat  sei  fahrende 
Habe."  Sale  of  the  standing  crops,  rights  of  mortgage  creditors.  —  In  leases 
of  possession  at  will  (Lower  Brittany),  edifices  and  superfices  (buildings  and 
crops)  are  the  property  of  the  tenant  and  treated  as  immovables  in  his  patri- 
mony (inheritance,  community,  etc.);  they  are  treated  as  movables  with 
respect  to  the  lessor.     Law  of  June  7th-August  6th,  1791,  Art.  9. 

^  As  to  the  theory  of  Accessories  or  dependencies,  "Zubehorde,"  "Per- 
tinenz,"  cf.  Stobbe,  §  65;  Heusler,  §  72;  Hubert,  149;  Kohler,  "Jahrb."  of 
Ihering,  1888,  22. — Roman  origins :  Dig.,  19,  1,  13-18;  33,  7  (accessories  in- 
cluded in  a  sale,  a  legacy).  During  the  Prankish  period  there  is  often  a 
question  in  deeds  as  to  tne  accessories  of  estates  (for  example,  "mancipia," 
colonists,  etc.).  The  wine-press,  the  urns  to  hold  the  wine,  are  looked  upon 
as  accessories  of  the  house:  Heusler,  I,  359.  —  It  was  reasons  of  an  economic 
nature  that  were  opposed  to  separating  the  accessories  from  the  main  property. 
It  was  thought  that  this  result  was  obtained  by  making  them  like  immovables. 
"  Accessorium  sequitur  naturam  rei  principalis."  —  Is  the  act  of  the  proprietor 

271 


§  219]  OWNERSHIP    AND    REAL    RIGHTS  [Chap.  II 

on  principle,  if  there  is  a  physical  connection  (fastened  by  iron 
or  nails,  affixed  in  plaster,  "Paris,"  90);  ^  it  is  only  as  an  exception 
that  the  common  law  of  the  Customs  looks  upon  an  encumbrance 
for  the  benefit  of  the  land  as  carrying  with  it  the  quality  of  im- 
movability (existing  category  of  "immovables  by  name").-  3d. 
Rights  over  the  land  which  are  like  the  ownership  because  of  their 
duration  (servitudes,  quit-rent,  and  rents)  and  rights  which,  ac- 
cording to  the  feudal  conception,  were  connected  with  the  land 
itself  (right  of  administering  justice,  toll,  socome).^  These  incor- 
poreal immovables,  as  they  are  already  called  by  the  "Grand 
Coutumier  de  France,"  are  rather  rights  than  the  objects  of  rights;  ^ 
in  classing  them  among  immovables  our  old  law  followed  the  ex- 
ample of  the  Romans,  who  made  of  ownership  a  corporeal  thing, 
because  they  did  not  separate  it  from  its  object.  It  is  true  that 
many  of  these  incorporeal  immovables  had  as  their  object  mov- 

necessary  for  this?  Neither  the  "Gr.  Cout.  de  Fr."  nor  Boutaric  demand  it; 
contra:  Lamoignon  in  his  "Arretes";  Pothier,  "Choses,"  no.  244;  "Com- 
munaute,"  47,  63. 

1  "Gr.  Cout.  de  Fr.,"  2,  11;  Boutaric,  1,  74;  Loysel,  217;  L'Hommeau, 
p.  366.  Cf.  German  expression:  "  erdfest  und  nagolfest."  —  Criticism  by  Pothier 
"Communaute,"  no.  47  et  seq.:  there  are  things  which,  without  being  at- 
tached firmly,  are  looked  upon  as  forming  a  portion  of  the  house,  and  others 
which,  although  fastened  firmly,  are  not  considered  as  a  portion  of  the  house. 
As  to  looking-glasses,  ibid.,  no.  55.  Pothier  does  not  distinguish  between  im- 
movables according  to  the  purposes  for  which  they  are  to  be  used  and  im- 
movables according  to  their  nature:  " Communaute,"  nos.  54,  58.  Cf. 
Civil  Code,  524,  525. 

2  Straw  and  manure  are  looked  upon  as  being  incorporated  in  the  farm, 
artillery  in  the  castle,  ornaments  in  the  chapel,  looking-glasses,  pictures, 
statues,  in  the  house;  building  materials  are  looked  upon  as  being  separate 
and  intended  for  reconstruction  {cf.  Civil  Code,  532;  Loysel,  218).  Pigeons  in 
pigeon-houses,  rabbits  in  rabbit  warrens,  and  fish  in  ponds  are  regarded  as 
immovables:  "Gr.  Cout.,"2,  18;  "Paris,"  91;  "  Orleans,"  74;  "Jostice,"p.  268 
(serf-heritage);  Gui  Pape,  q.  91.  Fish  in  a  basin  (reservoir),  pigeons  in  an 
aviary,  and  rabbits  in  a  rabbit-hutch  are  considered  as  movables:  Loysel,  215; 
Merlin,  see  "  Animaux."  Bees  and  beehives  are  movables  according  to  Pothier 
and  immovables  according  to  Chopin,  Lamoignon  and  Merlin.  Because  of  ex- 
cessive timidity  the  immovability  of  things  has  not  been  made  to  result  from 
the  mere  fact  of  what  they  are  intended  for:  objects  serving  for  cultiva- 
tion, domestic  animals,  agricultural  utensils,  seeds,  printing-presses,  etc.,  are 
looked  upon  as  movables:  Pothier,  "Cout.  d'Orleans,"  "Fiefs,"  no.  2.35  (which 
points  out  the  disadvantages  of  this  doctrine).  Lamoignon  in  his  "Arretes," 
wants  to  make  them  immovables.  The  Ordinance  of  1747  follows  this  doc- 
trine in  a  special  case  in  the  matter  of  substitutions  (cf.  Art.  1064  of  the  Civil 
Code)  and  the  Declaration  of  March,  1685,  with  regard  to  the  negroes  in  the 
colonies:  Masuer,  11,  IS;  30,  25  (serfs).  Cf.  the  old  Swiss  law:  everything 
wliich  is  necessary  for  the  development  of  the  land,  straw  and  manure,  domestic 
animals,  "mancipia"  (body  servants),  rights  of  use  on  "allmends,"  houses, 
granaries  and  barns:  Huher,  IV,  688. 

3  P.  de  Fontaines,  33,  12;  Masuer,  30,  24;  Blackstone,  II,  p.  250  (Fr.  trans.): 
"incorporeal  hereditaments." 

*  Controversy  on  this  point.  Cf.  Heusler,  loc.  cit.;  Pollock  and  Maitland, 
II,  123. 

272 


Topic  l]  DIVISIOXS   OF  PROPERTY  [§  220 

ables,  for  example,  the  collecting  of  a  sum  of  money  (toll,  etc.); 
but  they  were  almost  always  annexed  to  an  inheritance;  by  reason 
of  their  value  or  their  duration  they  were  similar  to  immovables; 
it  is  not  surprising  that  they  were  classified  as  belonging  under 
the  system  of  the  ownership  of  land.^  Thence  sprung  the  rela- 
tively modern  conception  of  immovables  according  to  the  use  to 
which  they  are  applied,  formulated  in  the  rule:  "Actio  quae  tendit 
ad  quid  mobile  mobilis;  ad  quid  immobile,  immobilis.  "^  4th. 
Finally,  for  these  same  reasons,  rights  like  established  rents  and 
salable  offices  which  had  movables  as  their  object,  but  which 
were  immovables  or  feudal  in  their  origin,  were  comprised  within 
the  class  of  immovables.^ 

§  220.  (II)  Personal  Belongings  and  Acquests.  —  Of  immov- 
ables, some  come  to  us  from  our  relatives  by  way  of  intestate  in- 
heritance; these  are  Personal  Belongings  or  hereditary  possessions;  * 
others  come  to  us  in  other  ways,  for  example,  we  buy  them;  these 
are  Acquests.^  This  distinction,  which  was  unknown  at  Rome, 
appeared  in  the  forms  and  deeds  of  the  Frankish  period  ("alodis 
parentum"  as  contrasted  with  "comparatum"  "  conquisitum");  ^ 
it  is  made  during  the  feudal  period  in  every  country  of  Customary 
law,^  and  even  in  countries  of  written  law  in  many  places.^    It  is 

^  Heuslcr,  I,  337,  example  of  disposal,  sale,  gift,  etc.,  affecting  an  office  and 
right  to  administer  justice,  a  right  of  fishing,  a  right  of  way,  etc.,  —  "  L.  Feud.," 
2,  1,  1.  —  Deghewiet,  p.  163,  places  seigniorial  rights,  offices,  rights  of  hunting, 
together  with  servitudes,  among  incorporeal  things. 

2  It  may  be  asked  whether  this  at  first  affected  real  rights  as  well  as  claims : 
Loysel,  210,  211:  "noms,  raisons  et  actions";  Pothier,  "Comm.,"  no.  69.  CJ. 
trans,  of  the  Civil  Code,  526:  "actions  which  tend  to  reclaim";  "Cout. 
d'Aoste,"  .5,  16:  actions  requisite  in  dealing  with  immovables.  —  Geneva,  Edicts 
of  1713,  24:  "names,  debts  and  actions  are  neither  movables  nor  immovables." 
C/.  countries  of  written  law.  —  In  English  law  chattels  real,  although  classified 
as  personal  property,  are  like  real  property.  They  are  rights  affecting  immova- 
bles, —  for  example,  the  lease  of  a  domain,  but  for  a  limited  time:  Littleton,  281. 

3  Lotjsel,  219,444  (rings,  jewels,  etc.);  Fline,  "N.H.,"  9,  35;  "Cout.  d'Aiglc," 
1772,  2,  4,  3  (land  on  which  stands  a  shop);  Viollet,  p.  620.  —  Clementines, 
"Be  V.  S.,"  5,  11,  1;  Kraut,  "Grundr.,"  p.  144  (Statute  of  Frankfort).— 
"Offices,"  I;  Bourjon,  I,  p.  360. 

4  Gri7nm,  "R.  A.,"  p.  49:3. 

5  Du  Cange,  see  "Proprium  Wisig.,"  4,  5,  1:  "propriae  res"  as  contrasted 
with  those  which  are  conferred  by  the  sovereign.  "Terra  aviatica":  "Rib.," 
56,  4;  "Sal.,"  72.  As  to  the  "terra  salica,"  -post,  "  Inheritance."  Ragueau,  see 
"Propre,"  "Naissant,"  "Papoage";  P.de  Fontaines,  15,  12:  principal  heritage. 
—  Cf.  German  "Eigen,"  from  whence  "  Eigenschaft "  and  "Eigenthum," 
property  (fourteenth  century).  "Stammgut,"  possession  belonging  to  the 
lineage  ("uodil,"  "odal").  "Erbe,"  "Erbeigen,"  as  contrasted  with  "Kau- 
feigcn":  "Tv.  de  Manu,"  9,  209. 

*  Marculfe,  2,  7  et  seq.;  TMvenin,  "Textes,"  Table. 

'  P.  de  Fontaines,  15,  12;  33,  12;  Beaumanoir,  14,  31;  44;  "Gr.  Cout.  de 
Fr.,"  2,  12;  Loysel,  222  et  seq.;  Latnoignon,  "Arr.,"  p.  66. 

*  "Bordeaux,  A.  C,"  59,  85;  "Agen,"  34;  "Tonneins,"  81,  etc.    Personal 

273 


§  220]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

to  be  connected  with  the  formation  of  the  family;  ^  the  latter  was 
a  true  legal  person,  with  an  inalienable  inheritance  ^  (or  pretty 
nearly  so),^  almost  like  the  domain  of  the  State;  its  existing  head 
was  less  the  owner  than  the  manager.  The  family  was  dis- 
integrated little  by  Iktle,  but  a  latent  right  of  joint  ownership 
remained  for  its  profit,  which  arose  at  certain  times  and  under 
certain  circumstances;  instead  of  affecting  all  the  immovables 
without  any  distinction,^  this  right  was  isolated  and  affected  only 
inheritances  properly  so  called,  possessions  which  had  been  ac- 
quired by  inheritance.^  The  other  possessions,  resulting  from 
the  personal  labor  and  industry,  and  the  economy,  of  the  indi- 
vidual, belonged  to  him  more  absolutely;  he  was  left  free  to 
dispose  of  them.^ 

§  221.  Alienation  "inter  vivos"  of  personal  belongings  was  only 
valid  in  olden  times  ^  when  it  was  done  with  the  consent  of  the 
family,^  that  is  to  say,  according  to  the  Customs,  with  that  of  the 

belongings  are  called  "bien  papoaux  avitius,"  "terre  de  lignage,"  etc.  — How- 
ever, in  a  general  way,  owing  to  the  influence  of  Roman  law,  the  system  of 
personal  belongings  was  never  in  vogue  in  countries  of  written  law. 

1  Everything  has  been  said  that  can  be  said  as  to  the  difficulty  which  the 
system  of  personal  belongings  caused  in  transactions  in  immovables;  but,  if 
it  is  to  be  fairly  judged,  one  should  take  into  account  the  advantages  of  every 
kind  which  the  old-time  constitution  of  the  family  offered.  —  Toullot,  "These," 
1886  ("Copr.de  Famille"). 

2  Cf.  Jobbe-Duval,  p.  66  et  seq.  ("Dr.  Compart");  "Fribourg,"  1120,  §  28; 
"Fueros  de  Najera,"  "Miranda."  Inalienability  among  the  Slavs  of  the 
South  in  localities  where  family  communities  existed;  in  the  towns  where  these 
communities  have  disappeared  the  repurchase  by  a  person  of  the  same  lineage 
is  made  use  of. 

^  Cf.  as  to  this,  "The  family  possessions  which  cannot  be  distrained  upon." 
"Homestead,"  "R6f.  Sociale,"  Feb.  1,  1894. 

^  Originally,  every  immovable  belonged  to  the  family,  even  the  acquest. 

*  Acquests  soon  became  changed  into  personal  belongings,  because  the 
father's  acquests  are  the  child's  personal  belongings. 

«  "T.  A.  C,  Norm.,"  13,  2. 

^  From  the  Frankish  period  on,  however,  we  find  documents  recognizing 
the  owner  as  being  free  to  alienate  (influence  of  the  Roman  law  and  of  the 
Church):  "Burg.,"  1;  "Bai.,"  1,  1;  "Alam.,"  1;  "Thuring.,"  13;  Sumner 
Maine,  "Anc.  Droit,"  p.  264.  Cf.  "Dipl.,"  II.  280  (charter  of  Count  Engle- 
bert,  709);  De  Rozikre,  272;  "Cart,  de  Redon,'^  nos.  226  et  seq. 

8  "Roth.,"  168  et  seq.;  "Burg.,"  1,  1;  24,  5;  "Bai.,"  1,  1;  "Sax.,"  62  et  seq.; 
Lacomblet,  "Urk.  d.  Niederrh.,"  127  (in  996).  Examples  of  intervention  on 
the  part  of  the  relatives  abound.  The  frequent  intervention  of  the  wife  or  of 
the  husband  was  to  be  accounted  for  because  of  their  reciprocal  rights  (dower, 
etc.).  Cf.,  however,  Jobb6-Duval,  op.  cit.;  "Dipl.,"  I,  24  (sixth  century); 
"M6m.  Antiq.  Quest,"  1847,  XIV,  75, 18;  "Jostice,"  p.  169.  —  One  of  the  most 
curious  examples  of  family  solidarity  in  either  civil  or  criminal  matters  (and, 
consequently,  one  which  isnot  affected  by  any  matterof  inheritance)  i.s  met  with 
in  the  right  of  "finport"  of  the  "T.  A.  C,  Bret,"  p.  142, 192,  etc.,  ed.  Planiol: 
the  plaintiff  at  law  was  held  bound  to  jom  as  parties  all  those  of  his  relatives 
who  could  have  taken  any  part  in  the  action;  if  this  was  not  done,  the  defend- 
ant did  not  have  to  reply :  Giraud,  "R.deL^g.,"  1843,  p.  599  ("LoisGalloises"). 
This  right  was  not  abolished  until  1539  on  the  occasion  of  the  first  official 

274 


Topic  l]  DIVISIONS   OF  PROPERTY  [§  221 

heir  presumptive  alone  or  with  that  of  the  near  relatives.^  As  an 
exception,  this  sort  of  ahenation  was  authorized  without  the  in- 
tervention of  the  relatives  in  cases  of  extreme  poverty  {poverty 
sworn  to)}  To  the  needs  of  the  body  those  of  the  soul  were  likened, 
and  disposals  "pro  remedio  animse"  were' equally  held  as  being 
lawful.^  As  often  happens,  the  exception  in  its  development  over- 
came the  rule;  however,  the  latter  was  very  far  from  disappearing 
entirely.'*  Practice  for  a  long  time  ^  retained  the  custom  of  the  in- 
tervention of  relatives  in  acts  of  alienation,  and  the  threatening 
clauses  by  means  of  which  it  was  sought  to  prevent  their  opposing 
these  deeds.  On  principle,  however,  any  alienation  was  permitted 
on  the  condition  of  previously  offering  the  personal  belonging  to 
the  relatives;  ^  they  were  given  the  preference  over  purchasers 

drawing  up  of  the  Custom  of  Brittany:  Chenon,  "L'Ancien  Dr.  dans  le  Mor- 
bihan,"  1894,  p.  19  (bibl.). 

1  Beseler,  "Erbvertr.,"  1,  48,  and  Lewis,  "Succession  d.  Erben.,"  p.  7,  teach 
that  the  right  of  the  relatives  did  not  exist  before  the  eleventh  century  except- 
ing in  Saxony  ("Sax.,"  62,  64;  "Sachsenspiegel,"  1,  34,  52).  But  wherever 
there  are  family  communities  it  exists  for  the  benefit  of  the  members  of  these 
communities  ("Ganerben,"  "coheredes");  the  employment  of  the  partition 
"inter  \'ivos"  restricted  the  number  of  the  latter;  only  descendants  were  able 
to  live  in  a  community  and  had  to  give  their  consent  to  do  so ;  collaterals  who 
were  excluded  from  the  community  by  the  effects  of  the  partition  could  not 
raise  any  claim.  When  partitions  fell  into  disuse  the  right  of  more  distant 
relatives  once  more  made  its  appearance.  In  Saxony,  where  communities  did 
not  exist,  the  reservation  gave  the  heir  the  same  power:  Heusler,  §  89.  It  was 
not  a  rare  thing  for  the  consent  of  all  the  relatives  to  be  obtained  "ad  majorem 
cautelam."  —  If  this  consent  was  not  obtained,  the  relatives  who  should  have 
given  it  had  the  right  to  take  back  the  property  from  the  person  acquiring  it 
within  a  year  and  a  day:  "Sachsensp.,"  I,  52,  1.  Controversy  as  to  the  nature 
of  this  action,  which  must  be  looked  upon  as  a  real  action. 

2  Ragueau,  see  "Jostice,"  169,  256;  "Fors  de  Morlaas,"  31,  71  and  80;  cf. 
"For."  of  1552,  "R.  de  Contr.,"  Art.  6;  Cordier,  "R.  h.  Dr.,"  1868,  p.  551;  "Fri- 
bourg"  in  1120,  §28;  "Artois,"24;  "A.  C,  Lorris,"  c.  16;  "Azun,"  in  1306,  87 
(Lagreze,  "Hist,  du  Dr.  dans  les  Pyrenees,"  p.  450);  La  Taumassiere,  "C.  de 
Bourges,"  XIV,  p.  439.  By  making  an  heir  presumptive  participate  in  the 
sale,  difficulties  as  to  knowing  whether  there  had  or  had  not  been  any  neces- 
sity of  making  analienation  were  avoided:  Dumoulin,  on  "A.  C,  Artois,"  50; 
Brodeau,  on  "A.  C,  Boulenois,"  Art.  124.  Various  Charters.  —  In  case  an  alien- 
ation were  made  because  of  poverty  sworn  to  it  was  natural  to  give  the  prefer- 
Giicp  to  rPiOit  1  vos 

5  "Liut.,"  19,  73;  "L.  Alam.,"  2,  1;  cf.  "L.  Feud.,"  2,  3,  1  and  9,  1.— 
"Capit.,"  818,  c.  6  (I,  282);  "Cap.,"  803,  6;  817,  7. 

*  Survivals  in  the  fifteenth  century:  "Gr.  Cout.,"  p.  280;  Ragueau,  "Gloss.," 
see  "Pauvrct6  Jur(5e."  —  Sixteenth  century:  "Artois,"  76  (necessity  sworn  to 
or  consent  of  relatives  or  reinvestment) :  "Boulenois,  A.  C,"  73;  "N.  C,"  124; 
Ponthieu,  19.  —  CJ.  Langle,  29  (prohibition  of  making  a  will  contrary  to  the 
wish  of  near  relatives).  —  Soule,  17,  1,  2;  26,  4;  Labourt,  5,  1,  2;  11,  4; 
"Navarre,  Rubr.,"  20,  3.  Repurchase  of  domestic  animals:  Labourt,  6,  1,  2; 
cf.  Cordier,  "R.  h.  Dr.,"  XIV,  597.  —  "Bareges,"  in  1670,  4,  5. 

^  Acts  of  eleventh  century:  Fertile,  III,  419. 

8  "Jeremiah,"  xxxii,  7;  "Stad.  Fam.  s.  Petri  Worm.,"  Art.  2,  6;  "L.Sax.," 
64.  "Offer  to  the  next  of  kin,"  that  is  to  say,  to  the  nearest  relative  ("T.  A. 
C,  Bret.").    Cf.  post,  "Repurchase." 

275 


§221]  OWXERSHIP   AND   REAL   RIGHTS  [Chap.  II 

who  were  strangers;  but  if  they  refused  to  avail  themselves  of  this 
right  of  pre-emption,  an  alienation  made  to  strangers  could  be  op- 
posed to  them.  In  the  end  every  alienation  was  made  valid,  even 
if  it  had  not  been  preceded  by  an  ofPer  to  the  relatives;  but  the 
latter  had  the  power  to  substitute  themselves  for  the  purchaser 
and  to  take  the  bargain  upon  themselves  ^  {repurchase  by  person 
of  same  lineage)  within  a  period  of  a  year  and  a  day.^ 

§  222.  The  Same.  —  Alienation  by  means  of  a  will  was  still 
more  liable  than  alienation  "inter  vivos"  to  deplete  the  family. 
For  a  long  time  there  was  no  reason  to  apprehend  this  danger, 
because  the  will  was  unknown  or  very  rare;  the  day  when  this  act 
came  into  practice  the  course  of  restraining  the  rights  of  the  tes- 
tator was  pursued;  the  Custom  fixed  upon  one-fifth  of  his  per- 
sonal belongings  as  the  rather  small  portion  which  he  was  free  to 
dispose  of  by  will  (reservation  of  four-fifths).  One  may  be  sur- 
prised that  gifts  were  not  treated  like  wills.  Our  old  authors 
justified  the  distinction  by  saying  that  as  gifts  were  the  outcome 
of  natural  law,  and  wills  of  civil  law,  the  law  had  not  been  able  to 
limit  the  freedom  of  giving  as  it  has  limited  the  freedom  of  be- 
queathing by  will.  But  these  considerations  are  of  too  modern  a 
character  to  account  for  the  old  distinction.  The  legislator  of 
former  times  would  have  had  no  scruples  of  this  sort.  That  which 
prevented  him  from  establishing  a  reservation  as  far  as  gifts  were 
concerned  was  that  the  rule  "to  give  and  to  keep  is  invalid"  con- 
stituted for  the  donor  a  powerful  brake,  without  reckoning  the 
instinctive  repugnance,  fortified  by  custom,  against  stripping 
oneself  before  dying.^ 

§  223.  Inheritance  of  Personal  Belongings.  —  When  the  in- 
heritance of  a  person  took  effect,  his  patrimony  was  divided  into 
two  parts:  on  the  one  hand,  movables  and  acquests  which  de- 
volved upon  the  nearest  relatives,  because  this  was  probably  the 
wish  of  the  deceased;  on  the  other  hand,  the  personal  belongings, 
which  the  family  took  without  its  being  necessary  to  take  into 

1  An  inheritance  acquired  by  way  of  a  repurchase  belongs  to  the  person  of 
the  same  lineage  who  buys  back  the  property;  were  this  not  so,  the  object 
of  this  institution  would  not  be  properly  attained.  — Offices,  immovables  of 
recent  date  and  of  a  special  nature,  were  not  subject  to  the  repurchase, 
nor  were  constituted  rents.  The  reservation,  on  the  other  hand,  was  appUed 
to  them.  ,       «.    • 

2  Ileusler,  90,  looks  upon  the  repurchase  as  being  as  old  as  the  olTermg  of 
the  property  to  the  relatives.  Cf.post,  "Repurchase."  Contra,  Jobbe-Duval, 
p.  87  (Swedish  law).  . 

3  "He  who  gives  his  property  before  he  dies  is  preparing  himself  to  suffer 
greatly  soon." 

276 


Topic  l]  DIVISIONS   OF   PROPERTY  [§  225 

account  the  presumed  will  of  the  dead  man.^  The  rule:  Personal 
belongings  do  not  ascend,  first  of  all  excluded  ascendants  from 
inheriting  personal  belongings  because  this  sort  of  inlieritance 
seemed  unnatural;  following  this,  it  was  extended  in  this  sense, 
that  personal  belongings  coming  from  the  paternal  line  should 
not  go  to  the  maternal  relatives,  and  vice  versa:  "paterna  paternis, 
materna  maternis." "  Thenceforth  the  mass  of  personal  belongings 
must  be  divided  (system  of  the  Gap)  between  the  two  lines  from 
which  it  came.^  The  assigning  of  personal  belongings  to  each 
line  varies  according  to  the  Customs;  some,  Customs  relating  to  the 
stock,  only  summoned  the  descendants  of  the  first  one  to  acquire 
these  belongings  in  the  direct  line;^  others.  Customs  of  side  and 
line,  gave  them  to  one  of  his  relatives,  either  in  the  direct  or  col- 
lateral line;  the  third  class,  Customs  of  side  alone,  gave  all  the 
maternal  possessions  to  the  nearest  maternal  relative,  without 
seeking  the  origin  of  the  property  and  without  seeking  to  know 
wdio  was  the  first  one  to  acquire  it;  it  was  the  same  thing  with 
property  coming  from  the  paternal  side,  which  was  given  to  the 
nearest  relative  on  the  father's  side. 

§  224.  Jointly  held  Personal  Belongings.  —  Care  must  be 
taken  not  to  confuse  inherited  personal  belongings,  the  only  ones 
which  are  in  question  here,  with  jointly  held  personal  belongings. 
The  latter  are  undoubtedly,  first  of  all,  the  personal  belongings 
which  are  inherited  from  each  spouse;  but  they  also  include  ac- 
quests which  were  possessed  by  them  before  the  marriage.  These 
acquests,  which  are  personal  belongings  jointly  owned,  are  con- 
trasted with  jointly  acquired  property,  or  possessions  acquired 
during  the  marriage,  and,  as  a  consequence,  by  both  of  the  spouses. 
In  the  same  way,  personal  belongings  by  agreement,  established  by 
the  contract  of  marriage,  are  only  personal  belongings  so  far  as 
they  relate  to  the  spouses  between  themselves;  they  are  not  sub- 
ject to  the  system  of  the  inheritance  of  personal  belongings.^ 

§  225.  The  Same.  —  Inherited  personal  belongings  are  real  or 
fictitious:   1st.   Real  personal  belongings.  —  (a)   Immovables  ac- 

1  It  is  often  found  that  an  order  presumed  to  be  based  upon  affections  is 
not  followed,  because  of  the  greater  interest  of  the  family. 

2  The  Enjrlish  law  adhered  to  the  old  rule  of  the  exclusion  of  ascendants 
by  collaterals  until  1833. 

^  Local  variation,  for  example,  succession  by  agnates:  ArgoTi,  2,  24. 

*  Same  rule  in  the  English  law:  one  must  show  that  one  is  the  nearest  rela- 
tive of  the  purchaser,  —  that  is  to  say,  of  the  first  person  acquiring  the  prop- 
erty, and  not  of  the  person  who  was  last  in  possession. 

6  Pothier,  "Tr.  des  Propres,"  nos.  1,  23  (ed.  Bucjnet,  VIII,  p.  572). 

277 


§  225]  OTVT^ERSHIP   AND   REAL   RIGHTS  [Chap.  II 

quired  by  intestate  inheritance.  A  distinction  is  drawn  between 
past  personal  belongings  and  present  personal  belongings,  the  for- 
mer being  derived  from  the  ancestors,  the  latter  collected  by  the 
son  from  the  inheritance  of  the  father:  ^  "  the  acquest  of  the  father 
is  the  personal  belonging  of  the  child."  ^ — (b)  Immovables  ac- 
quired by  way  of  gift  or  legacy  from  a  person  of  whom  one  is  the 
heir  presumptive:^  this  is  only  an  advancement  of  heirship;  con- 
sequently, it  is  perfectly  natural  for  possessions  acquired  in  this 
way  to  be  treated  by  way  of  anticipation  before  the  opening  of  an 
inheritance  to  which  one  may  be  called,  as  inherited  personal  be- 
longings; at  the  same  time,  the  Customs  of  Paris  and  of  Orleans 
draw  a  distinction:  if  the  gift  takes  place  in  the  direct  line  the 
possession  is  a  personal  belonging;  if  it  takes  place  in  the  collateral 
line,  it  is  an  acquest  in  conformity  with  the  rule:  "the  acquest  is 
not  as  good  as  the  gift."  ^  —  2d.  Fictitious  personal  belongings  or 
those  received  by  representation.  These  are  acquests  which  by 
way  of  actual  subrogation  °  take  the  place  of  personal  belongings. 
Thus,  the  inheritance  acquired  in  exchange  for  a  personal  belong- 
ing is  a  personal  belonging  like  the  latter;  '^  the  immovable  acquired 
as  a  reinvestment,  that  is  to  say,  with  the  price  of  the  sale  of 
a  personal  belonging,  is  also  subrogated  to  the  latter,  —  at  least, 
for  the  benefit  of  minors;^  as  to  those  who  have  attained  majority 
the  matter  is  in  dispute.^ 

§  226.  Proofs.  —  The  tendency  to  restrict  the  rights  of  the 
family,  of  which  we  have  already  seen  the  effects  with  regard  to 
the  system  of  personal  belongings,  is  also  felt  as  far  as  proofs  are 
concerned.    The  old  law  seems  to  have  considered  all  immovables 

1  "F  deBearn,"  "R.  de  Contr.,"  5:  a  family  possession  if  it  has  been  owned 
by  three  persons  of  the  same  lineage. 

2  Beaiimanoir,  14,  31;  Loysel,  223. 

'  These  possessions  have  come  into  the  family  "jure  sanguinis";  the  fact 
of  the  donee  being  a  relative  was  the  motive  of  the  gift:  —  certain  Mss.  of 
the  "Gr.  Cout.,"  2,  34  (p.  350,  n.  2):  gift  or  even  purchase;  "Anjou,"  513; 
"Maine,"  507;  "Nivernais,"  26,  14;  "Bourbonnais,"  283;  Loysel,  221,  224: 
the  property  is  a  personal  belonging.  —  "Paris,"  246  (acquest);  133  (personal 
belonging  with  regard  to  repurchase) ;  Desmares,  145,  298,  397. 

*  Loysel,  655,  656. 

6  Flach,  "R.  h.  Dr.,"  XIV  and  XV. 

«  Loysel,  225;  Beaumanoir,  44,  6;  "Gr.  Cout.,"  2,  12,  p.  243;  Lamoignon, 
"Arr.  des  Propres,"  23;  Boutaric,!,  74;  "Paris,"  143;  "Orleans,"  385:  in  case 
there  is  a  settlement,  the  property  is  an  acquest  to  the  amount  of  the  "  tournes  " 
but  the  heir  who  has  the  personal  belongings  may  keep  them.  —  Cf.  post, 
"Repurchase." 

^  No  subrogation  of  absolute  right,  as  a  general  thing:  "  Paris,"  94. 

8  Loyseau,  "Offices,"  2,  7,  54  (one  has  no  right  to  disturb  the  legal  classi- 
fication of  possessions).  —  Tiraqueau  and  Renusson  admit  the  subrogation  by 
agreement. 

278 


Topic  l]  DIVISIONS   OF  PROPERTY  [§  227 

as  personal  belongings  until  the  contrary  was  proved.  Loysel,  on 
the  contrary/  lays  down  an  opposite  rule:  "all  possessions  are 
looked  upon  as  acquests.- 

§  227.  (Ill)  Things  which  do  not  Come  Within  Trade.  Royal 
Prerogatives.^  —  The  royal  or  seigniorial  domain  and  rights  we 
have  previously  discussed;  ^  it  is  a  subject  to  which  we  shall  not 
return/''  but  it  is  indispensable  to  say  a  few  words  here  upon  the 
theory  of  royal  prerogatives  in  their  relation  to  private  law.^  In 
1158,  at  the  Diet  of  Roncaglia,  an  official  enumeration  of  them 
had  already  been  given,  which  was  a  simple  codification  of  previ- 
ous custom:  "Regalia  sunt  hec:  Arimannie,^  vie  publice,  flumina 
navigabilia  et  ex  quibus  fiunt  navigabilia,  portus,  ripatica,  vecti- 

1  "Placites  de  Normandie"  {Lauriere,  on  Loysel);  "A.  C,  Paris,"  1,  5. 

2  222;  Pothier,  nos.  72,  107. 

*  The  "regalia  "  are  dealt  with  in  the  communities  of  the  "libri  Feudorum" 
and  generally  in  all  the  authors  who  deal  with  the  domain  and  the  seigniorial 
rights.  The  notes  by  Gregorio  Lopez  on  the  "Siete  Part."  refer  one  to  the 
writings  of  the  Post-Glossatators,  see  Table,  "Regalia."  Treatises  by: 
Peregrinus,  De  Luca,Carpzow,  etc.  More  recent  works  by  Hullmann,  "Re- 
galien,"  1806;  Strauch,id.,  1865.  General  treatises:  Heusler,  §  73;  Schroeder, 
"Z.  S.  S.,  G.  A.,"  II,  62;  "Handb.,"  see  Table;  Stobbe,  §64;  Hiiber,  §  120; 
Brunner,  "D.  R.  G.,"  §  68;  Thudichum,  §  75  et  seq.;  Aniira,  §  61;  Siegel,  §  86; 
Pertile,  §  147;  Salvioli,  §  219.  —  On  the  "res  religiose,"  church  furniture,  etc., 
cf.  Hiiber,  IV,  690;  Duval,  "Instit.  du  Dr.  Fr.,"  I,  2,  c.  1;  Deghewiet,  p.  83; 
Faber,  "Inst,  de  Rer.  Div.";  Pasquier,  ibid.;  E.  Mayer,  "Deut.  u.  Franz. 
Verfassungsg.,"  1899. 

*  See  "Domain  of  the  Crown"  [Brissaud's  "Public  Law."  —  Transl.] 

^  The  Law  of  Nov.  22  and  Dec.  16,  1790,  gave  the  ownership  of  them  to  the 
nation.  From  the  Revolutionary  laws  there  resulted  the  distinction  between 
the  public  or  inalienable  domain  and  the  private  or  alienable  domain.  See 
especially  Law  of  15th  and  16th  Flor.,  year  X. 

^  By  prerogatives  we  here  understand  a  group  of  rights  bearing  upon 
things  left  to  the  use  of  the  public  or  upon  things  which  are  treated  like  them; 
the  Feudal  law  sees  in  them  the  property  of  the  king.  CJ.  "jura,  majestatis," 
at  Rome.  Heusler,  §  74,  characterizes  them  by  two  traits :  they  are  rights  of 
pubhc  power  ("Regierungsrechte")  and  of  use  ("nutzbare"),  inheritable, 
alienable,  etc.  He  outlines  their  history  in  approximately  the  following 
manner.  From  the  time  of  the  Carolingians  the  prerogative  of  j)ublic  ways 
and  rivers  is  maintained  in  the  imperial  statutes;  from  this  there  sprang  up 
or  were  developed  the  innumerable  tolls  of  feudal  times;  the  right  of  fishing 
only  belongs  to  the  king  where  the  river  is  bordered  by  the  royal  domain; 
one  can  still  say  with  the  "Sachsensp.,"  2,  28,  4:  "Strome  sind  gemein  zu 
fischen  darin."  The  prerogative  of  mines  makes  its  appearance  at  a  suf- 
ficiently early  period  {cf.  Act  of  1122)  to  raise  the  question  whether  the 
ownership  of  the  soil  ever  carried  with  it  that  of  the  mine.  The  prerogative 
of  hunting  was  introduced  with  difficulty,  "Sachsensp.,"  2,  61.  Under  the 
Ottos  the  peasants  lost  the  right  to  carry  arms;  they  also  lost  the  freedom  of 
hunting.  Once  access  to  the  forests  was  prohibited  for  purposes  of  hunting, 
it  also  became  necessary  to  prohibit  it  for  the  carrying  away  of  wood;  and 
thus  the  idea  that  forests,  which  were  formerly  left  to  the  use  of  all,  were  the 
property  of  the  king,  was  arrived  at:  Grimm,  "R.  A.,"  248.  All  these  pre- 
rogatives consisted  in  rights  over  things  which  because  of  their  very  nature 
arc  not  included  within  i\\c,  property  of  the  treasury. 

'  Du  Cange,  see  "Herimanni." 

279 


§  227]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

galia  que  vulgo  dicimtur  tholonea,  monete,  mulctarum  penarum- 
que  compendia,  bona  vacantia  et  .  .  .  bona  condemnatorum 
.  .  .  argentariae  .  .  .  piscationum  redditus  et  salinarum  .  .  .  di- 
midium  thesauri  inventi  in  loco  Cesaris,  non  data  opera,  vel  in 
loco  religioso."  ^ 

The  point  of  departure  of  this  theory  is  in  the  conferring  upon 
agrarian  communities,  or  the  owners  of  large  domains,  of  unculti- 
vated lands  and  possessions  which  are  ill  suited  to  individual 
ownership:  public  ways,  waters  and  forests,  shores,  mines,  quar- 
ries and  treasures.  The  Feudal  law",  which  did  not  distinguish  very 
clearly  between  sovereignty  and  ownership,  saw  therein  an  owner- 
ship belonging  to  the  sovereign,  the  king,  or  the  lord;  it  did  not 
limit  itself  to  giving  him  a  police  powder  over  this  category  of 
things.  Care,  however,  was  not  always  taken  not  to  fall  into  an 
exaggeration  which,  in  order  to  correspond  with  the  logic  of  the 
feudal  system,  and  perhaps  of  the  old  law,  it  was  difficult  to  under- 
stand in  the  light  of  modern  principles.  That  the  earth,  and  even 
the  sea,  belonged  to  the  king,^  is  a  rather  widespread  conception 
among  the  old  jurists;  private  ownership  puts  a  restraint  most 
often  upon  the  right  of  the  State,  but  on  the  slightest  provoca- 
tion the  latter  reappears;  for  example,  it  applies  to  lands  aban- 
doned by  their  owner;  the  cases  where  it  is  thus  understood  as 
though  by  accident  are  set  aside.  Its  ordinary  domain  takes  in  the 
category  of  possessions  which  we  have  just  enumerated,  and  upon 
which  private  ownership  has  not  placed  its  stamp.  To  strict 
logicians,  the  king  or  the  State  appeared  as  the  only  proprietor  of 
the  land,  private  ownership  as  a  limited  and  rather  precarious 
concession,  the  prerogatives  as  an  attribute  of  the  right  of  owner- 
ship of  the  State  over  the  possessions  abandoned  to  the  use  of 
everybody.^    Against  these  theories  the  Roman  doctrines,  which 

1  "L.  Feud.,"  2,  56.  — See  Du  Cange;  G.  Blondel,  "Et.  s.  les  Dr.  R6galiens 
et  la  Const,  de  Roncaglia,  M^l.  Paul  Fabre,"  1902,  236. 

2  Let  U.S  recall  the  controversy  between  Grotius  and  Selden  on  the  subject 
of  freedom  of  the  seas;  from  the  fourteenth  century  on,  Angelus  of  Perusia 
upholds  Grotius'  thesis.  During  the  thirteenth  century,  Venice  proclaimed 
her  rights  over  the  Adriatic  (each  year  on  Ascension  Day  the  Doge  marries 
the  sea):  Fertile,  III,  169;  Pasquier,  "Inst.,"  p.  170. 

^  Schroeder,  "Handbuch,"  p.  206;  "Die  Franken,"  "Z.  S.  S.,"  loc.cit., 
admits  the  existence  of  the  prerogative  of  the  soil  ("Bodenregal,"  "Obereigen- 
thum")  from  the  Prankish  period,  and  causes  the  other  prerogative  rights  to 
spring  therefrom  logically.  Cf.  "L.  Sal.,"  14,  4.  The  origin  and  the  history 
of  the  latter  thus  become  very  simple.  But  this  theory  does  not  seem  to  be 
very  well  established.  Among  the  more  recent  authors  it  is  not  accepted,  — 
for  example,  neither  by  Heuslcr  nor  by  Brunner.  The  system  of  prerogatives, 
with  the  extension  which  it  is  given  by  Schroeder,  does  not  seem  to  us  to  date 

280 


Topic  l]  DIVISIONS   OF  PROPERTY  [§  228 

were  more  individualistic  and  more  favorable  to  private  owner- 
ship, did  not  cease  to  fight;  public  law,  in  breaking  away  from  the 
feudal  ideas,  divided  sovereignty  from  ownership;  of  the  royal 
prerogatives  there  remained  scarcely  anything  but  the  police 
power. 

§  228.  Prerogative  over  the  Ground.^  —  Possessions  without 
an  ov^ner,  uncultivated  lands  and  estrays,  belonged  to  the  chief 
justice  (Loysel,  no.  277).  By  possessions  without  an  owner  are 
understood  lands  that  have  no  master,  that  is  to  say,  lands  which 
have  not  yet  been  appropriated,  or  those  which  have  been  for- 
saken by  their  owner.^  Inheritances  by  tvay  of  escheat  are  treated 
like  possessions  without  an  owner;  ^  but  this  is  not  so  with  regard 
to  common  lands,^  and  still  less  with  regard  to  possessions  whose 
master  has  a  disputable  right  to  them;  these  are  not  possessions 
which  are  not  in  occupation,  and  the  lord  justice  is  not  authorized 
to  reclaim  them;  as  soon  as  they  are  occupied  by  a  tenant,  how- 
ever irregular  may  be  his  claim,  the  property  cannot  be  said  to  be 
without  an  owner.  The  Law  of  August  13,  1791,  substituted  the 
king  for  the  lord  justice,  drawing  its  inspiration  in  this  matter 
from  the  precedents  of  the  monarchic  period  (c/.  Civil  Code,  539, 
713). 5 

back  further  than  feudalism.  Cf.  "Freeholds,"  "  Right  Universally  Reserved 
to  the  Sovereign  in  Feudal  Lands."     UHommeau,  p.  92. 

'  If  lands  without  an  owner  are  regarded  as  "res  nullius,"  then  individuals 
may  occupy  them  without  the  necessity  of  any  formality.  On  the  other  hand, 
if  we  admit  that  they  belong  to  the  royal  communities  or  to  the  sovereign, 
their  occupation  is  only  valid  when  it  shall  have  taken  place  with  the  consent 
(expressed  or  implied)  of  the  latter.  The  documents  are  not  very  explicit: 
seeThevenin,  "Textes,"  Table.  "Praecept.  pro  Hispanis"  in  812  ("Cap.,"  I, 
169).  As  to  the"aprisio,"  "captura,"  " neubruch,"  c/.  5ese/er,  "DerNeubruch 
nach  den  Alt.  Deutsch  R.,"  1868  (in  the  "Sybote  Bethm.  Holweg.  Obi."); 
Waitz,  "V.  G.,"  IV,  136;  Amira,  p.  170;  Meitzen,  "Siedelung.  u.  Agrarwesend. 
Germanen,"  1895;  Blumenstock,  I,  260;  Heusler,  §  91.  See  also  "Freeholds," 
("Right  Universally  Reserved  to  the  Sovereign  in  Feudal  Lands");  Brunner, 
I,  205;  II,  75;  Mayer,  §  10. 

2  Heusler,  I,  65,  cites  an  Act  of  1018:  "Silvam  in  cultam  et  ob  hoc  nostre 
proprietati  deputatem."  Schupfer,  "Allodio,"  37.  It  is  not  a  rare  thing  to 
find  in  the  various  legislations  rules  which  recall  the  "adjectivo"  or  the  "cpi- 
bole"  of  the  Lower  Empire:  at  the  end  of  a  certain  time  lands  wliich  arc  aban- 
doned by  their  owner  return  to  the  State,  which  then  grants  them  to  others. 
The  legislation  of  the  emperors  of  Germany  and  that  of  the  popes  contain 
provisions  of  this  nature.  They  are  above  all  measures  of  a  fiscal  nature  like 
the  laws  of  the  Lower  Empire:  Perlile,  IV,  274.  Sixtus  IV,  1476,  authorizes 
the  first  comer  to  cultivate  the  lands  of  estates  left  uncultivated,  and,  also, 
this  could  be  done  against  the  will  of  the  owner.  Prerogative  of  pasture  in 
Italy  {ib.,  IV,  417).  —  L'Hommeau,  p.  223;  Astrm,  p.  273;  Pasquier,  "Inst.," 
p.  189. 

'  See  Ferrihre,  L'Hommeau,  p.  222  ("Abandoned  Possessions"). 

*  Fertile,  III,  336. 
^  ^  CJ.  Law  of  the  3d  Frim.,  year  VII:   if  an  individual  abandons  hia  land 

281 


§  229J  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

§  229.  Expropriation.^  —  The  conception  of  the  superior  right 
of  the  State  over  the  ground  easily  justified  expropriation.^  The 
latter  was  only  too  often  made  use  of  without  the  excuse  of  neces- 
sity; guarantees  in  favor  of  the  owner  scarcely  made  their  ap- 
pearance until  towards  the  seventeenth  century,  on  the  occasion 
of  extensive  public  works.  And,  moreover,  there  is  no  precise 
legislation  upon  this  point.  Abuses  were  always  possible.  It  is 
in  order  to  condemn  them  that  the  "Declaration  of  the  Rights  of 
Man"  proclaimed  in  Art.  17  that  private  ownership  was  inviolable 
and  sacred ;  it  only  authorized  expropriation  for  a  reason  of  public 
necessity  (the  Civil  Code,  Art.  545,  says:  public  advantage)  and 
upon  condition  of  an  indemnity. 

§  230.  Confiscation.^  —  Penal  confiscation  gives  public  author- 
ity an  easy  means  of  taking  possession  of  the  property  of  individ- 
uals.   It  was  only  abolished  by  the  Charter  of  1814. 

§  231.  Property  of  the  Enemy.^  —  The  old  law  did  not  recog- 
nize the  enemy's  property.  The  taking  of  booty  was  one  means 
of  acquiring  property  for  the  benefit  of  the  conquering  State,  or 
even  for  the  profit  of  the  individual  who  took  it  ("occupatio  bel- 
lica").  As  a  general  rule,  this  acquisition  takes  place  for  the 
benefit  of  the  State;  ^  however,  the  practice  of  ransom,  which  was 
still  widespread  in  the  sixteenth  century,  the  sacking  of  towns, 
which  was  still  authorized  in  the  eighteenth  century,  bear  witness 
to  the  existence  of  an  individual  right.^  In  our  day  the  private 
property  of  the  enemy  is  as  much  respected  as  national  property, 

because  it  does  not  produce  enough  to  pay  his  taxes,  the  abandonment  ac- 
crues to  the  advantage  of  the  Commune,  and  not  of  the  State.  Cf.  H.  de 
Pansey,  "Des  Biens  Communaux."  In  the  enumeration  of  waste  lands  of 
the  Law  of  1791  we  find  "  garrigues  "  (uncultivated  lands),  "  flegards  "  (common 
passage-way),  and  "wareschaix"  (waste  lands  for  public  pasture):  P.  Errera, 
"Les  Warechaix,"  1894  ("Soc.  Archeol.  Bruxelles");  "Les  Masuirs,"  1891. 

1  Post,  "Servitudes":  Tamassia,  "Arch.  Giur.,"  1885;  Salvioli,  §  224 
(bibl.);  PertiU,  §  143;  Schupfer,  "Allodio,"  §  29;  Meyer,  "Expropr.,"  1868; 
Gierke,  "Althusius,"  p.  268. 

2  Italy:  Cassioli,  "  Var.,"  V,  20.  The  statutes  of  the  Italian  towns  provide 
for  cases  of  expropriation:  construction  of  walls,  towers,  etc.  (1156  at  Genoa, 
etc.).  Fixing  of  the  indemnity  by  arbitrators.  Cases  of  expropriation  in  the 
interest  of  individuals  are  met  with,  cf.  Pertile,  III,  360  et  seq. 

»  Loysel,  839  et  seq.;  "T.  A.  C,  Norm.,"  c.  88;  "Summa  Norm.,"  20,  22; 
"T.  A.  C,  Bret.,"  ed.  Planiol,  see  Table;  "Lorris,"  IV;  Britz,  p.  656;  "Siete 
Part.,"  see  Table;  GwPape,  p.  341;  Astruc,  \i.2%0;  Pasquier," Inst.,"  p.  183. 
—  R.  Caillemer,  "Etudes  sur  la  Confisc.  et  I'Admin.  des  Successions,"  1901; 
E.  Mayer,  §  17. 

*  Benedix,  "De  Prseda  inde  ab  Antiquitate,"  1874;  Mas-Latrie,  "Dr. 
de  Marque  au  Moyen  Age,"  1875;  Pertile,  III,  166;  Pasquier,  "Inst.," 
p.  176. 

5  The  vase  of  Soissons:  Brunner,  II,  76. 

6  Pothier,  "Prop.,"  no.  88  et  seq.;  Gui  Pape,  "Dec,"  113;  cf.  32  (reprisals). 

282 


Topic  l]  DIVISIONS  OF  PROPERTY  [§  232 

because  war  is  considered  as  a  struggle  between  States,  and  not 
between  individuals. 

§  232.  Prerogative  of  Mines.^  —  The  current  axiom  that  prop- 
erty in  the  ground  carries  with  it  property  in  what  is  above  it  and 
what  is  under  it  (Cinus  of  Pistoia:  "cujus  est  solum,  ejus  est  ad 
coelum  usque  ad  inferos"),  conflicts  with  the  feudal  conceptions 
which  make  mines,  and  even  treasures,  the  property  of  the  king 
or  the  lords.  Already,  under  the  Lower  Empire,  the  State  col- 
lected a  duty  on  the  products  of  mines ;  and  it  was  the  same  in  the 
Prankish  Empire;^  the  Constitution  of  Frederick  I,  1158,  classes 
" argentariae "  among  the  "regalia."  The  king  or  the  lords  took 
for  themselves  the  exclusive  right  ^  of  developing  mines,  or,  at 
least,  granted  the  right  to  develop  them;  this  latter,  however,  did 
not  become  a  fiscal  monopoly.  The  revival  of  Roman  law  weak- 
ened this  doctrine.  If  it  still  finds  partisans  the  latter  rather  de- 
fend it  as  being  based  upon  considerations  of  public  advantage. 
It  is  these  same  considerations,  combined  with  the  idea  of  regard 
for  the  rights  of  the  owner  of  the  ground,  which  lead  to  the  follow- 
ing system,  which  is  a  compromise:  the  owner  of  the  ground  has 
the  right  to  develop  the  mine  upon  condition  of  having  an  author- 
ization from  the  State,  and  under  the  obligation  of  paying  the 
(Roman)  tithe  of  what  it  produces;  if  he  does  not  avail  himself  of 
this  right,  the  State  may  grant  it  to  a  third  party  in  the  same  way, 
and  on  condition  of  an  indemnity  being  paid  by  the  latter  to  the 
owner  of  the  ground.  This  is  approximately  the  solution  which 
was  arrived  at  by  the  Law  of  April  21,  1810.  The  Revolutionary 
law  seemed  entirely  to  abandon  this  system  by  deciding  that 
mines  should  be  at  the  disposal  of  the  nation  (Law  of  July  12-19, 
1791);  but  with  remarkable  inconsistency  it  allows  the  proprietor 
of  the  ground  to  develop  the  mines  to  a  depth  of  one  hundred  feet; 
below  that  he  shall  have  a  preference  over  everybody  else.  The 
Civil  Code,  leaning  still  more  in  this  last  direction,  recognizes,  on 
principle,  the  right  of  the  owner  of  the  ground. 

1  Greuter,  "De  Regali  Metallorum  Jure,"  1867;  Virnich,  "De  Juris  Regal, 
Metal.  Orig.,"  1871;  Bdhlnu,  "De  Regal.  Nov.  et  Salin.  j.,"  1855;  Arndt. 
"Zur  Gesch.  d.  Bergregals,"  1879;  Abigneute,  "II  Sottosuelo,"  188G;  "La 
Propr.  d.  Sottosuolo,"  1888  ("  C.  R."  in  "Z.  S.  S.,  G.  A.,"  1891);  Stobbc,  §  141 
(bibl.);  Fertile,  IV,  424;  Salvioli,  §  221;  Viollet/''Et.  de  St.  Louis,"  see 
Table. 

2  "Ordinatio  Imperii"  of  817,  c.  12.  —  Thus  the  idea  of  the  prerogative 
of  mines  is  previous  to  the  eleventh  century.  CJ.,  however,  Brunncr,  II,  76. 
It  was  often  only  applied  to  gold  or  silver,  the  only  noble  or  precious  metals; 
"Sachsensp.,"  35. 

^  Numerous  examples  of  concessions;  cf.  Stobbe,  op.  cit.  and  loc.  cit. 

283 


§  233]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

§  233.  Treasure  is,  like  a  mine,  one  of  those  hidden  sources  of 
wealth,  the  true  owner  of  which  is  the  lord  or  the  king:  ^  "nobody 
has  wealth  in  gold  unless  it  be  the  king,  and  wealth  in  silver  be- 
longs to  the  barons  and  to  those  who  administer  high  justice  upon 
their  lands"  ("  Etablissements  de  Saint  Louis,"  I,  94).  In  the  face 
of  these  feudal  rules,  the  Roman  tradition  of  partition  between 
the  discoverer  and  the  owner  of  the  ground  is  maintained,  wdth 
variations;  one  quarter  belonged  to  the  discoverer,  the  rest  to 
the  king,  according  to  a  Capitulary;  Loysel  adopts  a  different 
proportion  (no.  280):  "As  to  the  other  treasures  (not  consisting 
of  gold)  hidden  in  olden  times,  one-third  should  belong  to  the 
chief  justice,  one-third  to  the  lord  of  the  land,  and  one-third  to 
him  who  has  found  them." 

§  234.  Estrays,  Waifs,-  movable  property  lost  by  its  owner, 
could  not  easily  be  acquired  by  the  discoverer  during  the  bar- 
barian period;  the  Germanic  law  compelled  a  man  who  found 
something  which  had  been  lost,  under  penalty  of  being  treated  as 
a  thief,  to  tell  this  fact  to  the  judge  or  to  proclaim  it  in  a  loud 
voice  before  the  public  Assembly;  it  was  only  if  the  owner  did  not 
put  in  an  appearance  that  the  discoverer  could  keep  it  for  him- 
self.^ The  Feudal  and  Customary  law  substituted  the  right  of  the 
lord  for  that  of  the  individual.^  Royalty  took  away  from  the 
lords  justices  the  right  of  taking  estrays  on  the  coasts  and  in 

1  Cassiod.,  "Var.,"  IV,  34;  "Capit.,"  I,  215;  cj.  "L.  Rom.  Wis.,"  10,  10; 
"L.  Feud.,"  2,  56;  "Const.  Sic,"  3,  31;  "Ass.  de  Jerus.,"  "C.  d.  B.,"  283; 
"SummaNorm.,"  17;  "T.  A.  C,  Bret.,"  153;  Loysel,  279,  281  (bibl.)  —  C/. 
Landsberg,  op.  ciL,  §  20;  Fertile,^  U8;  Schupfer,  "Allodio,"  39;  Britz,p.Q5S; 
Astruc,  p.  266;  Pasquier,  "Inst.,"  p.  240. 

2  Etymology:  "animaux  effrayes"  (animals  which  have  been  scared), 
"E.xpavidus,"  "Res  erraticje":  "Ass.  de  Jerus.,"  "C.  d.  B.,"  230,  259; 
"Summa  Norm.,"  c.  18;  "T.  A.  C,  Bret.,"  149;  Beaulemps-Beaupre,  "C. 
d'Anjou,"  III,  178;  "Lorris,"  IV;  Britz,  p.  654;  Astruc,  p.  252;  E.  Mayer, 
§  10.  . 

'  "Wis.,"  8,  4,  14;  5,  6;  "Rib.,"  75;  "Fris.  Add.,"  8;  "Roth.,"  343 
(declaration);  "Const.  Sic,"  III,  30;  "Stat,  de  Corse,"  II,  24.  ItaUan 
Statutes:  Fertile,  III,  209;  "Sachsensp.,"  2,  26,  1;  "Schwabensp.,"  347; 
Landsberg,  op.  cit.,  §  20;  Schupfer,  no.  39. 

*  As  to  maritime  estrays,  the  owner  cannot  reclaim  them  (until  the  fifteenth 
century  in  France).  Rights  of  wreckage,  "lagan,"  wreck,  "Strandrecht," 
etc.:  Fonsagrives,  "R.  Marit.,"  1884;  "K.  V.  J.,"  IV,  3,  s.,  p.  78;  Fertile,  §  98, 
138;  Sah'ioli,  §  166;  Waitz,  "V.  G.,"  IV,  135;  Briinneck,  "Recht  auf  Zueig- 
nung  V.  d.  See,"  etc,  1874;  Fardessus,  "Coll.  des  Lois  Marit.,"  I,  315.  Cf. 
L.  Delisle,  "Rec  de  Jug.  de  I'Echiquier,"  no.  450;  Boutaric,  "  Actes  du  Pari.," 
I,  343;  Bigelow,  "Placita  Anglo-Norm.,"  p.  143;  "T.  A.  C,  Norm.,"  67; 
"Summa,"  c  16;  Rymer,  "Foedera,"  I,  12;  Balasque  and  Dul.,  "Et.  Hist.  s. 
Bayonne,"  I,  327.  —  As  to  e.strays  on  land:  Beaumanoir,  58,  4  and  69,  24 
(the  thing  is  not  an  estray  so  long  as  it  is  pursued):  L.  Delisle,  "Rec  de  Jug, 
de  TEchiq.,"  no.  541;  "Reg.  Crim.  de  la  Just,  de  St.  Martin-des-Champs," 
pp.  128,  143;  Fasquier,  "Inst.,"  pp.  171,  261;  Ragueau,  see  "Guesver." 

284 


Topic  l]  DrV'ISIOXS   OF  PROPERTY  [§  235 

large  bodies  of  water  (Ordinances  of  1669  and  1681).  Estrays  on 
land  continued  to  belong  to  the  lord,  at  least  in  a  case  where  the 
owner  did  not  reclaim  them  after  a  certain  delay;  ^  the  Revolution 
abolished  this  seigniorial  right  with  the  other  feudal  rights,  without 
regulating  the  disposal  of  estrays  on  land  (Law of  April  13-30, 1791). 
§  235.  The  Prerogative  of  Forests.^  —  Besides  the  rights  over 
woods,^  this  prerogative  affects  game.'*  Game  and  fish  belong  to 
no  one  in  the  Roman  conception;  the  first  comer  can  take  them 
for  himself,^  According  to  the  feudal  ideas,  on  the  contrary, 
game  and  fish  are  appurtenances  of  the  waters  and  forests,  con- 
sequently, the  property  of  the  lord  or  the  king,  to  whom  the  latter 
belong.®    The  lord  has  a  right,  says  the  old  German  proverb,  over 

1  Publication,  see  details  in  Ferriere,  see  "Epaves"  (bibl.);  Delamare, 
"Tr.  de  Police." 

2  Rendella,  "Tract,  de  Pascuis,  Defensis,  Forestis  et  Aquis,"  1618-1734; 
Berenger,  "Antic.  Storia  Forest,  in  Italia,"  1659. 

3  Post,  "Real  Rights."  —  "Roth.,"  240,  319;  "Liut.,"  82,  116;  Waitz, 
"Deutsche  Hufe,"  p.  36.  —  The  law  of  the  Ripuarians  seems  not  to  make 
any  distinction  (?)  between  the  "silva  communis"  and  the  "silva  regis"  (vol. 
76).  —  The  king  places  a  "silva  in  bannum  et  ex  ea  sicut  Franci  dicunt, 
forestam  (facit)":  Waitz,  "V.  G.,"  IV,  109.  Forests,  preserves,  warrens, 
"bedat"  (Ital.,  "bandite,"  "vizze");  "Capitul.,"  Table,  see  "Foresta";  see 
Du  Cange;  Thevenin,  no.  159;  Brunner,  II,  75.  Dietz  derives  "foresta"  from 
"foris,"  "foras."     See  details  in  Fertile,  IV,  404. 

*  As  to  the  right  of  hunting,  cj.  Medicis,  "  De  Venatione  Pise,"  in  the  "Tract, 
ill.  let.,"  17,  391;  De  Launay,  1681;  Gamare,  1681;  Marchand,  1769;  "IM.," 
1775;  Dufrenoy,  "These,"  1896;  Boidin,  "Dr.  de  Chasse,"  1887;  Faidez, 
"Hist,  du  Dr.  de  Chasse,"  1877;  Steiglitz,  "De  Jure  Venat.,"  1828;  "Encicl. 
Giur.  Ital.,"see"Caccia";  Fertile,  §  138;  Salvioli,  §  220;  "K.  V.  J.,"  IV,  3  s., 
p.  69;  Lux,  "Erwerb.  d.  Eigenth.  an  Jagdb.  Thier.,"  1896;  W.  Sickel,  "Z. 
Gesch.  d.  Bannes,"  1886;  Schiipfer,  "Allodio,"  38;  Briinneck,  "De  Dominio 
Ferarum,"  1863;  post,  "Grundr,"  p.  706.  —  "Beaune,"  p.  81;  Britz, 
p.  650;  Gui  Fape,  q.  218  (bibl.);  Astruc,  p.  224  (hunting  in  Languedoc).  As 
to  offenses  relating  to  forests  cf.  Saleilles,  "N.  R.  H.,"  16,  90;  "Sacliscnsp.," 
61;  E.  Mayer,  §  13  and  14,  §  10. 

B  Cf.  "Roth.,"  309  et  seq.;  "Sachsensp.,"  2,  62,  1;  "Petrus,"  III,  44; 
Pasquier,  "Inst.,"  p.  193;  J.  Faber,  "Inst.,"  fo.  31,  1582. 

"  Already  in  the  barbarian  laws  hunting  and  fishing  are  sometimes  looked 
upon  as  attributes  of  the  right  of  ownership,  in  the  same  way  as  the  gathering 
of  the  issues:  "Sal.,"  33,  98;  "Rib.,"  42,  1;  73;  "Bai.,"  22,  11;  "Alam.,"  102, 
12;  "Roth.,"  309,  320;  "Capit.,"  802,  39;  813,  18; 817, 7;  826,  3,  6;  "Schwabcn- 
Bpiegel,"  236.  Frequent  granting  of  the  "piscatio"  or  of  the  "venatio."  — 
Freedom  to  hunt  and  fish,  which  is  in  accord  with  the  old  Customs  of  the  sys- 
tem of  collective  ownership,  is  already  attacked  as  a  consequence  of  this;  it 
is  found  to  be  in  conflict  with  ownership  on  a  large  scale  and  the  attributes 
which  that  carries  with  it.  Thus  we  arrive  at  the  feudal  period,  —  the  date 
varies  according  to  locality,  —  during  which  fishing  and  hunting  are  included 
within  the  prerogatives;  this  is  the  very  opposite  of  the  old  custom.  The  enu- 
meration of  the  "regalia"  in  Roncaglia  only  includes  fishing;  but  hunting  was 
likened  to  it.  Consequently,  the  freedom  to  hunt  or  to  fish  was  often  granted 
by  the  lord,  but  ordinarily  he  reserved  for  himself  a  portion  of  the  game  or  the 
fish  taken;  the  big  fish  —  for  example,  the  sturgeon  —  belonged  to  him;  he 
had  a  right  to  a  haunch  of  venison:  "T.  A.  C,  Norm.,"  c.  68.  —  Italy:  details 
in  Fertile,  IV,  411. 

285 


§  235]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

the  sound  of  the  bell,  the  bird  in  the  air,  the  fish  in  the  waters.^ 
From  these  rights  there  resulted  as  a  residue  the  right  of  the 
nobles  to  hunt  and  the  Customs  or  laws  on  the  policing  of  hunting 
and  fishing.^ 

§  236.  Prerogative  over  Waters  (and  public  ways).^  —  The 
law  of  the  Prankish,  period  contrasts  "flumina  publica"  with 
"aquae  aquarumque  decursus,"  pretty  nearly  in  the  same  way  as 
it  distinguishes  "  vise  pubhcae"  from  "vise  convicinales "  (the  for- 
mer are  roads  "ubi  rex  vel  dux  egreditur,"  "Heerstrasse,"  road  of 
the  king;  the  latter,  paths  which  serve  the  neighbors  for  their 
daily  intercourse  and  their  work).^  Roads  and  rivers  given  up  to 
the  use  of  everybody  are  outside  of  commerce,  thus  differing  from 
those  which  are  left  to  private  use.  Must  one  go  further  and 
maintain  that  they  belong  to  the  king  or  the  lords?  ^  The  ordi- 
nary doctrine  is  thus  formulated  by  Loysel,  232 :. "  The  highroads 
and  navigable  rivers  belong  to  the  king;  the  little  rivers  and  roads 
belong  to  the  lords  of  the  land,  and  the  brooks  to  individual 
tenants."  ^  From  thence  there  arises  for  the  king  and  the  lords 
the  right  to  islands  which  may  be  formed  in  the  midst  of  rivers 

1  "Jostice,"  p.  268.  As  to  swarms  of  bees,  "Wis.,"  8,  6,  1;  "Roth.,"  319; 
"Bai.,"  22,  8;  "Petrus,"  III,  45.  See  also  the  Romanists,  — for  example,  J. 
Faber,  in  his  "Int.,"  Pasquier,  "Inst.,"  p.  199;  "Et.  de  St.  Louis,"  I,  172; 
see  Ferriere,  Guyot,  Fournel,  "Voisinage,"  ibid.  The  "Schwabenspiegel,"  301, 
allows  of  their  being  pursued  for  three  days;  the  "Sachs.  Weichb.,"  118, 
authorizes  the  first  comer  to  take  possession  of  them  immediately. 

2  As  to  the  latest  stages  of  legislation,  cf.  Pothier,  "Propri6t6,"  etc.;  Ferrihre, 
see  "Chasse,"  etc.  (bibl.).  The  Ordinance  of  1681  regulates  deep-sea  fishing 
and  the  gathering  of  the  products  of  the  sea. 

3  Wodon,  "Dr.  des  Eaux,"  1874;  "Dig.  Ital.,"  see  "Acque";  Sclopis, 
"Acad.  Sc.  Mor.,"  IV,  289;  La  Mantia,  "Demanio  s.  Spiaggie"  (Sicilian  law), 
1889;  Fertile,  IV,  395;  Salvioli,  ^222;  Geffcken,  "Wasserrecht,"  "Z.S.S.,G.  A.," 
1900,  173;  Stobbe,  §  64,  I,  p.  535;  §  144;  Astruc,  "Tutelle,"  p.  191  (waters, 
fishing);  E.  Mayer,  §  9. 

<  "Bai.,"  10,  19;  "Alam.,"  83;  "Roth.,"  151;  "Wis.,"  8,  24  et  seq.  Numer- 
ous Acts  where  there  is  some  question  as  to  lands  with  "exitus  et  reditus," 
etc.  —  Waitz,  "V.G.,"  IV,  114  ("nostra  est  regalisa  qua");  "Const,  de  Fr^d^ric 
I,"  1158  ("L.  Feud.,"  2,  56);  Beaumanoir,  c.  25;  Pasquier,  "Inst.,"  p.  164. 

5  During  the  feudal  period  the  king  and  the  lords  justices  are  contending 
with  one  another  for  the  nagivable  rivers ;  during  the  monarchic  period  the  con- 
flict was  settled  in  favor  of  the  king.  Ordinance  of  1669,  27,  41.  But  the  con- 
flict still  continued  with  regard  to  unna\'igable  rivers  between  the  lord  justice, 
the  lord  of  the  land,  or  even  mere  copyholders  themselves.  Cf.  Boutaric,  I,  73; 
"Et.  de  St.  Louis,"  1, 131;  "Lorris,"  VI;  Loysel,  loc.  cit.  (and  bibl.);  "Beaune," 
pp.  87,  88. 

«  "Wis.,"  8,  4,  29;  "L.  Feud.,"  2,  56:  "flumina  navigabilia."  Dimensions: 
Loysel,  232  et  seq.  (bibl.) ;  Grimm,  552;  Ferrihre,  see  "  Chemin.  For  de  Navarre," 
6,  4,  5;  "Sachsensp.,"  II,  28;  Pothier,  "Propr.,"  no.  264.  Championniere  in 
1846  devoted  a  very  learned  book,  "De  la  Propr.  des  Eaux  Courantes,"  to 
maintain  the  theory  that  the  small  rivers  belong  to  the  riparian  owners;  and 
his  doctrine,  which  is  opposed  to  that  of  the  Court  of  Cassation,  was  sanctioned 
by  the  Law  of  April  8,  1898.  —  Pasquier,  "Inst.,"  pp.  166. 

286 


Topic  l]  DIVISIONS   OF  PROPERTY  [§  23G 

and  seas/  to  alluvium  and  the  bed  of  the  river,  and  the  power  of 
establishing  fisheries,  tolls,  mills  ^  and  harbors.  To  this  feudal 
conception  is  opposed  the  system  which  makes  the  running  waters 
a  thing  owned  in  common,  over  which  the  king  only  exercised 
police  power  in  the  general  interest;  there  would  result  from  this 
for  the  profit  of  individuals,  freedom  of  fishing,  of  navigation,  and 
the  right  of  occupying  islands,  etc, 

1  Landsberg,  op.  cit.,  §21;  Pertz,  "Dipl.,"  II,  461.  Cf.  "Sachsensp.,"  II, 
56,  3;  Stobbe,  II,  162;  Loysel,  239  (bibl.);  Chaisemartin,  p.  172;  Loysel,  236. 
As  to  alluvium,  cf.  Chardon,  1830;  see  "Dig.  Ital."  old,  authors:  Bartole, 
" Tiberiade " ;  Carmagnola,  1793,  etc.;  Pasquier,  "Inst.,"  188. 

2  From  the  Frankish  period  on,  granting  of  the  right  of  erecting  mills: 
Perlile,  IV,  400  (dipl.  of  1159);  "L.  Feud.,"  2,  56;  "T.  A.C.,  Norm.,"  c.  60; 
"T.  A.  C,  Bret.,"  249;  "Et.  de  St.  Louis,"  I,  111;  Beautemps-Beaupre,  "Cout. 
de  I'Anjou,"  I,  134;  Pasquier,  "Inst.,"  pp.  270,  169. 


287 


§  237]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 


Topic  2.    System  of  Ownership  of  Movables 


§237.  "Mobilia  Non  Habent  Se- 
quelam." 

§  238.  The  Barbarian  Period. 

§  239.  (I)  Voluntary  Dispossession. 

§§  240-242.  (II)  Loss  or  Theft. 

§  243.  Feudal  Period.  —  (I)  Volun- 
tary ReUnquishment  of  Pos- 


§  244.  The  Same.  —  (II)  Loss  or  Theft- 

§  245.  Market  Overt. 

§  246.  Reform  in  the  Roman  Direc- 
tion during  the  Fourteenth 
and  Fifteenth  Centuries. 

§  247.  Judicial  Law  of  the  Eight- 
eenth Century. 


§  237.  "Mobilia  Non  Habent  Sequelam."  —  If  our  old  law 
always  recognized  ownership  of  movables/  it  did  not  protect  it, 
according  to  current  opinion,  by  way  of  action;  contrary  to  the 
Roman  rules,  it  started  from  the  principle:  movables  cannot  be 
followed.  Whence  comes  this  peculiarity?  What  is  the  origin  of 
the  sneer  contained  in  Article  2279  of  the  Civil  Code:  "As  far 
as  movables  are  concerned,  possession  equals  title"?  A  delicate 
problem,  the  solution  of  which  is  still  widely  discussed. 

The  point  of  departure  of  our  old  legislation  is  in  the  system  of 
the  protection  of  rights  by  actions  "ex  delicto"  and  the  exclusion 
of  all  other  means.  The  owner  of  the  movable  object  had  in 
primitive  times  only  the  ordinary  resources  for  recovering  it: 
private  vengeance  at  first,  and  then  the  action  "ex  delicto,"  which 
takes  the  place  of  the  latter.  Sometimes  the  movable  was  stolen, 
or  else  it  was  lost,  and  the  finder  kept  it  for  himself  without  taking 
the  precautions  demanded  by  custom,  which  caused  him  to  be 
treated  like  a  thief.  Sometimes  a  person  who  had  received  the 
object,  at  the  same  time  pledging  himself  to  restore  it,  refused  to 
keep  his  promise.  In  both  these  cases  the  owner  was  stripped, 
or,  which  is  the  same  thing,  deprived  of  his  ownership;  the  one 
who  plundered  him,  the  man  who  committed  the  wrong,  was  sub- 
ject to  an  action  "ex  delicto,"  but  he  alone  was  liable;  the  third 

1  As  to  the  acquiring  of  issues,  c/.  post,  "Ownership  of  Land."  Custom  of 
placing  a  mark  ("Hausmarke,"  family  mark)  upon  movable  objects  for  the 
purpose  of  recognizing  them,  in  the  same  waj'  as  one's  effects  are  numbered  in 
a  regiment.  Prohibition  of  "intertiare"  in  the  case  of  objects  which  have  not 
some  "probabile  signum"  in  the  "L.  Rib.,"  79,  2;  cf.  33;  "Sal.,"  9,  2;  27,  19; 
33,  2  (punching  holes  in  the  ears  of  cattle);  "Burg.,"  33,  1;  "Roth.,"  348,  etc. 
Cf.  Geffcken,  "L.  Sal.,"  p.  185  (texts  and  bibl.);  Schroeder,  p.  14;  Homeycr, 
"Hausu.  Hofmarke,"  1870.  —  Rights  of  marking  or  of  reprisal  during  the 
Middle  Ages:  "Bergerac,"  104;  "Toulouse,"  4,9;  "Statuts  de  Marseille," 
1253,  3,  5  and  4,  26.  Letters  of  marque:  Du  Cange,  see  "Marcha";  Ragueau, 
see  "Marque";  Ferribre,  etc.,  ibid. 

288 


Topic   2]  SYSTEM    OF    OWNERSHIP    OF   MOVABLES  [§  239 

party  who  acquired  the  object,  into  whose  hands  it  had  passed 
(purchaser,  donee,  etc.),  escaped  therefrom,  whether  he  acted  in 
good  or  bad  faith:  ^  from  which  it  follows  that  the  owner  could 
not  always  recover  his  property.  Civil  actions,  in  time,  were 
added  to  or  substituted  for  actions  "ex  delicto."  It  was  only 
with  great  difficulty  that  they  were  freed  from  the  penal  element 
which  they  contained:  a  proof  of  the  obscurity  and  inadequacy  of 
the  early  authorities. 

§  238.  The  Barbarian  Period.  —  Though  the  documents  may 
be  very  obscure,  an  examination  of  them  leaves  the  impression 
that  one  is  not  very  far  from  a  primitive  state  of  things;  against 
the  man  who  "malo  ordine  possidet,"  the  owner  of  a  movable  is 
only  given  penal  actions,  or  actions  given  under  analogous  con- 
ditions and  subject  to  the  same  restrictions.  Detailed  contro- 
versies concerning  which  there  is  some  doubt  do  not  seem  to  be  of 
such  a  nature  as  to  shake  this  general  result.  Let  us  draw  a  dis- 
tinction, so  that  we  may  clearly  understand  the  economy  of  the 
Barbarian  law,  between  the  case  where  the  owner  of  the  movable 
has  voluntarily  dispossessed  himself  of  it  and  that  where  the 
movable  has  been  taken  away  from  him  against  his  will,  —  that 
is  to  say,  has  been  lost  or  stolen. 

§  239.  (I)  Voluntary  Dispossession.  —  An  object  was  lent, 
bailed,  or  given  as  a  pledge,  etc.  The  owner  had  an  action  for 
its  restitution  ^  against  the  borrower,  the  depositary,  the  pledge- 
creditor.  He  would  either  obtain  the  thing  itself,  or  its  value 
if  the  thing  had  perished  or  the  "accipiens"  had  disposed  of  it. 
In  this  latter  case,  if  the  "accipiens"  were  insolvent,  the  owner 
would  gain  nothing  by  suing  him.  He  would  need  an  action 
against  the  third  party  who  withheld  the  property.  He  was  not 
given  the  action  "in  rem,"  either  because  the  Barbarian  law  did 
not  recognize  the  reclaiming  of  movables,  or  else,  which  seems  more 
correct,  because  reclaiming  existed,  but  it  was  subordinated  to 
the  same  conditions  as  were  actions  "ex  delicto";^  only  a  few 

1  Unless  he  can  be  accused  of  actual  complicity,  which  admits  of  his  being 
treated  simihxrly  to  the  deHnquent  himself,  which  would  be  a  very  rare  thing. 

2  Action  "de  re  prajstita,"  according  to  the  "L.  Sal.,"  51.  Post,  "Con- 
tracts." This  action  had  first  of  all  a  penal  character,  just  as  the  "actio  de- 
positi"  in  Rome:  according  to  the  Salic  Law  it  would  seem  rather  to  be  a  civil 
action  "ex  contractu."  The  formula,  "quia  res  meas  noluisti  reddere,"  docs 
not  imply  that  the  plaintiff  is  bound  to  prove  his  ownership;  it  is  sufficient 
if  he  show  a  loan.    CJ.  Geffcken,  "L.  Sal.,"  p.  203,  and  authors  cited. 

^  Ileuslcr  considers  as  real  every  action  including  the  formula,  "Malo 
ordine  possides";  and  it  is  an  action  of  this  kind  that  is  mentioned  liere.  It 
may  be  quaUfied  as  a  reclaiming,  but  it  is  a  very  different  kind  of  reclaiming 

289 


§  239]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

laws  which  had  been  affected  by  the  Roman  influence  granted 
the  action  "  in  rem  "  against  third  parties.^  How  are  we  to  explain 
this  pecuHarity  of  the  Barbarian  law?  ^  It  seems  as  though  a 
stronger  means  of  protecting  the  ownership  of  movable  property 
ought  to  have  been  introduced  into  this  legislation.^  Two  prin- 
cipal explanations  have  been  offered. 

1st.  The  action  against  the  bailee,  who  is  responsible  even 
for    accidental    loss   or    injury,   suffices    for  the    owner    of    the 

from  the  Roman  "vindicatio."  One  can  also  say  with  Jobbe-Duval  that  there 
is  no  reclaiming;  the  practical  result  from  the  point  of  view  that  we  take  is 
the  same,  cf.  Fertile,  IV,  255;  Hermaym,  p.  69. 

1  It  is  well  understood  that  he  does  not  have  besides  this  the  personal  action 
"ex  contractu"  or  "ex  delicto,"  for  there  is  no  question  of  any  contract  or 
tort  between  him  and  the  owner.  The  existence  of  the  reclaiming  of  movables 
admitted  by  the  legal  historians  from  the  beginning  of  the  nineteenth  century, 
cf.,  for  example,  Eichhorn,  261,  was  again  recently  upheld  by  Hermann, 
p.  69,  who  criticises  the  majority  of  the  accepted  ideas  and  sees  in  the  contrary 
theory  an  opinion  derived  from  the  doctrine  of  Albrecht  upon  the  "Gewere." 
Principal  arguments :  (A)  Nowhere  do  the  barbarian  texts  formulate  the  rule 
of  the  exclusion  of  the  reclaiming.  (B)  On  the  contrary,  there  are  laws  which 
formally  concede  it  to  the  owner:  "Euric,"  289;  "Wis.,"  5,  48;  "Bai.,"  16,  4; 
"Alam.,"  90;  "Rib.,"  72,  1;  "Burg.,"  83,  1;  "L.  Pap.  Roth.,"  232,  5;  "Ina," 
35,  1.  —  Having  accepted  this  starting  point,  we  must  now  explain  the  de- 
velopment of  the  rule:  "Movables  cannot  be  followed,"  which  figures  in 
later  texts,  and  the  fact  that  it  is  found  in  the  very  legislation  where  the  Ger- 
manic element  occupies  a  preponderating  place.  Hermann  offers  us  ingenious 
conjectures.  One  can  also  see  that  the  maxim  did  not  have  the  power  which 
was  attributed  to  it;  it  would  only  contemplate  certain  restrictions  upon  re- 
claiming, —  for  example,  the  lack  of  the  right  of  distraint  in  matters  relating 
to  mortgages  or  the  practical  impossibility  of  recognizing  movables  that  have 
no  particular  mark  or  sign  about  them.  Jurisprudence,  drawing  its  inspiration 
from  these  precedents,  and  wishing  to  give  a  more  complete  satisfaction  to 
the  growing  interests  of  commerce,  must  have  suppressed  this  reclaiming  by  the 
owner  and  thus  arrived  at  Art.  2279  of  the  Civil  Code. 

2  On  the  other  hand,  the  reclaiming  of  movables  appears  in  many  of  the 
old  legislations,  for  example,  "L.  de  Manu,"  8,  201:  Kabyle  Customs  accord- 
ing to  Hanoteau  and  Letourneux,  "La  Kabylie"  II,  223. 

'  The  partisans  of  this  system  reply  to  the  arguments  of  the  preceding  view 
by  saying  that  the  te.xts  which  it  depends  upon  have  been  subjected  to  the 
Roman  influence,  and  that  if  a  refusal  to  allow  a  reclaiming  is  not  expressly 
formulated  in  the  documents  of  the  barbarian  period,  this  is  to  be  accounted 
for  by  reason  of  the  general  motives  given  in  the  text  {cf.  silence  of  the  Eng- 
lish texts  of  the  feudal  period).  —  As  supporting  their  thesis  they  give  the  fol- 
lowing special  reasons:  (o)  The  old  procedure  did  not  include  many  sorts  of 
action;  had  it  admitted  of  the  reclaiming  of  movables,  the  text  would  have 
systematized  it  in  its  application  against  third  parties;  their  silence  upon  this 
point  is  decisive;  cf.  action  of  theft,  (h)  The  exclusion  of  this  reclaiming  in 
the  system  of  the  barbarian  laws,  where  the  civil  and  criminal  action  are  con- 
fused, and  where  there  is  only  room  for  complaints  ("clamores"),  is  readily 
understood,  (c)  The  Customary  maxim,  "Movables  have  no  consequences," 
is  not  set  forth  in  the  later  sources  of  the  law  as  being  an  innovation,  and  the 
economic  condition  of  the  twelfth  century  would  not  be  sufficient  to  account 
for  an  innovation  such  as  the  exclusion  of  this  reclaiming,  (d)  Finally,  they  cite 
the  laws  of  Hoel  le  Bon,  "Code  Ven6dotien,"  n.  32  {cf.  Hermann,  p.  84).  — 
These  reasons,  although  in  our  opinion  well  founded,  leave  the  controversy 
still  open. 

290 


Topic   2]  SYSTEM   OF   OWNERSHIP   OF   MOVABLES  [§  239 

movable:  "where  you  have  placed  your  confidence  you  must  seek 
it,"  says  an  old  German  gibe;  ^  he  has  only  himself  to  blame  for 
having  misplaced  it;  he  could  not  be  unaware  of  the  fact  that 
he  was  laying  himself  open  to  many  risks;  ^  and  third  parties 
who  dealt  with  the  possessor,  who  saw  him  with  the  object  in 
undisturbed  possession,  perhaps  for  a  long  time,  and  whom  not 
one  notorious  fact,  like  loss  or  theft,  had  put  on  their  guard, 
could  not  be  bound  to  make  inquiry  as  to  his  title.  2d.  Accord- 
ing to  another  opinion,  the  reason  for  the  absence  of  the  action  is 
accounted  for  by  the  characteristics  of  the  old  procedure;  the  old 
Custom  provides  for  formal  procedure  based  upon  solemn  acts, 
such  as  the  giving  of  the  "festuca,"  or  upon  material  facts,  such 
as  the  delivery  of  an  object;  outside  of  offenses  and  acts  of  this 
kind,  no  procedure  is  thought  of;  now,  here,  the  offense  cannot  be 
blamed  on  the  third  party  who  withholds  the  object;  between 
him  and  the  owner  there  has  been  neither  a  material  act  nor  a 
solemnity  upon  which  it  would  be  possible  to  base  an  action.  In 
our  opinion,  the  reason  relating  to  procedure  and  the  practical 
reason  gave  each  other  mutual  support.'"' 

^  Chaisemartin,  "Proverbes  du  Dr.  Germ.,"  p.  195;  Glanville,  10,  13,  2; 
Hermann,  p.  129. 

2  The  "accipiens"  may  destroy  the  object,  cause  it  to  disappear,  and  refuse 
to  do  anything  in  case  it  is  stolen  or  lost.  It  is  to  the  advantage  of  the  owner 
to  allow  the  "  accipiens  "  to  bring  the  uncertain  action  of  theft  against  the  thief. 

^  Other  explanations,  cf.  Jobbe-Duval,  p.  85.  —  1st.  "Mobilium  vilis  pos- 
sessio":  Renaud,  "R.  de  Leg.,"  1845,  371.  —  2d.  Importance  of  pos.session  in 
the  Germanic  law;  the  owner  who  does  not  have  possession  is  absolutely  de- 
prived of  the  thing  (excepting  it  be  stolen).  Cf.  Albrecht,  "Gewere,"  p.  91. 
It  ought  to  be  the  same  with  regard  to  immovables.  —  3d.  The  owner  of  the 
movable  has  acted  foolishly,  whereas  the  person  who  acquii'ed  the  movable 
in  good  faith  is  in  no  way  to  blame:  Waller,  "D.  Rechtsg.,"  n.  705.  —  This  is 
all  very  well  in  our  time,  but  the  old  law  reasons  in  rather  a  different  manner; 
it  says  to  the  owner:  "  Where  you  have  placed  your  confidence.  .  .  ."  It  does 
not  punish  the  careless  owner  who  has  not  securely  tied  up  his  horse  by  for- 
bidding him  to  reclaim  it  from  a  person  who  purchases  it  in  good  faith.  When 
the  object  which  has  been  lent  has  been  stolen  from  the  borrower  and,  conse- 
quently, the  owner  is  in  no  way  to  blame,  he  has  no  action  against  the  thief.  — 
4th.  The  borrower  has  a  right  to  alienate  the  object  received  in  the  same  way 
as  the  fiduciary  acquirer  at  Rome:  Gerber,  "D.  Privatr.,"  §  102.  This  theory 
is  confused  with  the  one  set  forth  in  the  text  in  the  first  place.  —  5th.  There  is 
a  presumption  of  ownership  in  the  third  party  who  acquires  the  movable 
when  the  movable  has  neither  been  stolen  nor  lost:  Bar,  "Bewcisurth.,"  150. 
No  doubt,  but  why  should  the  true  owner  not  be  allowed  to  overthrow  this 
presumption?  —  6th.  Executory  character  of  the  Germanic  i)rocedure  {cf. 
"pignoria  capio"  in  Roman  law);  the  proceeding  is  more  in  the  nature  of  a 
distraint  than  of  a  contest  over  conflicting  interests  ("  Betreibungsverfahren  " 
in  the  Swiss  Cantons).  Now,  there  is  no  executory  right  as  against  the  third 
party  who  acquires,  and  thenceforth  no  distraint  is  possible  (Ilcuslcr,  op.  ctl.). 
—  Johbe-Duval,  p.  89,  objects  that  in  the  sixteenth  century  reclaiming  was 
admitted  in  France,  and  that,  nevertheless,  very  often  the  proceeding  began 
by  a  distraint.     It  is  none  the  less  true  that  there  is  a  close  connection  between 

291 


§  240]  OWNERSHIP   .\ND    REAL    RIGHTS  [Chap.  II 

§  240.  (II)  Loss  or  Theft.^  —  Let  us  first  of  all  observe  that 
the  finder  is  treated  like  the  thief  when  he  does  not  fulfill  the  cus- 
tomary formalities  intended  to  notify  third  parties  of  the  fact  of 
the  discovery;  so  that  what  we  shall  say  with  respect  to  theft  is 
applicable  to  loss.^  According  to  the  Frankish  law,  the  victim  of 
a  theft  starts  a  search  for  the  object  which  has  been  taken  away 
from  him;  ^  he  summons  his  neighbors  and  calls  upon  them  to 
help  him,  places  himself  at  the  head  of  a  group  of  them  ("trus- 
tis")  ^  and  follows  the  trail  of  the  animal  or  of  the  object,  which  has 
been  stolen  ("  vestigivunminare  ").'°  If  the  tracks  lead  to  a  house, 
the  man  who  has  been  robbed  carries  out  a  search  of  the  house 
("scrutinium")  under  conditions  which  recall  the  "perquisitio 
lance  licioque"  of  the  Roman  law.^  Once  the  object  has  been 
found  as  a  consequence  of  this  proceeding,  which  constitutes  a 
remarkable  case  of  "Selbsthiilfe,"  the  "vestigium  minans"  shows 
that  this  object  bears  his  mark,  follows  this  mark,  and  declares 
that  the  thing  belongs  to  him.  Only  if  the  search  has  taken  place 
at  once  and  without  any  interruption,  and  the  object  has  been 
found  within  a  short  period  (three  nights),  shall  the  ofEense  be  re- 
garded as  flagrant;  ^  the  man  robbed  shall  be  authorized  to  take 

this  opinion  and  the  one  which  is  set  forth  in  the  text:  if  the  old  procedure 
starts  out  with  a  distraint,  this  is  rather  due  to  the  reasons  set  forth  in  the  text. 

^  See  "Obhgations,"  "Offenses."  See,  especially,  Brunner,  "D.  Rechts- 
gesch.,"  II,  §  139;  "Antiq.  Glos.sar.,"  see  "Diebstahl." 

2  "Rib.,"  75,  80,  "Roth.,"  343;  "Wis.,"  8,  4,14;  5,6;  "Bai.,"  2, 12;  "Alam.," 
84;  "L.  Guill.  le  Conq.,"  I,  6  (Schmid,  p.  324);  "Magd.  Fr.,"  1, 13, 1.— Hermann, 
p.  158  ("per  tres  marcas");  Chaisemartin,  p.  492:  to  hide  something  which 
one  has  found  is  the  same  thing  as  to  steal.  —  Cf.  "Estrays,"  '  'Petrus,"  3,  4. 

*  Assuming  that  the  thief  is  not  known;  otherwise,  it  would  only  be  neces- 
sary to  begin  the  action  of  theft  against  him. 

'  "Sal.,"  66;  Hessels,  "Gragas,"  ed.  Schlegel,  2,  193;  Cf.  "Dec.  Chlot.," 
§  16:  official  search  by  the  chief  of  the  hundred  at  the  head  of  a  "trustis," 
probably  in  a  case  where  it  was  necessary  to  go  outside  of  the  hundred;  re- 
sponsibility for  the  theft  upon  the  hundred  where  the  traces  led  if  the  object 
was  not  found.  Cf.,  "Burg.,"  19,  2  ("vegius,"  "veins"  =  "index  vise"); 
"M.G.  H.,  LL.,"3,  467;  "Wis.,"  7,  4,  2;  "Liut.,"  81. 

5  "Sal.,"  37;  "Rib.,"  47;  "Burg.,"  16;  "Roth.,"  208.  Cf.  Gains,  III.  193; 
Virgil,  "^En.,"  VIII,  209;  Hermann,  p.  32;  Brunner,  II,  496;  London,  p.  363. 
The  trail  may  be  followed  in  Greece  among  the  Scandinavians,  etc.:  Grimm, 
"R.  A.,"  639;  Dareste,  "Etudes,"  p.  299;  Post,  "Ethnol.  Jurisp.,"  II,  418. 

^  In  the  old  times  the  "vestigium  minans"  was  authorized  to  enter  the 
house  by  force,  but  he  was  held  liable  to  pay  a  fine  if  the  object  was  not  found 
therein:  "Alam.,"  5,  3;  "Bai.,"  11,  2;  "D.  Tassil.,"  4,  13;  "Gout,  de  Jutland," 
2,  97;  "Gout,  du  roi  Ghristophe,"  13,  2.  According  to  another  system,  violence 
was  forbidden,  but  whoever  offered  opposition  to  the  search  was  treated  like 
a  thief:  "Rib.,"  47;  "Burg.,"  16,  103;  Brunner,  II,  497.  Cf.  action  "furti 
prohibiti."  During  the  feudal  period,  wager  before  search.  —  Penalties 
against  whoever  hides  the  stolen  object  in  another  man's  house  ("firinbero"): 
"Sal,"  16,  1;  17,  1;  34,  4;  "Rib.,"  45;  Gains,  III,  187  ("a.  furti  oblati"). 

^  The  difference  between  flagrant  theft  and  ordinary  theft  is  readily  ex- 

292 


Topic   2]  SYSTEM    OF   OWNERSHIP   OF   MOVABLES  [§  241 

back  the  object  from  the  hands  of  the  one  who  withholds  it/  and 
this  shall  close  the  proceedings. 

§  241.  The  Same.  —  If  the  object  is  only  found  after  the  ex- 
piration of  the  legal  period. of  three  nights,  the  theft  is  no  longer 
flagrant  and  the  proceeding  is  not  so  simple.  To  the  extrajudicial 
phase  there  is  added  ^  a  judicial  phase.  The  seizure  of  the  object, 
the  "Anefang"  of  the  "  Sachsenspiegel,"  ^  which  closes  the  extra- 
judicial phase,  becomes  the  point  of  departure.  These  forms  re- 
call those  of  the  "legis  actio  per  sacramentum"  (sham  combat), 
with  this  difference,  that  they  take  place  outside  of  the  tribunal. 
The  petitioner  takes  hold  of  the  object  with  his  left  hand,  and, 
holding  a  weapon  in  his  right,  swears  that  he  is  placing  his  hand 
upon  a  thing  which  is  his  (that  is  to  say,  on  a  thing  which  has 
been  taken  away  from  him) ;  ^  his  adversary,  in  the  same  posi- 
tion, swears  on  his  side  that  the  thing  belongs  to  him,  or  that  he 
vouches  a  warrantor,  "quod  ad  cam  manum  trahat  qui  ei  ipsam 
rem  dedit."  ^    It  is  only  in  this  way  that  the  man  detaining  the 

plained  by  the  idea  of  vengeance:  the  anger  of  the  victim  is  more  intense  when 
he  takes  the  guilty  man  in  the  very  act  (cf.  Roman  law:  "furtum  manifestum" 
and  "nee  manifestum")-  The  same  observation  applies  to  the  extrajudicial 
character  of  the  procedure:  Jobbe-Duval,  p.  76;  "Saclisensp.,"  II,  35.  —  "Li- 
gratio"  of  the  tliief  taken  in  the  act:  "Rib.,"  41,  73,  77;  "Sal.,"  32;  "Burg.,"  32. 
More  severe  penalties:  "Withr.,"  2.5;  "Atheist.,"  4,  3,  6.  —  Is  the  man  who 
withholds  property  treated  like  a  thief  for  this  reason  alone?  Controversy: 
Yes,  according  to  Jobbe-Duval.  To  the  contrary,  see  Brunner;  —  Glaber,  3,  6; 
"Cout.  de  Jutland,"  2,  106  (he  is  not  allowed  to  defend  himself);  "Rib.,"  41, 
2;  "Pactus  Childeb.,"  c.  10. 

^  "Sal.,"  37:  "Res  suas  per  tercia  manu  agramire  debet."  Various  in- 
terpretations: He  takes  back  his  thing,  but  in  order  to  do  this  he  should  swear 
with  three  fellow  oath-takers  that  it  belongs  to  him,  —  cf.  "Et.  de  St.  Louis," 
II,  26;  "_N.  R.  H.,"  1878,  220  (Jobbe-Duval,  Heusler);  he  must  promise  to- 
gether with  a  surety  that  he  will  take  upon  himself  the  action  for  the  third 
party  who  has  acquired  (Brunner).  "  Adramire"  means  ordinarily  to  promise 
by  "fides  facta":  "Rib.,"  33,  4;  Roziere,  no.  479;  Thevenin,  "N.R.B..,"  IS80, 
91;  1879,333;  "Bord.,"  147;  see  DuCange,Geffcken,  p.  154  (hihl);  Schroeder, 
p.  373  (texts);  Hermann,  p.  113. 

2  Cf.  London,  p.  92.  The  connection  between  the  "vestigii  minatio"  and 
the  "Anefang"  is  disputed. 

'  "Anfangen"  equals  to  distrain:  Hermann,  p.  86.  —  Other  applications 
of  this  procedure:  Behrend,  "Anefang  u.  P^rhcngewere,"  1885.  —  For  Sohm 
the  "Anefang"  is  a  formal  act.  Criticism  of  this  idea  in  London,  p.  34.  —  It 
takes  place  in  court  in  the  thirteenth  century  (ib.,  p.  52)  in  Germany. 

*  The  depositary,  etc.,  could  not  swear  "quod  in  propriam  rem"  ("Rib.," 
33,  1)  if  this  was  an  affirmation  of  the  right  of  ownership:  Stobbe,  II,  616; 
"Aist.,"  5;  Forel,  "Chartes  Communalcs  du  Pays  de  Vaud,"  1872,  p.  98,  §  15. 

^  Necessity  for  immediate  reply  under  penalty  of  seeing  the  plaintiff  take 
possession  of  the  thing.  Argument  to  the  contrary:  "Sal.,"  37;  "Roth.," 
232;  "Burg.,"  83,  1.  —  It  is  possible  that  the  withholder  may  reply,  "quod 
fordronem  suum  ncsciat"  ("Rib.,"  33,  4;  "Sal.,"  47,  2;  "Bai.,"  9,  7;  "Lib. 
Pa]).  Roth.,"  232)  and  swear  it  before  the  tribunal;  he  is  not  punished  as  a 
tliief,  but  is  limited  to  restoring  the  thing:  Ina,  25;  London,  p.  316;  Beau- 
manoir,  34,  3. 

293 


§  241]  OWNERSHIP   AND    REAL    RIGHTS  [Chap.  II 

object  can  clear  himself  of  the  accusation  of  impHed  theft,  —  by 
means  of  this  formaUty  ("exuere  se  de  latrocinio,"  says  the  Salic 
Law).  In  the  first  case  the  action  is  decided  pursuant  to  the 
usual  rules;  in  the  second,  it  becomes  compHcated  by  reason 
of  the  recourse  to  warranty.  It  is  always  necessary  that  the  par- 
ties ^  should  appear  in  court  with  the  object  in  htigation.^  The 
defendant  can  plead  that  he  came  into  possession  by  some  law- 
ful title;  ^  by  this  means  he  overthrows  the  accusation.  As- 
suming a  case  where  the  thing  has  been  transferred  to  him,  he 
finds  himself  under  the  necessity  of  naming  his  transferor,  and 
of  promising  that  the  latter  will  appear  in  court  ("intertiatio").^ 
The  recourse  to  warranty  is  thus  followed  from  one  warrantor 
to  another  until  the  first  warrantor  is  found. ^  In  the  mean- 
while the  thing  stays  temporarily  in  the  hands  of  the  man 
who  actually  withholds  it;  it  has  been  thought  that  the  thing 
was  confided  to  the  sequestrator,  which  seems  to  us  more  reason- 
able, and  which  was  done  later  on;  but  during  the  Prankish  period 
the  very  heavy  responsibility  which  weighed  upon  the  holder 
appeared  sufficient  to  assure  the  bringing  into  court  of  the  object 
in  litigation.^  Before  the  tribunal  this  object  passed  from  the 
hands  of  the  holder  into  those  of  the  warrantor,  and  the  latter 
took   the   defense   upon  himself;    the  holder  disappeared  from 

'  Engagement  entered  into  by  them:  "Lib.,  Pap.,  Roth.,"  231;  "Burg.," 
83.  Delays  varying  according  as  the  warrantor  is  more  or  less  distant: 
"Sal.,"47:  40or80days:  "Rib.,"33;  "^thelr.,"  2,  8; //toi/i.,  7, 16;  "Roth.," 
231.  —  Results  of  default:  being  put  "extra  sermonem  regis,"  distraint 
upon  the  goods  of  the  defaulter.     Cf.  Beaumanoir,  34,  3. 

^  As  to  the  object  in  court,  cj.  "Alam.,"  87  (clod  of  earth  under  seal): 
"Bai.,"  12,  3  and  16,  17;  Houard,  "Cout.  Anglo-Norm.,"  Ill,  645.  Death 
of  a  stolen  slave:  who  is  buried  at  the  crossroads,  his  feet  tied  with  a  twisted 
branch  "retorta,"  which  comes  up  out  of  the  ground  and  which  should 
"de  manu  in  manu  ambulare"  until  the  thief  is  found:  "Rib.,"  72. 
—  A  slave  who  has  run  away :  unless  he  is  represented  within  the  legal 
delay  the  guilt  of  the  accused  is  looked  upon  as  proved;  but  the  Capitu- 
lary of  803,  13,  allows  him  to  justify  himself  by  oath.  —  Cf.  "Alam.,"  87; 
"Bai.,"  12,  3  and  16, 17;  "Roth.,"  313.  —  On  the  " quadruvium "  cf.  Hermann, 
p.  139. 

3  For  example,  if  it  is  a  case  of  an  animal  born  in  his  stable:  "Sal.,"  99; 
Hessels;  "Bai.,"  16,  11;  "L.  Pap.  Roth.,"  232;  "L.  de  Guill.  le  Conq.,"  1,  21; 
"iEthelst.,"  2,  9;  "Schwabensp.,"  II,  93;  "Cap.  Childeb.,"  c.  1.  Cf.  Hermann, 
p.  53;  London,  pp.  162,  342. 

*  "Sal.,"  47;  ib.,  74. —  "Cap.."  ed.  Bar.,  II,  440;  Du  Cange,  see  "Inter- 
tiare";  Hermann,  p.  99  and  VII;  bibl.  in  Geffcken,  "L.  Sal."  "Orleans,  A.  C," 
379,  380;  "N.  C,"  444,  454;  "Amiens,"  thirteenth  century,  76;  "Jostice," 
p.  309;  Jobbe-Duval,  p.  42. 

^  "Rib.,"  72,  1;  "Bai.,"  16,  11.  No  hmit  to  these  successive  recourses, 
at  least  in  the  beginning:  Brunner,  "D.  R.  G.,"  II,  502;  Law  of  Otto  I,  in 
967. 

«  Cf.  "Rib.,"  74. 

294 


Topic   2]  SYSTEIVI    OF   OWNERSHIP   OF   MOVABLES  [§  242' 

the  proceedings.^  If  the  warrantor  refused  to  accept  the  object, 
this  gave  rise  to  an  action  between  himself  and  the  holder, 
which  was  settled  by  means  of  the  duel;  the  holder,  convicted 
of  having  had  recourse  to  warranty  without  reason,  was  punished 
like  a  thief  .^ 

§  242.  The  Same.  —  The  action  the  procedure  of  which  we 
have  just  outlined,  the  only  one  which  springs  out  of  theft,  is  a 
penal  action,  whether  it  be  brought  against  the  thief  himself 
("actio  furti,"  properly  so  called)  or  against  a  third  party  who 
withholds  the  object  (a  reclaiming  of  the  movable).^  The 
only  one  authorized  to  bring  this  action  is  the  man  robbed, 
whether  he  be  owner  or  not;  the  lender,  the  pledgor,  etc.,  have 
the  action,  for  it  is  sufficient  that  the  thing  which  they  have 
lawfully  in  their  possession  should  be  taken  away  from  them  to 
allow  them  to  take  vengeance  for  the  injury  received,  or  to  per- 
mit of  their  bringing  action,  which  is  a  milder  form  of  vengeance;  ^ 
in  such  a  case,  the  action  of  theft  is  not  maintainable  by  the 
owner  of  the  property.^  The  man  who  has  been  robbed  is  not 
able  to  sue  the  thief  and  the  third  party  who  withholds  the  ob- 
ject, at  one  and  the  same  time.  If  he  fail  in  his  action,  he  will 
suffer  the  penalty  of  theft. ^  Retaliation  is  the  compensation  for  the 
risk  which  the  defendant  runs  in  the  dangerous  procedure  which 
is  directed  against  him.  In  places  where  the  law  became  milder 
the  penalties  were  less.^     The   defendant  who  is   found  guilty 

1  Post:  "Doctrine  of  Warranty,"  "Sale."  See  Hermann,  p.  64;  "Lib. 
Pap.  Roth.,"  231. 

2  "Rib.,"  33,  3;  "Cap.,"  803,  "ad.  1.  Rib.,"  7;  Loersch  and  Schr.,  no.  93; 
"Ass.  de  Jerus.,"  "C.  des  B.,"  256;  Loysel,  699. 

^  Very  diverse  opinions  as  to  the  nature  of  the  "  Anef angsklage " ;  cf. 
analysis  in  London,^  op.  cit.,  introduction.  —  The  penal  character  of  the  action 
results  from  its  being  given  to  a  person  who  is  not  the  owner,  from  the  fact 
that  if  the  plaintiff  fails  in  his  action  he  incurs  the  penalty,  and  also  from  the 
fact  that  the  person  who  has  been  robbed  cannot  proceed  against  the  thief  and 
against  the  third  party  who  withholds  the  object  at  the  same  time.  —  The 
commentaries  upon  the  Lombard  laws  bear  witness  that  this  action  was  given 
up  in  order  to  proceed  according  to  the  Roman  law. 

*  A  short  delay  (perhaps  a  year  and  a  day),  because  he  who  allows  the 
customary  time  to  go  by  is  looked  upon  as  ha\ang  given  up  all  idea  of  ven- 
geance himself:  "  L.  de  Guill.  le  Conq.,"  1,  3  and  6;  1,  21;  Hermann,  VI,  105, 
109;  "Dec.  Childeb.,"  3  (10  years). 

^  ^\Tlich  proves  that  the  action  is  not  accorded  to  the  depositary,  etc., 
simply  because  he  is  better  informed  and  in  a  better  position  to  act  than  the 
owner  is;  but  this  is  not  always  true.  Fertile,  IV,  257,  maintains,  it  is  true, 
that  the  owner  would  have  the  action,  for  example,  if  the  depositary  were  in- 
solvent. —  "Rib.,"  72;  "Cap.,"  803,  c.  12;  "Liut.,"  131;  "Wis.,"  5,  5,  3; 
"Bai.,"  15;  "Schwabensp.,"  230;  Schreuer,  " Verbrechenskonkurr.,"  p.  60; 
Schroder,  p.  348. 

«  "Bai.,"  9,  18;  "Roth.,"  242;  ".Ethelbr.,"  2,  9. 

^  "Burg.,"  19,  2;  83,  2;  "Rib.,"  47,  3;  "Sal."  (Hesscis);  "Dec.  Childeb.," 

295 


§  242]  OWNERSHIP   AND    REAL    RIGHTS  [Chap.  II 

pays  his  adversary  the  composition  for  theft,  restores  to  him  the 
object  stolen,  or  if  this  be  no  longer  in  existence,  its  value  and, 
furthermore,  gives  him  a  sum  of  money  to  indemnify  him  for  the 
time  he  has  delayed  in  making  the  restitution/  These  three 
items  are  designated  in  the  law  of  the  Ripuarians  by  the  words: 
"texaga,"  "capitale"  and  "dilatura."^ 

§  243.  Feudal  Period  (tenth  to  fourteenth  century).  —  (I)  Vol- 
untary Relinquishment  of  Possession.  —  The  Customary  law  seems 
to  be  divided  between  two  opposite  tendencies,  —  one,  which  is 
Roman,  allowing  the  owner  to  reclaim;  ^  the  other,  which  is  Ger- 
manic, refusing  to  allow  him  to  do  so.  In  these  same  Books  of 
Customs,  solutions  which  contradict  one  another  are  met  with. 
Moreover,  it  is  probable  that  the  old  law  still  predominates;  one 
can  see  that,  as  a  general  thing,  the  owner  is  reduced  to  a  personal 
action  against  the  depositary,  the  pledgee,  etc.,  to  whom  he  has 
entrusted  his  movable;  ^  so  much  the  worse  for  him  if  he  has  mis- 

c.  3;  "Sachsensp.,"  I,  53;  II,  35;  "Schwabensp.,"  317.  As  to  the  Hindu 
and  Scandinavian  law,  cf.  Jobbe-Duval,  p.  69. 

1  "Rib.,"  17;  33.  "Sal.,"  2,  1  etseq.  — Is  the  fine  of  the  "Anefang"  of  the 
Customs  of  the  Middle  Ages  already  added  to  those  penalties  of  the  bar- 
barian period?  Cf.  "Alam.,"  2,  88,  90;  "Dec.  Tassil.,"  4,  13;  "Wis.,"  5,  4, 
8.  —  As  an  exception,  there  is  a  right  for  the  wlthholder  to  obtain  the  price  or 
a  portion  of  the  price:  "Bai.,"  9,  7;  "Wis.,"  7,  2,  8;  Hlothar,  16;  "Burg.," 
107,  8. 

2  Cf.  "L.  Ft.  Cham.,"  25,  27;  Jobbe-Duval,  p.  68.  —  As  to  the  "dilatura" 
or  "wirdira"  controversy,  cf.  Tamassia,  "Arch.  Giur.,"  1897,  p.  345;  Vander- 
kindere,  "Acad.  Belg.,"  41;  Grimm,  "R.  A.,"  655;  Brunner,  II,  624;  bibl.  in 
Geffcken,  "L.  Sal.,"  p.  109;  Hermann,  p.  28. 

'  Case  of  the  reclaiming  of  a  thing  entrusted  to  another,  with  or  without 
indemnifying  the  third  party  who  has  acquired  it:  "  Jost.,"  8,  5,  2;  19,  23,  3; 
"Ass.  de  Jerus.,"  "C.  des  B.,"  91,  99;  "Amiens,  2  Cout.,"  99  et  seq.;  Roye, 
37;  "Roisin,"  no.  Ill;  "Bourges,  T.  A.  C,"  54;  Varin,  "Arch.  L6g.de Reims," 
I,  38;  "F.  de  Beam,"  p.  53,  170;  Jobbe-Duval,  p.  176;  Fertile,  IV,  256.  Cf. 
as  to  the  German  law:  Stobbe,  II,  621;  Beaumanoir  (31,  16;  54,  3;  32,  15; 
6,  3)  allows  the  owner  the  right  of  reclaiming  (Roman  influence),  excepting  as 
against  the  person  who  has  acquired  the  thing  in  good  faith  and  who  "bought 
it  in  the  open  market  to  the  knowledge  of  all  good  people."  If  it  is  a  question 
of  a  movable  which  has  been  stolen,  the  person  buying  it  under  these  same 
conditions  shall  have  a  right  to  be  paid  back  the  purchase  price  (25,  22).  Cf. 
34,  47;  Boutaric,  I,  43.  Beaumanoir,  32,  15,  also  admits  of  the  complaint  of 
novel  disseisin  for  the  benefit  of  the  man  who,  having  had  a  movable  for  less 
than  a  j^ear  and  a  day,  loses  possession  of  it.  Cf.  Bourcart,  "These,"  p.  191. 
See  also  theory  of  seisin:  Beaumanoir,  37,  3  (good  faith);  Glanville,  12,  12. — 
"Petrus,"  2,  15;  3,  9. 

*  (A)  Texts  which  Formulate  the  Customary  Kule,  according  to  which  re- 
claiming is  not  admitted:  P.  de  Fontaines,  12,  3;  "T.  A.  C,  Bourges"  {B.  de 
Richeb.,  Ill,  880),  Art.  55.  Neither  the  Roman  reclaiming  nor  the  mortgage 
action  can  take  place  in  the  lay  court:  A.  Favre,  "Cod.  Fabr.,"  VI,  27,  11; 
Terrien,  on  "Norm.,"  p.  258;  Voet,  "Ad  Pand.,"  6,  1,  12;  Boerius,  "Consuet. 
Bituric,"  fo.  35.  Cf.  Bessian  de  Pressac,  on  "Auvergne,"  17,  1:  the  usucap- 
tion  of  movables  is  abolished;  acquirers  are  protected  by  the  general  Custom 
of  the  kingdom:  Movables  cannot  be  followed.  —  Although  these  last  authors 
are  of  recent  date,  they  give  the  rule  as  being  an  old  one:  Denyssen,  "Diss. 

296 


Topic  2]  SYSTEM   OF   OWNERSHIP   OF  MOVABLES  [§  244 

placed  his  confidence,  or  if  the  "accipiens"  abuses  this  confidence 
in  order  to  transmit  the  property  to  a  third  person;  ^  against  the 
latter  the  owner  has  no  remedy,  even  if  his  own  debtor  is  insol- 
vent; the  energetic  measures  to  which  he  can  have  recourse  (phys- 
ical compulsion,  private  seizure)  cause  this  insolvency  to  be  a 
rather  rare  occurrence.^ 

§  244.  The  Same.  —  (II)  Loss  or  Theft.  —  (a)  Loss.  The  feudal 
laws  modified  the  old  rules  in  this  respect.  Movable  objects  which 
were  lost  belonged  to  the  lord,  excepting  for  the  duty  he  had  of 
restoring  them  to  their  owner  if  the  latter  claimed  them  within  the 
year  and  a  day;  such  a  reclaiming  could  have  no  penal  character 
if  the  lost  property  was  in  the  hands  of  the  lord;  nor  did  it  have 
any  more  of  a  penal  character  when,  the  right  of  the  lord  having 
been  obliterated,  it  was  made  against  a  third  party  (the  Latin 
East,  Normandy).^    Between  this  personal  action,  which  may  be 

Inaug.,"  1796,  Raynaud,  "These,"  1873,  p.  113,  think  that  this  maxim  is 
only  a  short  form  of  the  rule  of  the  sixteenth  century,  "Movables  cannot 
be  followed  by  a  mortgage."  Des/nares,  165;  "Cout.  Notoires  du  Chat.," 
23;  "Cout.  d'Anjou  de  1411,"  no.  288.  To  which  we  must  reply  by  the 
preceding  and  following  texts,  which  are  general  and  do  not  merely  con- 
template mortgages.  —  (B)  Texts  which  Apply  the  Rule:  "Jostice,"  19,  53,  3 
(pledging  some  one  else's  property,  whereas,  if  one  pledges  a  thing  stolen  and 
it  be  known,  the  pledge  is  worthless):  "Ass.  de  Jerus.,"  "C.  des  I3ourg.,"  40, 
84  (distraint  upon  the  thing  lent  to  the  debtor  by  a  third  party);  "Roisin," 
p.  90,  n.  Ill  (reclaiming  allowed  as  an  exception).  The  Customs  of  the  South 
allow  the  purchaser  of  a  thing  which  has  been  stolen  a  right  to  compensation 
if  the  purchase  has  taken  place  in  a  market;  "a  fortiori,"  should  this  be  so 
in  the  case  of  a  thing  which  has  not  been  stolen,  yet  at  the  same  time  this  case 
is  not  provided  for,  because  the  true  owner  has  no  right  to  take  the  thing  back: 
"Toulouse,"  95,  etc.;  "N.  R.H.,"  1880,342  ("estault"  atMetz).  Thelackof 
usucaption  as  applying  to  movables  in  the  Customary  law  is  thus  to  be  ac- 
counted for  quite  naturally:  "Orleans,"  260,  271;  however,  it  is  not  certain  that 
the  possession  of  a  year  and  a  day  did  not  in  the  old  times  take  place  ("  Compil. 
d.  us.  Andegav.,"  35) ;  when  it  ceased  to  be  general  the  old  Customary  principle 
was  opposed  to  the  admission  of  the  Roman  usucaption  of  three  years.  —  Cf. 
as  to  German  law:  "Sachsensp.,"  II,  60,  1  (refusal  to  give  any  action  against 
third  parties  who  withhold  property  in  the  case  of  a  lending,  etc.).  Current 
maxims :  "  Hand  muss  hand  wahren  "  towards  1400  (the  hand  should  guarantee 
the  hand,  allusion  to  the  recourse  to  warranty  in  the  case  where  one  finds  the 
stolen  object  in  the  hands  of  some  one  other  than  the  thief;  cf.  as  to  the  double 
meaning  of  "wahren,"  to  warrant,  to  keep,  Ileusler,  II,  213).  Schroeder, 
p.  373;  Chaisemartin,  nos.  55  and  56.  —  English  law:  in  the  thirteenth  century 
the  owner  has  only  a  contractual  action  of  detinue  (upon  a  bailment)  against 
a  lender,  etc.  (Brncton,  fo.  102  b),  and  the  latter  is  the  only  one  allowed  to  bring 
the  action  "furti." 

'  Little  matters  the  good  or  bad  faith  of  the  acquirer. 

2  Prost,  "Ord.  des  Maiours,"  p.  228;  "Bayonne,"  53,  1;  104,  1  et  seq. 

^  The  action  for  a  thing  "adir6e"  (lost)  is  a  personal  action  which  is  purely 
ci\'il,  and  by  means  of  which  one  asks  for  the  restitution  of  the  object  which 
has  been  lost  from  the  third  party  who  holds  it  (and  not  a  reclaiming,  as  is 
thought  by  Thevenin,  "Mobilienvindic.  nach.  d.  Altfr.  Rechtsq.  d.  ]\I.-A.," 
p.  3,  and  Franken,  "Franz.  Pfandr.,"  p.  298).  It  is  based  upon  the  fact  of 
the  loss  rather  than  upon  the  right  of  ownership.     It  ought  to  belong  to  the 

297 


§  244]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

called  action  for  a  lost  thing,  and  the  reclaiming  of  movables,  there 
is  only  a  slight  shade  of  difference.^ 

(6)  In  cases  of  theft  (and  this  word  was  always  understood 
in  its  narrow  sense  without  including  fraud  and  abuse  of  con- 
fidence), the  man  robbed,  whether  the  owner  or  not,^  had  two 
actions  at  his  disposal;^  we  will  call  one  of  them  the  action  of 
theft,  the  other  a  demand  for  a  stolen  thing,  although  these  names 
are  not  found  in  the  texts.'*    These  are  both  criminal  actions.    The 

pledgor,  to  the  borrower,  etc.;  but  the  texts  assume  that  it  is  brought  by  the 
owner.  As  to  the  procedure  of  this  action,  cf.  Jobbe-Duval,  p.  159.  It  is 
only  mentioned  in  the  "Ass.  de  Jerus.,"  "C.  des  Bourg.,"  226  (220);  J. 
d'Ibelin,  80,  131;  Jacq.  d'lbelin,  54;  "Ass.  d'Antioche,"  "C.  des  Bourg.," 
9;  "Gr.  Gout.  deNorm.,"  87;  "  Fleta,"  I,  36;  Britton,  118;  "Reg.  Grim, 
de  la  Just,  de  Saint-Martin-des-Ghamps,"  p.  11;  cf.  "Summa  Norm.," 
16,  3. 

1  Cf.  in  English  law,  the  action  of  "detinue  sur  trover"  {Pollock  and  M ait- 
land,  II,  174),  and  in  German  law,  the  "Schlichte  Klage"  {Laband,  "Vermog. 
Klag.,"  p.  90),  which  is  the  opposite  of  the  "Anefangsklage,"  which  isonly  given 
in  cases  of  theft:  Behrend,  "Obs.  de  Actione  Simplici  (Schlichte  Klage)  Juris 
Germ.,"  1861. 

2  The  borrower,  the  pledgee,  etc.,  are  responsible  for  unforeseen  circum- 
stances and,  consequently,  for  theft ;  thenceforth  the  actions  arising  out  of  theft 
belong  to  them  (to  the  exclusion  of  the  owner) :  P.  de  Fontaines,  20, 10;  "A.  G., 
Bourg.,"  18;  "Ass.de  Jerus.,"  "  G.  des  Bourg.,"  56  (58);  J.  d'Ibelin,  119; 
Fleta,  I,  37.)  —  Reaction  against  this  rule:  Beaumanoir,  31,  15  and  16;  "Jos- 
tice,"  19,  35,  1;  "Bordeaux,"  161.  —  The  action  should  be  begun  within  a 
year  and  a  day  of  the  theft  or  the  loss:  "Jostice,"  19,  29,  1  and  161;  "Gr. 
Gout,  de  Norm.,"  17  and  19;  "Ass.  de  Jerus.,"  "G.  des  Bourg.,"  253  (252). 

—  In  the  tliirteenth  century  there  was  no  such  thing  as  a,  prosecution  by  the 
government;  the  man  who  was  robbed  and  his  relatives  had  to  bring  the  ac- 
cusation; the  criminal  action  was  private,  and  not  public:  "Jostice,"  19,  45, 
2.  —  Contra:  certain  Gustoms  of  the  South :  "Bayonne,"  103,  16;  "Lourdes," 
19;  cf,  Beaumanoir,  6,  12. 

'  Was  the  preliminary  examination  still  entrusted  to  the  man  who  had 
been  robbed  (investigation  and  search  of  the  house)?     Cf.  Jobbe-Duval,  p.  102. 

—  As  to  flagrant  offense,  ibid.,  p.  105;  simply  because  there  is  a  prosecution: 
Bracton,  3,  27,1;  "T.  A.  G.,  Bret.,"  101;  "Gr.  Gout.  deNorm.,"  81  (cf.  "Bay- 
onne," 67;  "Ass.  de  Jerus.,"  "  G.  des  Bourg.,"  238);  he  who  is  taken  in  the  act 
cannot  exonerate  himself;  "Ass.  de  Jerus.,"  "C.  des  Bourg.,"  241;  "Gr. 
Gout,  de  Norm.,"  18;  Beaumanoir,  31,  4,  16. 

^  English  Law,  Glanville,  10, 17;  Bracton,  io.  151;  "Fleta,"  55.  The  English 
common  law  gave  self-help  a  prominent  place  in  carrying  out  the  customary 
proceedings  for  the  recovery  of  stolen  movables,  but  in  the  thirteenth  century 
it  was  decided  that  the  man  who  took  justice  into  his  own  hands  should  by 
way  of  penalty  lose  the  object  which  he  took  back  (Britton,  I,  115);  thence- 
forth the  old  procedure  was  abandoned.  The  man  robbed  had  two  actions: 
(a)  the  appeal  of  larceny,  a  true  "actio  furti";  (6)  the  action  of  trespass  "de 
bonis  asportatis."  The  appeal  of  larceny  caused  the  one  who  started  it  to 
run  great  risks,  and  finally  it  did  not  even  assure  him  the  restoration  of  the 
stolen  objects.  After  the  time  of  Henry  III,  the  writ  of  trespass  was  the  only 
practical  means  whereby  the  victim  of  a  theft  could  recover  the  value  of  his 
goods;  but,  as  it  assumed  that  the  thief  had  acted  "vi  et  armis"  against  the 
king's  peace,  the  third  party  who  had  acquired  the  property  from  the  thief 
escaped  it;  this  was  a  deplorable  result,  not  only  in  itself,  but  because  the 
jurisconsults  drew  from  it  the  idea  that  the  thief  or  the  trespasser  had  become 
the  owner  of  the  object  which  he  had  seized. 

298 


Topic   2]  SYSTEM   OF   OWNERSHIP   OF   MOVABLES  [§  244 

first  is  more  formal  and  more  dangerous  than  the  second/  so 
much  so  that  recourse  is  scarcely  ever  had  to  it  unless  the  thing 
cannot  be  found.  This  action  does  not  differ  very  much  from  the 
old  Prankish  procedure  against  the  thief.  The  other  action,  which 
is  of  later  creation,  applies  to  the  case  where  one  prosecutes, 
not  the  thief,  but  a  third  party  who  has  acquired  the  prop- 
erty. This  second  action  does  not  contain  any  formal  accusation 
of  theft;  the  accuser  who  fails  is  not  liable  to  be  punished  like  a 
thief,  as  happens  when  he  brings  the  action  of  theft  (retaliation) ; 
the  defendant  who  is  found  guilty  will  ordinarily  be  compelled  only 
to  restore  the  thing  stolen ;  he  will  almost  always  escape  the  penal- 
ties of  theft  or  will  incur  only  a  lesser  punishment.  The  demand 
for  a  stolen  thing  ^  is  like  a  more  modern  and  less  barbarous 
form  of  the  action  of  theft,  —  in   transition  to  the  stage  when 

'  The  procedure  in  the  action  of  theft  is  very  archaic,  as  one  can  judge  from 
this  outline,  which  I  borrow  from  Jobbe-Duval,  p.  107:  1st.  Formal  accusation 
("Ass.  de  J^rus.,"  "C.  des  Bourg.,"  246  (252),  244  (249),  88  (90);  /.  d'Ibelin, 
62,  250;  "  Jostice,"  19,  4,  2;  "Et.  deSt.  Louis,"  2  17,  19;  "Gr.  Cout.de  Norm.," 
71)  and  offer  of  proof  (Beaumanoir ,  61,  4;  /.  d'Ibelin,  63),  surety  ("L.  de 
Beaumont,"  24),  the  placing  of  4  "deniers"  upon  the  thing  ("Et.  deSt.  Louis," 
2,  16,  cf.  Jobbe-Duval,  pp.  108,  118).  —  2d.  Immediate  denial  on  the  part  of  the 
defendant  with  offer  of  proof,  in  default  of  which  the  penalty  for  theft  is  in- 
curred; no  day  of  counsel :  P.  de  Fontaines,  13,  2;  "Forde  Beam,"  p.  64  {contra: 
"Et.  de  St.  Louis,"  2,  20;  "A.  C,  Bourg.,"  14).  — 3d.  Judgment  of  proof: 
"Ass.  de  Jerus.,"  "C.  des  B.,"  ;  imprisonment  of  both  parties:  "Et.  de  St. 
Louis,"  104  ("Livre  des  Droiz,"  257:  "Us.  de  Guynes,"  333).  —  4th.  Proof  by 
ordeals:  "L.  de  Beaumont,"  28;  by  the  duel:  "Jostice,"  19,  1,  2;  "Gr.  Gout,  de 
Norm.,"  71;  "For  de  Morlaas,"  81,  282;  by  witnesses:  "Et.  de  St.  Louis,"  2, 12; 
"A.  C.,  Bourg.,"  24.  —  Beaumanoir,  34,  45,  does  not  admit  of  a  man's  de- 
fending himself  by  bringing  in  his  warrantor;  contra:  "Ass.  de  Jer.,"  "C.  des 
B.,"  246  (252).  — 5th,  Pecuniary  penalties  ("Riom,"  24;  "Ass.  d'Antioche," 
"G.  des  B.,"  7,  60,  tariff  of  compositions),  but  generally  corporeal  penalties 
("Et.  de  St.  Louis,"  1,  29,  loss  of  an  ear,  a  foot,  death;  "Reg.  Grim,  de  Saint- 
Martin-des-Ghamps,"  p.  220);  with  confiscation  of  movables  ("Abbeville"  2; 
"Ass.  de  Jerus.,"  "G.  des  B.,"  227  (232);  "Glim,"  I,  p.  240  (328).  —  6th.  Re- 
taliation against  the  complainant  who  is  defeated:  "Et.  de  St.  Louis,"  1,  82; 
Beaumanoir,  6,  16;  L.  Delisle,  "Jug.  de  I'Echiq.,"  28,  206;  "Ass.  d'Antioche, 
Hte.  G.,"  11;  "Us.  de  Guynes,"  334.    Cf.  Jacobi,  94,  10. 

2  It  is  difficult  to  determine  the  exact  nature  of  the  demand  for  a  stolen  thing 
(a  name  created  by  Jobbe-Duval,  whose  terminology  we  follow).  We  see  in 
this  a  criminal  action,  such  as  an  action  of  theft  was,  without  attemj)ting  to 
conceal  the  fact  that  its  penal  character  is  perceptibly  lessened.  The  tliird 
party  in  possession  against  whom  this  action  is  brought  is  "i)laced  under  the 
necessity  of  accounting  for  the  obtaining  of  pos.session"  of  the  thing;  if  he  is 
not  successful  in  having  the  action  shifted  upon  his  warrantor  he  runs  the  risk 
of  being  punished  as  a  thief,  or,  at  least,  of  incurring  some  minor  penalty 
("Et.  de  St.  Louis,"  1,  91;  "A.  G.  Bourg.,*'  76).  As  to  the  procedure  in  this 
action  and  the  characteristics  which  reveal  its  penal  character,  cf.  Jobbe- 
Duval,  p.  112-159.  Formula  of  the  demand:  "This  thing  has  oecn  stolen 
from  me"  ("Et.  de  St.  Louis,"  2,  17;  "Asa.  de  J6rus.,"  "G.  des  B.,"  88  (90); 
"T.  A.  G.,  Bourgos,"  53;  "Bordeaux,"  18;  "Bergerac,"  105) ;  certain  texts  add, 
"It  is  mine"  (P.  de  Fontaines,  12,  1;  "A.  G.,  Bourg.,"  14);  but  this  variation  is 
not  essential,  as  the  action  maybe  brought  by  a  lender  ("A.  G.,  Bourg.,"  18; 
P.  de  Fontaines,  20,  10). 

299 


§  244]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

(after  the  office  of  public  prosecutor  had  arisen)  the  civil  and  the 
criminal  actions  were  separated  and  thieves  were  exposed  to  both 
an  official  prosecution  and  a  civil  action. 

§  245.  Market  Overt.  —  As  a  general  rule,  the  owner  who  re- 
covered a  stolen  or  lost  object  was  not  compelled  to  indemnify 
the  person  who  had  possessed  it,  even  although  the  latter  did  so 
in  good  faith  (for  questions  of  intent,  of  good  or  bad  faith,  are 
immaterial  in  the  old  law).  But  in  the  interest  of  the  lords  and 
communities  for  whom  fairs  and  markets  were  a  source  of  revenue, 
some  of  the  Customs,  many  of  which  are  Southern,  once  allowed  a 
man  who  had  bought  a  movable  in  a  fair  or  market  the  right  of 
demanding  the  restitution  of  the  price  paid.  Often  less  had  been 
paid  for  the  object  than  it  was  really  worth,  for  the  very  reason 
that  it  was  something  belonging  to  somebody  else,  and  the  owner 
had  the  advantage  of  being  able  to  retake  it  on  condition  of  re- 
storing the  price,  that  is  to  say,  of  indemnifying  the  man  who  had 
acquired  it.^  This  equitable  practice  (the  existence  of  which  is 
attested  from  the  eleventh  century  in  Germany  as  between  mer- 
chants) did  not  succeed  in  passing  into  the  common  law  of  Cus- 
toms in  the  form  of  a  general  rule,  but  it  shows  the  direction  in 
which  future  legislation  was  to  be  engaged;  these  are  considera- 
tions of  an  economical  order  which  were  to  give  the  latter  its 
final  shape.  This  practice,  moreover,  did  not  disappear;  some 
jurisconsults  of  the  eighteenth  century  even  extended  it  by 
likening  a  purchase  made  from  a  merchant  selling  the  same  sort 
of  goods  to  the  purchase  made  at  a  fair.  It  was  perpetuated  by 
the  Laws  of  October  6,  1791,  2,  11,  and  by  Art.  2280  of  the  Civil 
Code. 

§  246.  Reform  in  the  Roman  Direction  during  the  Fourteenth 
and  Fifteenth  Centuries.  —  The  reclaiming  of  movables  was 
little  by  little  introduced  into  practice  under  the  influence  of  the 
Roman  law;  ^  it  was  allowed  to  the  owner  whose  property  had 

^  Privilege  of  the  Jews  in  Germany:  Schroeder,  p.  698;  Fertile,  p.  258; 
Beaumanoir,  25,  22  etseq.;  "Et.  de  St.  Louis,"  2,  17;  "Bourg.,"  14,  12;  "Bor- 
deaux," 18;  "Perpignan,"25;  "Toulouse,"  "deemt.,"3;  "Avignon,"  "Stat.," 
108.  Numerous  charters  in  Germany  and  Switzerland:  cf.  Stobbe,  II,  618.  — - 
Pubhc  buying  (even  outside  of  a  fair  or  market):  "Montpellier"  (1204),  21; 
"Cahors,"  22;  "Luzech,"  82;  "Quatre-Vallees,"  32.  —  In  this  sense  "Arret 
Pari.  Paris,"  1636.  —  In  the  eighteenth  century  cf.  Pothier,  "Cheptels,"  1, 
4,  3,  40;  Denisart,  see  "Vol.,  17";  Soulatges,  on  "Toulouse,"  p.  245;  Dunod, 
p.  232. 

^  Boutaric,  I,  43,  p.  319;  "Gr.  Cout>,"  II,  16;  III,  53;  4.  Favre,  "Codex 
Fabr."  (1640),  6,  27,  11  (order  of  the  Senate  of  Savoy,  1593);  Fithou  on 
"Troyes,"  Art.  72,  p.  157  (1609);  Charondas,  "Pand.,"  4,  31,  p.  565.    Cf.  Deg- 

300 


Topic  2]  SYSTEM   OF   OWNERSHIP    OF   MOVABLES  [§  246 

been  stolen  or  lost/  as  well  as  to  the  man  who  had  voluntarily- 
relinquished  it;  one  no  longer  finds  in  the  sixteenth  century  the 
maxim:  "Movables  cannot  be  followed."  However,  there  still 
remain  important  vestiges  of  it,  either  because  of  inconsistencies 
or  for  practical  reasons:  1st.  In  the  South  as  well  as  the  North 
it  is  said:  "Movables  cannot  be  followed  by  way  of  mortgage."  ^ 
This  was  a  necessity  with  the  system  of  general  mortgages  then 
in  force,  if  they  wished  to  allow  a  debtor  to  dispose  of  his  mov- 
ables; this  rule  means:  (a)  sometimes  that  there  can  be  no 
mortgage  upon  movables  ("Paris,"  "Orleans");^  (6)  sometimes 
that  a  mortgage  on  movables  is  valid,^  but  carries  with  it  no 
right  of  reclaiming.^  2d.  The  Roman  usucaj)tion  of  three  years 
being  useless  under  a  system  which  excluded  all  reclaiming,  our 
practitioners  held  it  as  being  abolished,  and  applied  to  movables 
the  thirty  years'  prescription  which  was  in  use  for  immovables; 

heiviet,  p.  389.  Reclaiming,  a  purely  civil  action,  did  not  carry  with  it  any 
fine  against  the  complainant  in  case  he  were  defeated.  It  was  based  upon 
ownership  and  was  given  without  there  being  any  question  as  to  how  posses- 
sion had  been  lost,  in  case  of  ahenation  by  a  depositary,  etc.,  or  whether  the 
thing  had  been  lost  or  stolen  and  acquired  by  a  third  party  in  good  faith.  Cf. 
Boutaric,  I,  27,  p.  158  and  I,  35,  p.  244.  The  procedure  began  by  a  distraint 
of  the  object  in  litigation,  —  a  thing  which  was  indispensable  because  of  the 
rude  customs  of  former  times  ("Entiercement"  at  Orleans,  Pothier,  ed.  Bug.,  I, 
684) ;  at  the  request  of  the  complainant  and  without  the  authority  of  the  court, 
the  object  was  sequestrated  by  a  sergeant;  the  court  could  after  this  confide 
it  to  the  defendant  (^"ith  or  without  surety).  "Adveu"  and  " Contre-Adveu " 
("advooare,"  to  reclaim)  in  the  Customs  of  Anjou,  Poitou,  La  Rochelle,  with 
"Applegement"  (giving  of  surety)  by  both  parties,  as  is  done  in  matters  re- 
lating to  immovables:  Bucherellus,  on  "Les  Instit.  de  Just.,"  p.  604;  Loysel, 
754  (note);  Ragueau,  see  "Gloss." 

1  The  thief  (or  the  acquirer  in  bad  faith)  was  subject  to  a  criminal  action 
(a  public  action  from  the  day  when  the  public  prosecutor  could  act  officially; 
the  ordinary  individual  no  longer  brings  accusation,  but  is  limited  to  a  denun- 
ciation which  allows  him  to  escape  retaliation)  and  to  a  personal  action  ("ex 
delicto  ")  for  restitution.  Against  the  acquirer  in  good  faith  one  had  the  action 
of  reclaiming.  —  Abuse  of  confidence  was  likened  to  theft  and  punished  in  the 
same  manner  (cf.  Roman  "furtum"). 

2  "Cout.  Notoires,"  Art.  23  (by  mortgage).  Pos/,  "Origins  of  the  Mortgage." 
Movables  could  not  be  distrained  upon  when  in  the  hands  of  third  parties  by 
the  creditors  of  the  owner:  Boutaric,  I,  25;  Masuer,  30,  13;  Viollet,  p.  740; 
Valette,  "R.  Foelix,"  II,  365. 

3  "Paris,"  170;  "Orl6ans,"  477;  Loysel,  487;  Civil  Code,  2119. 

*  Anjou,  Maine,  Normandy.  —  As  to  the  South  cf.  Augeard,  "Arrets,"  I, 
900;  Jidien,  "E16m.,"  p.  352. 

*  (A)  Whether  the  acquirer  were  in  good  or  bad  faith,  for  that  mattered 
little  in  the  old  law.  However,  certain  Customs  only  protect  the  acquirer  in 
good  faith  (following  the  Roman  law:  Faulicnne) ;  Des.mnres,  165;  "  Cout.  Not.," 
23;  "Melun,"  313;  "Champagne,"  65;  "Sens,"  131;  L'Hommeau,  "Maximes," 
III,  14.  —  (B)  Whether  the  mortgage  be  general  or  special,  although  there 
may  have  been  some,,  difficulty  in  the  case  of  the  latter  (cf.  Civil  Code,  2102, 
lessor).  Terrien,  on  "Norm.  "  8,  1,  p.  258;  Boerius,  on  "Bourges,"  "H3^p.," 
§  2;  Bessian  de  Pressac,  on  Auvergne,"  24,  52,  p.  215;  Rebuffe,  on  Masuer, 
30,  13.  —  Chassaneus,  on  "Bourg.,"  5,  3,  4. 

301 


§  246]  OWNERSHIP    AND    REAL    RIGHTS  [Chap.  II 

the  reclaiming  of  movables  was  thus  possible  during  thirty  years/ 
at  least,  in  cases  of  voluntary  dispossession.  As  to  movables  which 
were  stolen  or  lost,  our  old  authors  were  very  much  divided  as 
to  the  case  in  which  they  had  passed  to  the  possessor  in  good 
faith.  Some  of  them  looked  upon  the  stolen  or  lost  property 
as  being  incapable  of  having  a  prescription  run  against  it;  the 
others  here  admitted  either  the  thirty  years'  prescription  or 
the  three  years'  usucaption}  3d.  Possessory  actions,  which  were 
inconsistent  with  the  old  system  of  the  ownership  of  mov- 
ables, did  not  succeed  in  being  introduced  into  practice,  even 
after  the  reform,  for  they  were  not  so  useful  as  they  were  in 
the  case  of  immovables.^ 

§  247.  Judicial  La^  of  the  Eighteenth  Century.  —  INIovables, 
says  Dumoulin,  can,  "una  hora  transire  per  centum  manus";  if 
the  owner  is  permitted  to  reclaim  them  during  thirty  years,  the 
fear  of  being  sued  would  drive  away  purchasers;  and  the  owner,  if 
he  wishes  to  make  use  of  his  right,  runs  the  risk  of  becoming  in- 
volved in  fruitless  litigation  because  of  the  difficulty  which  ex- 
ists of  establishing  the  identity  of  the  movables  reclaimed.  The 
Neo-Roman  doctrine  of  the  reclaiming  of  movables  during  thirty 
years  was  all  the  more  defective  because  at  the  time  when  it  was 
established  commerce  was  making  progress  and  transactions  in 
movables  were  on  the  increase.  Practice  had  to  restrict  the  rights 
of  the  owner,  who  was  almost  always  guilty  of  imprudence,^  in 
order  to  give  an  advantage  to  the  purchaser  in  good  faith,  who 

1  Imbert,  "  Enchir.,  "  see  "  Usuc,"  p.  305;  "  Inst.,  for.,"  I,  35,  7;  Fontanon,  on 
Masuer,  XXII,  "de  Prescr.";  "Berry,"  12, 10;  Buchereau,  p.  155.  —  Dissenting 
Customs:  (a)  no  more  reclaiming  after  the  seisin  of  ayear  and  a  day:  "Compil. 
de  us.  Andeg.,"  no.  35;  "L.  d.  Droiz,"  no.  51.  Cf.  Boutaric,  I,  27.  (b)  Usu- 
captionof  3  years:  "Gr.  Cout.,"  28;  Chassaneus,  on  "Bourg.,"  13,  8;  Chnrondas, 
"Band.,"  2,  22,  p.  270;  "Anjou,"  419;  "Maine,"  434  (legal  title  and  good 
faith);  "Melun,"  169;  "Sedan,"  324;  "Clermont  en  Arg.,"  14,  8;  "Amiens," 
163  (good  faith  only  ).  (c)  Usucaption  of  from  five  to  ten  years:  "Bretagne, 
A.  C,"  274;  "N.  C,"  284. 

2  Augeard,  I,  3.  —  Auroun  des  Pommiers,  on  "Bourb.,"  3,  33.  —  Pothier, 
"Prescr.,"  no.  204;  Denisart,  see  "Vol,"  no.  19,  cf.  Civil  Code,  2279,  2280. 

3  "Gr.  Cout.,"  2,  19,  21;  Masuer,  11,  66;  "Bourges,"  56.  —  However,  Bou- 
taric, I,  31,  p.  189,  admits  the  complaint.  Cf.  post,  "Possession";  Beaumanoir, 
32,  15;  "Gr.  Cout.,"  p.  250;  Loysel,  754,  755,  756  (and  citations);  Bucherellus 
on  the  "Inst,  of  Justinian,"  p.  604:  "utrubi  intordictum"  admission  "gallice 
nuncupamus"  follows  the  description  of  the  procedure  of  the  admission;  but  the 
question  of  owTiership  and  that  of  possession  are  passed  upon  at  the  same  time; 
the  latter  is  found  to  be  as  though  absorbed  in  the  action  for  real  property: 
Ragueau,  see  "Gloss.,"  and  "applegement."  —  Let  us  notice  that  possessory 
actions  were  possible  in  the  case  of  every  kind  of  movables:  "Paris,"  97; 
"Orl6ans,"  489;  "Ord."  1667,  18,  2. 

^  Order  of  the  Parliament  of  1636:  reclaiming,  but  charged  with  the  indem- 
nifying of  the  purchaser  in  good  faith:  Jobbe-Duval,  p.  228. 

302 


Topic  2]  SYSTEM    OF    OWNERSHIP    OF   MOVABLES  [§  247 

was  in  no  way  in  fault.^  1st.  Some,  like  Ferriere,  accord  to 
the  latter  the  advantages  of  the  prescription  of  thirty  years, 
by  showing  themselves  not  very  exacting  in  the  matter  of  the 
proof  of  la^A-ful  title  (witness,  simple  affirmation)  .^  2d.  Others, 
with  Pothier,  in  his  Commentary  on  the  Customs  of  Orleans,^ 
declare  that  the  possessor  of  the  movable  is  presumed  to  be  the 
owner  until  the  contrary  is  proved;  he  needs  neither  prescription, 
his  ownership  being  looked  upon  as  established,  nor  tifle,  posses- 
sion standing  him  in  lieu  of  title,  for  it  is  not  customary  to  consum- 
mate the  purchase  of  movables  by  writing.  3d.  From  this  point 
to  the  establishment  of  a  presumption  of  ownership  "juris  et  de 
jure"  for  the  benefit  of  the  possessors  of  movables  there  was  but 
a  step,  and  this  step  was  taken  towards  the  second  third  of  the 
eighteenth  century  by  the  practice  of  the  Chatelet  of  Paris,  which 
is  summed  up  by  Bourjon  in  his  celebrated  formula:  "As  far  as 
movables  are  concerned,  possession  equals  title."  ^    This  was  a 

1  However,  a  reclaiming  which  could  be  made  during  thirty  years  still 
continued  to  exist  in  countries  of  written  law  {Serves,  "Inst.,"  " Usucaption " ; 
Boutaric,  "Inst.,"  p.  182;  Julien,  "Elem.,"  2,  5,  4;  "Comm.  s.  les  Statuts  de 
Provence,"  II,  p.  4i5).  According  to  Merlin,  Guyot,  see  "Prescr.,"  2,  5  (1785) ; 
Flaxist,  on  522  "Normandie"  (1781);  Mall,  de  la  Mothe,  ;' Quest.,"  p.  291 
(1787),  this  would  have  been  the  common  law  of  France  applicable  in  localities 
where  the  Customs  were  silent. 

2  "Maine,"  434.  Above  100  "livres"  the  proof  of  lawful  title  had  to  be 
in  writing;  this  would  have  been  the  same  thing  as  doing  away  with  usucaption. 
Pothier  authorized  proof  by  means  of  witnesses;  Ferriere,  "Diet.,"  see  "Imm.," 
is  contented  with  a  mere  affirmation  on  the  part  of  the  possessor.  To  the  same 
effect,  R.  de  La  Combe,  "Arrets,"  p.  255;  Boucheul,  s.  372;  "Poitou":  Chabrol, 
B.  17,  1;  "Auvergne,"  etc. 

3  "Cout.  d'Orleans,"  title  "Prel.,"  s.'2;  "Propriety,"  no.  282  (elsewhere 
Pothier  requires  the  usucaption  of  three  years,  but  still  allowing  the  proof  of 
title  by  means  of  witnesses:  "Prescr.,"  IX,  386,  ed.  Bug.,  or  by  means  of  a 
mere  allegation,  "Don  entre  Mari  et  Femme,"  no.  67).  Cf.  Denisart,  see 
"Meubles,"  no.  32;  Dupineau,  s.  42\;Anjou,  "Encycl.  Meth.,"  see  "Meubles"; 
Cottereau,  "Dr.  Gen.  de  la  France  et  Dr.  Partic.  de  la  Touraine,"  no.  7279; 
Jobbe-Duval,  p.  230.  —  Consequences:  (a)  no  revocation  of  gifts  given  by  hand; 
no  reclaiming  on  the  part  of  the  seller  against  the  buyer  (but  if  the  price  has  not 
been  paid,  the  seller  for  cash  may  reclaim,  for  in  this  case  delivery  does  not 
transfer  ownership:  cf.  Art.  176,  "Paris,  N.  C,"  and  177;  Pasquier,  "Inst.," 
p.  256,  and  the  commentaries  on  the  Customs;  privilege  of  the  seller  of  movable 
effects);  (b)  the  purchaser  in  good  faith  is  not  protected  from  reclaiming  when 
he  has  received  a  movable  which  was  deposited  or  pledged,  etc.,  from  the  un- 
faithful depositary,  etc.  By  proving  the  breach  of  confidence  the  depositary, 
etc.,  overthrows  the  presumption  of  ownership  in  the  possessor. 

*  Current  formula,  of  which  Bourjon  is  consequently  not  the  originator: 
Bourjon,  "Dr.  Commun  de  la  France"  (1747),  3,  21,  1  and  2;  6,  8,  3,  1,  3  and 
18;  6,  8,  3,  4,  26.  Good  faith  upon  the  part  of  the  purchaser  is  demanded  by 
Bourjon  and  by  Valin,  on  "La  Rochelle,"  Art.  60.  Were  it  not  for  Art.  2279 
of  the  Civil  Code,  one  might  doubt  if  this  jurisprudence  had  continued  after 
this.  —  Consequences:  (a)  the  purchaser  in  good  faith  who  is  put  in  actual 
possession  following  a  breach  of  confidence  is  not  open  to  reclaiming  on  the 
part  of  the  owner;  the  latter  finds  himself  limited  to  a  personal  action  against 

303 


§  247]  OWNERSHIP   AND    REAL    RIGHTS  [Chap.  II 

radical  and  simple  solution,  which  Art.  2279  of  the  Civil  Code  has 
perpetuated,  and  which  gave  the  needs  of  business  full  satisfac- 
tion: the  purchaser  in  goodfaith^  of  a  movable  became  the  absolute 
owner  from  the  moment  when  he  took  possession  (excepting  if  the 
movable  were  lost  or  stolen). 

Thus  was  brought  to  a  close,  by  means  of  a  reaction  the  reason 
of  which  we  must  not  seek  elsewhere  than  in  the  needs  of  business, 
the  evolution  of  our  old  law  as  far  as  movable  property  is  con- 
cerned. It  broke  with  the  Roman  tradition,  after  having  almost 
completely  accepted  it,  and  to  a  certain  extent  returned  to  the 
past,  but  in  a  very  different  spirit  from  that  which  had  inspired 
primitive  legislation:  witness  the  difference,  which  was  unknown 
formerly,  between  the  possessor  in  good  faith  and  the  possessor  in 
bad  faith. 

the  person  to  whom  he  mistakenly  entrusted  his  movable;  (6)  movables  can- 
not be  followed  by  a  mortgage;    (c)  between  two  purchasers  of  the  same 
movable  the  one  who  first  received  deUvery  in  good  faith  is  preferred:  Civil 
Code,  2279,  2102,  1813,  1141,  2119. 
^  Cf.  Deghewiet,  p.  149,  etc. 


304 


Topic  3] 


OWXERSHIP    OF    LAXD 


[§248 


Topic  3.    Ownership  of  Land 


§  248.  Real  and  Personal  Rights. 
§  249.  Real  and  Personal  Actions. 
§  250.  "Jus  ad  Rem." 
§  251.  Ownership  of  Land. 
§  252.  Restrictions  on  the  Right   of 
OwTiership. 


§§  253,  254.  Freedom  to  Enclose. 

§  255.  Limited  OwTiership. 

§  256.  Joint    Ownership    with    Joint 

Possession. 
§  257.  The  Community. 
§  258.  Incorporeal  Property. 


§  248.  Real  and  Personal  Rights.  —  It  has  been  asked  if  the 
distinction  between  real  and  personal  rights  ^  did  not  remain  un- 
known to  the  Germanic  law.  It  is  true  that  this  distinction 
scarcely  appears  if  one  goes  back  to  the  primitive  period  where 
every  attack  upon  the  rights  of  another  was  settled  by  private 
vengeance  or  an  action  "ex  delicto."  -  But  when  this  phase  had 
been  passed  through,  the  classical  contrast  between  real  and  per- 
sonal rights  was  disclosed  in  the  Germanic  law  itself.  It  did  not 
entirely  coincide  with  the  Roman  classification,  for  the  class  of 
real  rights  encroached  upon  that  of  personal  rights;  ^  at  the  same 
time,  it  is  permissible  to  bring  the  two  legal  systems  on  this  point 
together,  and  they  tended  more  and  more  to  resemble  each  other; 

^  The  expression  Real  Rights  as  contrasted  with  the  term  Personal  Rights, 
rights  of  claim  or  obligation,  is  derived  from  the  Roman  terminology  relative 
to  procedure;  actions  of  which  the  "intentio"  of  the  formula  did  not  designate 
the  defendant  were  called  actions  "in  rem";  those  in  which  this  designation 
occurred  were  called  actions  "in  personam."  This  peculiarity,  as  often  hap- 
pens, was  fundamental;  that  is  why  it  could  serve  as  a  basis  for  the  separation 
of  private  rights  into  two  classes:  real  rights  and  personal  rights.  Already 
the  jurisconsults  made  use  of  the  expression  "personalis  actio"  (for  example, 
Dig.,  50,  16,  178,  2);  in  the  Middle  Ages,  as  the  antithesis  of  this,  the  term 
"realis  actio"  was  used;  from  applying  to  actions  these  expressions  came  to 
be  applied  to  the  rights  themselves.  The  expression  "realis  actio"  is  found  in 
Tancred,  "Ord.  Jud.,"  2,  13,  and  not  in  Pillius.  Neither  the  "Petrus"  nor  the 
" Brachylogus "  uses  it.  "Jura  realia,  personalia":  "Glose,"  "Utendi,"  on 
§  2,  "  Inst,  de  Act.,"  4, 6.  As  to  the  conception  of  the  "jus  in  re,"  cf.  details  in 
Landsberg,  "Gl.  d.  Accursius,"  p.  81  et  seq. 

^  The  complainant  complains  of  an  "invasio"  or  "usurpatio"  of  the  land 
which  has  taken  place, "  injuste,"  "  malo  ordine  "  ("  Landraub"  among  the  people 
of  the  North):  Brunner,  II,  684,  512;  "Summa  Norm.,"  "C.  de  Querelis." 

^  The  Roman  jurisconsults  had  adhered  to  the  simple  idea  of  the  "domi- 
nium" completed  by  a. small  number  of  servitudes,  and  restricted  as  an  excep- 
tion by  the  usufruct.  In  the  Middle  Ages,  on  the  other  hand,  ownership  is 
divided,  real  rights  become  multiplied;  one  can  be  an  owner  as  lord,  as  vassal, 
as  copyholder;  one  can  be  owner  during  one's  life  or  by  right  of  inheritance; 
one  can  be  owner  in  the  quality  of  a  jiledge  creditor,  or  by  right  of  guardian- 
ship. Ownership  under  these  various  forms  is  similar  to  the  usufruct  and  the 
real  rights.  —  Dclbruclc  has  even  maintained,  "  Uebern.  fremd.  Schuld.,"  that 
rights  of  claim  were  considered  as  things  and  constituted  objects  of  ownership. 
See  the  refutation  of  this  opinion  in  Heusler,  §  75. 

305 


§  248]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

in  France,  especially,  the  Roman  doctrine  easily  passed  into  the 
books  and  into  practice. 

§  249.  Real  ^  and  Personal  Actions.^  —  The  distinction  of  rights 
is  manifested  in  procedure  by  the  contrast  between  real  actions 
and  personal  actions,  and  this  latter  is  already  manifested  in  the 
Barbarian  laws,  especially  in  the  Lombard  laws,  in  spite  of  the 
penal  character  which  the  actions  which  were  admissible  at  this 
period  had  still  preserved  in  many  respects.  Some  use  the  typical 
formula:  "malo  ordine  possides";^  in  others  the  taking  of  an 
oath  is  demanded,  "dare  debes,"  being  based  upon  a  contract  or 
an  offense,  "vadia  dedisti  de  solvendo  mihi  decem  solidos,"  "occi- 
disti  servum  meum,"  etc.  In  the  first  case  the  defendant  must 
establish  his  right  over  the  thing  which  he  detains  ("terra  propria 
mea  est  per  successionem  patris  mei");  in  the  second  case  it  is 
sufficient  for  him  to  deny  the  debt  and  to  swear  that  it  has  no 
existence.*    It  is  difficult  not  to  see  in  these  two  classes  of  actions 

'  CJ.  especially  as  to  the  Frankish  period;  Brunner,  §  119  (bibl.);  Hiihner, 
"Immobiliarprocess,"  1895  ("Unters."  by  Gierke),  Laband,  Planck,  Heusler, 
op.  cit.;  Pertile,  IV,  p.  259. 

2  Our  old  authors,  from  the  thirteenth  century  on,  admit  of  a  third  class  of 
actions,  mixed  actions,  on  the  subject  of  which  their  ideas  are  often  in  confusion : 
"Gr.  Cout.,"  p.  546  (both  a  personal  action  and  an  action  on  the  mortgage 
for  the  payment  of  a  rent). 

^  Procedure  on  the  reclaiming  of  Immovables  during  the  barbarian  period. 
See  details  in  Hiibner,  op.  cit.,  and  Brunner,  §  119.  —  The  actions  arising: 
1st,  by  "mannitio"  or  "bannitio";  2d,  or  by  an  undertaking  to  appear  in 
court  ("adramire")  {cf.  "vadimonium"  at  Rome);  3d,  or  by  the  "Anefang," 
a  formal  seizure  of  the  thing,  just  as  in  the  case  of  movables:  "  Dec.  Child.,"  3. 
If  necessary,  "visio  terras,"  in  order  to  settle  upon  the  object  of  the  litiga- 
tion {cf.  Anglo-Norman  Custom);  Brunner,  "Entst.  d.  Schwurg.,"  p.  173. — 
The  defendant  may  oppose  his  adversary:  1st,  by  relying  on  some  kind  of  an 
original  acquirement,  such  as  the  "aprisio";  2d,  by  referring  to  his  grantor; 
the  recourse  to  the  warrantor  and  the  part  played  by  the  latter  are  to  be  ac- 
counted for  by  the  penal  character  which  this  action  at  first  had;  3d,  by  sajang 
that  the  land  came  to  him  from  his  relatives  by  way  of  an  inheritance;  in  which 
case  proof  by  witnesses  on  the  part  of  the  plaintiff  is  excluded:  "Sal.  Extrav.," 
c.  7  and  8;  "Rib.,"  67,  5.  —  The  defendant  who  is  found  guilty  should  restore 
the  land  and  pay  a  composition  ("legis  beneficium");  if  the  latter  is  not  paid, 
for  example,  for  reasons  of  an  equitable  nature,  the  restitution  takes  place 
"sana  manu."  —  Cf.  the  curious  procedure  described  in  the  Law  of  the  Ala- 
mans,  12,  8,  apropos  of  a  lawsuit  between  two  families.  Cf.  "  L.  Bai.,"  16  and  11. 

*  (A)  Action  "malo  ordine  possides."  This  formula,  which  betrays  the 
delictual  character  that  the  action  originally  had,  is  interpreted  in  "Expos.," 
§  2  e<  seq.;  "  Liut.,"  90.  The  school  of  Pavia  introduced  alongside  of  it  a  more 
modern  Roman  form:  instead  of  "Petre,  te  appellat  Martinus,  quod  malo 
ordine  possides  terram,"  they  say:  "P.  te  appellat  M.  quod  terram,  quam 
tenes,  sua  propria  est"  ("s.  Roth.,"  227).  —  Cf.  the  canonists,  such  as,  Tancred, 
etc.;  Heusler,  §  78;  Hiibner,  p.  48;  "Roth."  ("Lib.  Pap."),  216,  222,  227, 
228,  231,  234;  Rozihre,  "Form.,"  no.  427  ("Cart,  sen.,"  27),  480,  481;  "Liut.," 
18,  77.  Is  this  action  given  against  the  depositary  or  the  borrower  of  a  mova- 
ble? Cf.  post,  "System  of  Movable  Property":  "Liut.,"  130,  86;  Rozicre, 
463  (restitution  of  the  price,  the  object  having  disappeared).  —  (B)  Action 

306 


Topic  3]  OWNERSHIP   OF   LAXD  [§  250 

the  precedent  for  the  "Klagen  auf  Gut"  and  "um  Schuld"  of  the 
German  Customs  of  the  thirteenth  century.^  In  France  the  dis- 
tinction was  reclothed  at  a  very  early  period  with  Roman  forms 
and  lost  all  its  originality.-  The  real  action,  the  "  causa  proprie- 
tatis"  or  suit  for  real  yroyerty,  has  its  own  particular  procedure;  ^ 
it  can  be  begun  at  any  time;  ownership  is  not  lost  by  non-use,  thus 
differing  from  real  rights.^  It  assumes  that  the  owner  gives  proof 
of  his  right;  for  this  he  will  ordinarily  invoke  prescription;  if  he 
does  not  do  this  he  will  produce  a  title,  and  the  latter,  at  least,  if 
it  is  previous  to  the  possession,  will  permit  him  to  prevail  over  the 
possessor,  for  although  he  does  not  establish  an  absolute  proof,  this 
is  a  very  strong  presumption  in  his  favor. ^ 

§  250.  "Jus  ad  Rem."  ^  —  There  was,  moreover,  an  attempt  in 
the  doctrine,  which  was  almost  without  any  result,  to  get  away 
from  these  ideas  by  admitting  the  third  species  of  rights,  the 

"dare  debes."  —  "Roth.,"  362,  382;  "Liut.,"  8,  etc.  —  Controversy  as  to  the 
action  by  the  buyer  against  the  seller  for  delivery  of  the  object  sold:  Roziere, 
nos.  477,  472.  Heusler,  §  78,  points  out  that  the  school  of  Pavia  Romanizes 
these  distinctions:  cf.  "Form.  s.  Roth.,"  227.  See  also  the  canonists,  for 
example,  Tancred,  etc. 

^  "Richtsteig  Landrechts"  (ed.  Homeyer,  1857),  c.  5,  adds  to  it  the  "Klage 
um  Anevang";  "Sachsensp.,"  I,  70;  II,  3  and  III,  79.  Various  theories  as 
to  the  exact  nature  of  these  actions:  Delbriich,  "Dingl.,  Klag,"  1857;  Planck, 
"Gerichtsverfahren,"  1878;  Laband,  "Vermog.  Klagen,"  1869  (every  action 
by  which  one  claims  something  other  than  money  is  a  "Klage  auf  Gut"): 
Planck,  "Deutsch.  Gerichtsverfahr.,"  1879,  I,  339  ("Klage  um  Schuld": 
every  action  which  has  for  its  object  a  prestation  on  the  part  of  the  defendant, 
for  example,  the  action  for  delivery  of  the  thing  sold,  which  Laband  looks 
upon  as  a  "Klage  auf  Gut").  Heusler,  §  78,  likens  the  "Klage  auf  Gut"  to 
the  real  action  and  the  "Klage  um  Schuld"  to  the  personal  action. 

2  Cf.  especially  Beaumanoir,  c.  6  ("Des  Demandes"),  32:  "personal  claims 
.  .  .  concern  the  person  (contracts,  torts);  real  claims  when  one  claims  an 
inheritance;  mixed  claims  .  .  .  begin  by  being  personal  and  then  become 
real  (action  for  delivery  of  the  thing  sold)."  In  the  first  case  the  tribunal  of 
the  domicile  of  the  defendant  has  jurisdiction;  in  the  second  and  third  cases 
the  lord  from  whom  the  inheritance  is  held  has  jurisdiction.  Day  of  taking 
counsel  and  day  of  view  in  the  case  of  claims  for  inheritances :  P.  de  Fontaines, 
13;  "Jostice,"  p.  97;  "Gr.  Gout,  de  Fr.,"  pp.  202,  351,  404,  459,  515;  "Stil. 
Parlam.,"  passim,  "Const,  du  Chat.,"  20,21;  Boutaric,  I,  27.  The  "Summa 
Norm.,"  c.  66,  "de  querelis"  still  takes  the  early  point  of  view.  Cf.  Tardif, 
p.  clvi;  cf.  Bracton,  III,  3;  "Flcta,"  I,  2,  4,  5,  9;  "Brachylogus,"  4,  19;  "na- 
scitur  omnis  actio  ex  obligatione  vel  rei  detcntione." 

3  Pillius,  I,  12;  Tancred,  II,  13;  G.  Durand,  "Specul.,"  II,  1  and  4,  2; 
"Stilus  Pari.,"  c.  17;  "Gr.  Cout.  de  Fr.,"  pp.  350,  493,  532;  Boutaric,  I,  22; 
Masuer,  10;  Tardif,  "Proc6d.  au  XIIP  siecle,"  p.  36;  Ferrihre,  see  "Action 
Rdelle";  Pothier,  IX,  199,  ed.  Bug. 

*  Peleus,  "Quest.  Illustres,"  8;  Pothier,  no.  276.  —  Cf.  as  to  the  Com- 
mentators: Landsberg,  §  9,  19.  —  As  to  the  early  law,  cf.  post,  "Tenure  of  a 
Year  and  a  Day." 

*  Pothier,  323.  As  to  the  literature  previous  to  this.c/.  Landsberg,  op.  cit.; 
E.  Levy,  "Thtee,"  1896. 

^  Briinneck,  "Ueb.  d.  Urspr.  d.  sog."  "Jus  ad  Rem,"  1869;  Heusler, 
§  77;  Landsberg,  p.  88. 

307 


§  250]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

"jus  ad  rem,"  being  halfway  between  the  "jus  in  re"  and  the 
"jus  in  personam."  No  traces  of  these  are  found  in  the  Com- 
mentary of  Accuraus,  but  Jacques  de  Revigny  (1296)  gives  a  "jus 
ad  rem"  to  the  vassal  who  has  been  given  the  investiture  of  a  fief 
by  symbolical  methods,  and  who  has  not  been  put  into  physical 
possession  of  it.^  It  is  easy  to  recognize  here  the  influence  of 
Roman  ideas;  they  tended  to  make  of  the  investiture  simply  a 
binding  act,  and  not  an  act  of  the  transfer  of  a  real  right;  it  is  the 
Roman  idea  which  alone  could  have  had  this  efTect.  Against  the 
lord  the  "jus  ad  rem"  gave  the  right  to  demand  being  put  into 
possession;  against  third  parties  it  had  only  a  limited  efficacious- 
ness. In  the  French  Customs  of  the  fourteenth  and  fifteenth 
centuries  by  "jus  ad  rem"  is  understood  the  usufruct,  which  is 
contrasted  with  the  "jus  in  re"  or  ownership;  ^  in  the  eighteenth 
century  it  is  claims  which  are  designated  in  this  way.^ 

§  251.  Ownership  of  Land.^  —  It  is  not  for  us  here  to  go  over 
the  history  of  the  ownership  of  land  and  the  various  phases  through 
which  it  passed  under  the  old  system :  ^  agrarian  joint  ownership, 
family  o\\Tiership,  feudal  ownership,  before  coming  to  the  modern 
form  of  individual  ownership.®    Let  us  simply  recall  the  fact  that, 

1  Cited  by  Balde.  According  to  the  "L.  Feud.,"  investiture  resulted  in 
the  acquiring  of  a  real  right,  cf.  II,  26,  15;  7,  1;  81;  Baraterius,  "L.  Feud.," 
App.  4,  n.  3,  considers  investiture  as  a  contract  and  only  causes  a  real  right 
to  be  acquired  by  virtue  of  delivery.  —  Cf.  in  the  common  law  the  man  chosen 
for  some  service  cannot  exercise  it  until  after  he  has  been  confirmed  and 
sanctioned:  "in  VI,"  3,  7,  8.  —  With  regard  to  the  commentary  "Agitur,"  on 
the  "1.  1  pr.,  D.,"  19,  1,  cf.  Landsberg,  p.  90. 

2  "Gr.  Cout.  de  Fr.,"  p.  195;  Boutaric,  I,  1. 

3  Pothier,  "Introd.  aux  Cout.,"  no.  108. 

*  Terminology:  "proprietas,"  "dominium."  "Dominium"  and  "domi- 
nus"  apply  as  well  to  the  power  of  the  lord  as  to  ownership:  "Gr..  Cout.  de 
Fr.,"p.232:  " seigneur foncier."  "Seiiorio"  in  the  "SietePart."  Theowner 
of  a  movable  is  called  "seigneur  de  la  chose"  by  Britton  I,  60.  Thirteenth 
century,  Germany :  "Eigenschaft,"  "Eigenthum"  (1230);  previously  " eigen " 
or  "erbe"  to  designate  the  land  as  contrasted  with  the  fief,  "Lehn,"  Heusler, 
§  86.  Cf.  as  to  the  primitive  conception  of  Germanic  ownership:  Champeaux, 
"Gr.  Encycl.,"  see  "Propriete";  R.  Caillemer,  "Ex6cut.  Testam.,"  pp.  275, 338. 

^  As  to  the  contrast  between  the  absolute  character  of  the  Roman  "do- 
minium" and  the  relative  character  of  ownership  in  the  Middle  Ages  nowhere 
is  this  relativeness  so  strongly  marked  as  in  England,  ^vdth  its  curious  theory 
of  estates  ("status"),  rights  or  interests  which  one  may  have  over  a  piece  of 
land  which  are  more  or  less  extensive  and  of  longer  or  shorter  duration,  among 
which  figure  alongside  of  the  right  of  the  freeholder  that  of  the  mere  tenant 
whose  lease  ceases  "ad  nutum."  Estates  already  existed  in  the  time  of 
Bradon;  Littleton  speaks  of  tenures  in  fee  simple,  in  fee  tail,  for  life,  for  a 
term  of  years,  at  will,  by  copyhold,  and  by  the  rod.  The  emploj^ment  of 
clauses  limiting  the  rights  of  the  grantee  (Statute  "De  Donis  Conditionali- 
bus,"  1285)  contributed  no  little  to  this  splitting  up  of  ownership.  A  clas- 
sification of  rights  over  the  land  came  into  existence  which  was  connected 
with  status  or  the  estate  of  persons:  Pollock  and  Maitland,  II,  10  and  76. 

^  As  to  the  idea  of  ownership  in  the  writings  of  the  Glossators,   cf. 

308 


Topic  3]  OWNERSHIP  OF  LAND  [§  252 

if  the  Revolution  has  changed  the  tenant  into  the  sole  proprietor 
of  the  ground,  it  only  sanctioned  an  evolution  begun  a  long  time 
since  and  already  almost  accomplished.^  Collective  ownership 
survived  of  its  own  accord  in  the  town  lands,  the  partition  of 
which  the  Convention  ordered;  from  the  early  Middle  Ages  the 
larger  portion  of  the  land  in  France  belonged  to  individuals  and 
to  families,  and  not  to  communities.  The  rights  of  the  family 
had  been  on  the  decrease.  Finally,  the  domain  ownership  of  the 
lord  tended  more  and  more  to  become  nothing  but  a  servitude; 
the  tenant  invested  with  the  beneficial  ownership  was  consid- 
ered as  the  real  owner.^  It  is  thus  that  Pothier  looked  upon  it 
in  his  Treatise  on  the  Law  of  Ownership  of  Property,  no.  3: 
"that  kind  of  ownership  (immediate  ownership)  is  not  the  own- 
ership of  property  which  is  to  be  the  subject  of  the  present 
treatise,  and  is  the  beneficial  ownership;  the  man  who  has  this 
ownership  is  called  the  proprietor,  the  one  who  has  the  immediate 
ownership  is  simply  called  the  lord;  it  is  the  beneficial  lord  who  is 
really  the  owner  of  the  inheritance."  ^ 

§  252.  Restrictions  on  the  Right  of  Ownership.  —  In  spite  of 
the  changes  which  had  taken  place,  the  owner  was  far  from  having 
the  free  enjoyment  of  his  land  in  17S9.  He  cultivated  it  and 
gathered  the  produce  of  it,^  but  there  still  existed  hampering 

Landsberg,  p.  92;  Piccinelli,  "Stud.  int.  all.  Defin.  Dominium  est  Jus  Utendi," 
etc.,  1886. 

1  "L'CEuvre  Sociale  de  le  R^vol.,"  190.  —  Chenon,  R.  Beudant,  Sagnac, 
op.  cit.;  H.  See,  "Les  Classes  Rurales,"  1901. 

2  The  Romans  granted  a  "vindicatio  utilis,"  for  example,  to  the  holder 
of  a  long-term  lease;  the  Glossators  made  a  "dominium  utile"  correspond 
with  this  action  and  contrasted  it  with  the  "dominium  directum,"  which 
belonged  to  the  man  who  had  the  immediate  action:  Landsberg,  p.  92  et  seq. 
(bibl.,  p.  97);  Stobbe,  §  80;  Kraut,  "Grundr.,"  5th  ed.,  §  74;  Heuslcr,  §  87; 
Fertile,  §  137;  Vangerow,  I,  302.  The  Gloss,  on  "L."  3,  Dig., 41,  3,  puts 
the  expression  "  dominium  utile  "  in  the  mouth  of  Bulgarus,  "  Gout,  de  Milan  " 
(1216),  24,  30. 

^  Cf.  already  Bracton,  fo.  46b,  fo.  58:  "Capitalis  dominus"  and  "verus 
dominus."  Chaisemartin,  p.  151.  —  If  one  wishes  to  get  an  idea  of  the  evo- 
lution which  took  place  one  has  only  to  compare  these  citations  with  the  "L. 
Feud.,"  2,  23:  "proprietas  penes  dantem,  usufructus  ad  accipientcm";  1,  8, 
2:  "proprietas"  and  "possessio."  —  To  which  of  these  two  did  the  issues 
belong?  "Gl."  on  "L."  1,  c,  10,  15.  Alluvium,  islands,  "L.  Feud.,"  1,  4, 
6;  "Aoste,"  2,  11,  128. 

^  Acquirement  of  the  Issues.  The  maxim,  "he  who  sows  reaps"  was 
already  to  be  found  in  the  old  law.  Thcsrefore  the  man  who  docs  not  own  a 
piece  of  land,  but  who  has  cultivated  it,  has  a  right  to  the  issues  which  it 
produces.  With  the  exception  of  certain  special  applications  ("Sachsonsp.," 
2,  58,  2;  3,  76,  3)  of  this  principle  let  us  call  to  mind  the  acquirement  of  the 
issues  b}-^  the  possessor  in  good  faith:  cj.  Bcnumanoir,  20;  32,  30,  "Heclaim- 
ing"  gcne^all}^  The  issues  were  considered  as  being  acquired  by  the  mere 
fact  that  work  had  been  done:  Ileusler,  II,  p.  195;  Heiinbach,  "L.  d.  Frucht," 

309 


§  252]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

seigniorial  rights,  or,  in  their  stead,  pohce  rules  which  were  ves- 
tiges of  joint  ownership  rights,  without  taking  into  account  the 
rights  of  the  family.^  The  Rural  Code  of  1791  ^  made  an  innova- 
tion by  saying  that  each  owner  was  free  to  gather  his  harvest  by 
any  means  and  at  any  time  he  pleased;  it  thereby  did  away  with 
the  fixing  of  the  day  of  mowing  or  harvesting  or  gathering  the 
vintage,  which  allowed  the  lord  to  collect  without  difficulty  rights 
such  as  that  to  a  portion  of  the  produce,  but  which  right  gave 
rise  to  abuses  because  the  gathering  of  the  harvest  might  be  post- 
poned in  an  arbitrary  manner  to  the  great  detriment  of  the  farmer. 

§  253.  Freedom  to  Enclose  one's  land,  which  was  frequently 
impeded  by  the  rights  of  commons  and  common  of  pasture,  was 
proclaimed  in  1791;  the  owner  who  made  use  of  this  power  lost 
his  right  to  common  of  pasture  in  proportion  to  the  amount  of 
land  which  he  enclosed.^  With  the  other  feudal  rights  was  abol- 
ished the  seigniorial  right  of  hunting,  which  even  allowed  the 
lord  to  go  upon  enclosed  lands.^ 

§  254.  The  Same.  —  Enclosure  assumes,  ordinarily,  a  marking 
of  boundaries,*^  which  is  carried  out  either  by  a  resort  to  the  courts 
or  by  friendly  agreement.®  Each  neighbor  can  compel  the  other 
to  contribute;  the  marking  of  boundaries  is  done  at  the  expense 
of  all ;  ^  the  boundary  marks  are  ^  sometimes  trees,  such  as  quince 

1843;  Rossi,  "Dir.  d.  Poss.  s.  Frutti,"  1883.  In  this  is  found  the  protection 
of  the  EngUsh  holder  at  mil.  As  to  the  distinction  made  by  the  commentators 
between  the  "usufructus  formalis"  and  "causaUs,"  cf.  Landsberg,  p.  94. 
Rights  of  the  owner  of  a  piece  of  land  to  the  fruit  which  has  fallen  upon  this 
land  from  a  tree  belonging  to  his  neighbor  (Kraut,  "Grundr.,"  5th  ed.,  §  77), 
with  branches  overhanging  his  land:  Chaisemartin,  p.  166;  A.-B.  Schmidt, 
"Recht  d.  Ueberhangs  u.  Uberfalls"  ("Unters."  by  Gierke);  Fournel,  "  Voisin- 
age,"  see  "  Arbres"  (4th  ed.);  Masuer,  X,  6  (keeping  by  the  possessor  in  good 
faith  before  the  "Ord.  de  Moulins,"  2). 

1  Fertile,  §  141  and  §  145;  Stobbe,  §  83  et  seq. 

2  Dec,  Sept.  28  and  Oct.  6,  1791.  Many  of  these  provisions  were  found 
to  be  in  opposition  to  the  Civil  Code,  and  a  draft  of  a  Rural  Code  was  pre- 
pared in  1808  and  laid  aside  in  1814;  it  has  not  yet  been  entirely  finished. 

'  The  right  of  common,  already  abolished  in  some  provinces  under  the 
Old  Regime,  was  only  done  away  with  by  the  Law  of  July  9,  1889:  Viollet, 
p.  560.  As  to  the  connection  between  these  rights  and  the  system  of  culti- 
vation by  rotation  of  crops,  cf.  Haussen,  "Z.  f.  ges.  Staatsw.,"  1865-68,  1876 
("Z.  Gesch.  d.  Feldsyst.  in  D.");  Heusler,  §  88. 

*  Prohibition  of  making  enclosures  within  the  territory  of  the  "plaisirs" 
or  lands  reserved  for  the  king's  hunting. 

5  "L.  Alam.,"  87;  "Bai  "  12,  8;  Loysel,  255,  290;  Fournel,  "Voisinage," 
see  "Bornes,"  "Clotures  ;  Ragueau,  see  "Bornes,"  " Cerquemanage " ; 
Ferriere,  see  "Action  en  Bomage." 

6  Beaumanoir,  30,  27,  28;  "Et.  de  St.  Louis,"  I,  138;  Boutaric,  p.  211, 
268,  366,  775. 

'  Pothier,  IV,  328,  sees  therein  a  quasi  contract  like  joint  possession. 
8  Dm  Cange,  see  "Cruces,"  " Terminales " ;  "Liber  Termin."  (fourteenth 
century);  de  Ribbe,  "Soc.  Proven?., "  p.  185. 

310 


Topic  3]  OWNERSHIP   OF  L.^^D  [§  256 

trees,  sometimes,  and  more  often,  unhewn  stones  near  which  there 
are  placed  fragments  of  a  tile  {guarantors  or  witnesses  attest  that 
the  stone  is  not  placed  there  by  chance),  or  else  broken  glass 
and  other  indestructible  objects.^ 

§  255.  Limited  Ownership.  —  Limitations  based  on  agreement 
which  affected  the  rights  of  the  owner  had  in  them  nothing  con- 
trary to  the  spirit  of  a  legislation  which  carried  with  it  so  many 
restrictions.  Also,  it  is  not  a  rare  thing  to  find  in  conveyances, 
sales,  gifts,  or  wills,  clauses  which  only  give  a  conditional  or  part 
ownership  to  the  grantee:  the  land  cannot  be  alienated  by  him;  it 
is  stipulated  that  it  shall  return  to  the  former  owner  or  his  heirs 
under  certain  conditions,  or  the  grant  may  be  cancelled  by  the 
effect  of  an  accidental  circumstance  or  the  will  of  the  parties. 
The  establishment  of  appanages  may  be  cited  as  an  example;  the 
possessions  of  the  prince  who  has  had  the  appanage  granted  to 
him  return  to  the  crown  if  he  dies  without  heirs  of  his  body.  The 
English  law,  with  its  theory  of  the  "forma  doni,"^  its  Statute  "De 
Donis  Conditionalibus  "  in  1285,  increased  the  number  of  these 
restrictions  (reversion,  remainder,  etc.).^  Thus  it  had  departed 
from  the  normal  type  of  Roman  ownership,  unlimited  "domin- 
ium." In  France,  jurisprudence,  on  the  other  hand,  seems  to  have 
tended  to  approach  this  type  by  decreasing  the  number  of  these 
restrictive  clauses,*  for  reasons  of  public  expediency.^ 

§  256.  Joint  Ownership  with  Joint  Possession  ^  is  frequently 
met  w^ith  in  the  old  law;  ^  the  most  common  case  is  that  of  party 

1  As  to  "agrimensores,"  cf.  Giraud,  "Hist,  du  Dr.  Fr.,"  I,  256;  Tissot, 
"These,"  1879;  Girard,  "Dr.  Rom.,"  p.  625;  Brugi,  "Agrimens,"  1897; 
Glasson,  "Gr.  Encycl.,"  see  "Bornage";  Denisart,  see  "Arpenteurs." 

2  Bracton,  f.  17b.  Cf.  the  sneer,  "agreements  overcome  the  law,"  Beau- 
manoir,  34,  2;  P.  de  Fontaines,  15,  6;  Loysel,  3,  1,  1.  But  as  to  "donationes 
post  obitum"  during  the  Frankish  period  cf.  Hiibner,"  Vnters."  by  Gierke, 
vol.  26. 

^  "Reverti,"  "redire,"  "remanere":  expressions  which  are  found  in  old 
deeds.  For  example,  the  will  of  Raymond  de  Toulouse  in  960  {D.  Vaissette, 
V,  241),  etc.     See  Pollock  and  Maitland,  II,  p.  14  et  scq.;  Blackstone,  II,  10. 

*  Masuer,  XI,  57,  lays  down  the  principle  that  ownership  may  be  trans- 
ferred after  a  term  or  upon  condition  (contrary  to  the  Roman  law).  Sub- 
stitution, revocation  of  gifts. 

*  The  English  jurisconsult  Coke  complains  of  the  disadvantages  which 
conditional  ownership  presents. 

8  Example  of  joint  ownership  without  joint  possession  in  the  lease  for  pos- 
session at  will,  the  lessee  or  tenant  being  owner  of  edifices  and  superfices 
(buildings  and  growing  crops,  works  of  improvement  such  as  ditches  and 
banks,  etc.),  excepting  that  the  lessor  has  a  right  to  pay  him  back  their  value 
when  dismissing  him,  and  excepting  that  the  tenant  has  a  right  to  give  up  the 
lease  ("exponse,"  that  is  to  say,  giving  ui)  of  possession),  cf.  the  Law  of  Feb.  8, 
1897.  —  Houses:  joint  ownership  by  floors:  Huber,  IV,  695. 

7  Planiol,  "Traitc  de  Dr.  Civ.,"  I,  439,  cites  the  Law  of  Aug.  28,  1792, 

311 


§  256]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

ownership  of  walls  and  fences.^  The  Roman  law  knew  nothing 
of  the  party  wall;  it  was  customary  to  isolate  houses  from  one 
another;  they  constituted  islands,  as  is  still  said  in  the  South.  In 
countries  of  Customary  law,  on  the  contrary,  the  opposite  custom 
became  established,  at  least,  from  the  early  part  of  the  feudal 
period,  and  the  social  and  economic  conditions  brought  about  a 
consideration  of  the  party  wall  as  collective  property.^ 

§  257.  The  Community^  was  frequent  in  the  Middle  Ages.  Does 
it  correspond  to  joint  possession  ("communio")  as  understood 
by  the  Romans,  or  must  it  be  classified  among  Associations? 
{cf.  Roman  "  universitas,"  "  Genossenschaf t "  of  the  German 
law).  The  latter  will  be  discussed  when  we  come  to  deal  with 
legal  persons.  As  we  look  at  it,  this  joint  possession  consti- 
tutes a  sort  of  transition  between  these  two  legal  types. 
The  "Genossenschaft,"  modeled,  as  it  seems,  after  the  family,  is, 
like  the  latter,  a  legal  person;  it  loses  its  cohesion  and  lessens 
by  degrees  under  the  form  of  the  community  or  "  Gemeinschaft 
zu  gesammter  Hand";  finally,  in  the  last  phase,  it  is  reduced  to 
the  "  communio,"  or  joint  possession,  in  order  to  allow  more  scope 
to  the  independence  of  its  members;  joint  possession  itself  only 
appears  as  a  provisional  state,  from  which  society  as  well  as  the  in- 
dividual has  every  interest  in  emerging.^ 

The  bond  which  unites  the  members  of  a  community  is  closer 
than  that  which  exists  between  the  ordinary  joint  owners.    Also, 

Art.  10,  which  changes  into  joint  ownership  the  right  of  pasturage  of  the  in- 
habitants of  the  different  departments  in  Brittany;  useless  and  unoccupied 
lands  have  become  jointly  possessed  by  all  those  who  were  then  in  possession 
of  the  right  of  common. 

1  "Mitoyen,"  "moitoien,"  same  source  as  "moitie";  cf.  "metairie," 
"metayer,"  Godefroy,  see  "Diet.,"  Loysel,  283  et  seq.;  Huber,  IV,  697.  As  to 
the  relations  of  neighbors  in  general,  cf.  ibid.,  p.  728  et  seq.;  Chaisemartin, 
p.  163;  Loysel,  loc.  cit.;  Fournel,  "Tr.  du  Voisinage,"  4th  ed.,  1834;  Beau- 
manoir,  24,  22. 

2  "Paris,"  195,  214;  Pothier,  "Comm.,"  nos.  199-229. 

3  "Gesamteigenthum,"  "condominium  in  solidum,"  as  contrasted  with 
"Miteigenthum,"  joint  possession.  First  mention  of  it  in  Justus  Veraciiis, 
"Libellus  Consuet.  Bamberg.,"  1681  (cited  by  Kraut,  "Grundr.,"  p.  101). 
Controversy  as  to  this  form  of  ownership:  Duncker,  "Gesammt.,"  1843; 
Stobbe,^Sl;  "Z.  R.  G.,"  IV,  218;  Heusler,  §  50;  Gierke,  "Deutsches  Privatr.," 
§  80;  Huber,  698;  Fertile,  §  137.  Cf.  in  English  law  joint  tenancy,  tenancy 
in  common,  Blackstone,  II,  12;  Pollock  and  Maitland,  II,  p.  20.  —  The  expres- 
sion "communis  manus"  is  to  be  accounted  for  by  the  necessity  under  which 
the  members  of  the  community  found  themselves  of  co-operating  in  acts 
which  affected  the  thing  owned  in  common;  for  example,  in  order  to  render 
homage  to  the  lord  for  a  fief  held  from  him,  they  all  put  their  hands  together 
into  that  of  the  lord.  —  As  to  cases  of  community,  cf.  Heusler,  §  52;  Wip- 
■permann,  "Kl.  Schr.  Ueb.  Ganerbschaften,"  1873. 

*  Chaisemartin,  p.  566;  Brillon,  see  "Commune";  FrSminville,  "Com- 
munaut6  d'Habitants,"  I,  3  (consorts);  See,  "Classes  Rur.,"  p.  490. 

312 


Topic  S]  OWNERSHIP   OF   LAND  [§  257 

no  member  of  the  community  can  dispose  of  his  share  in  the 
community  without  the  other  members  being  wilhng.  All  the 
more  should  they  all  co-operate  in  acts  of  disposal  bearing  on 
the  joint  possession.  The  administration  is  confided  by  force  of 
circumstances  to  one  of  them,  to  the  one  whom  custom  desig- 
nates, for  example,  the  elder  brother,  in  communities  whose  mem- 
bers are  brothers.  Each  one  of  the  members  of  the  community 
participates  according  to  his  needs,  and  according  to  the  number 
of  the  members  of  his  family,  in  the  products  of  the  common  land ; 
Hfe  in  a  community  carries  with  it  this  consequence,  which  still 
exists,  even  when  this  life  has  been  abandoned:  in  case  one  of  the 
members  of  a  community  dies  without  children,  the  others  get 
his  share  by  way  of  increase.  If  the  community  is  dissolved,  the 
partition  which  breaks  up  the  community  takes  place  according 
to  the  usage  of  the  local  custom.^ 

'  Curious  local  variations.  At  Salies-de-Bearn,  rights  of  the  members 
of  the  "Vesiau"  to  the  salt  spring;  regulations  (1525,  1.536),  in  order  to  do 
away  with  abuses  of  power  (widows  and  orphans  and  the  feeble  were  de- 
prived of  their  share  of  the  salt  water);  final  regulations  in  1587  (still  in 
force):  the  enjoyment  of  the  participants  is  fixed  by  tliis  regulation;  the 
fountain  is  an  inalienable  possession  and  the  participants  are  compelled  to  live 
in  joint  possession;  how  could  they  divide  it,  indeed?  It  is  never  possible 
to  know  exactly  who  are  the  participants;  those  who  cease  to  reside  at  Saliea 
lose  the  exercise  of  their  rights,  but  they  keep  the  right  to  enjoy  them;  at 
whatever  time  they  may  return  they  may  exercise  this  right  again.  If  one 
of  them  dies  without  an  heir  his  right  reverts  back  to  the  community.  There 
is  not  equality  between  descendants:  the  right  regarding  the  salt  water 
forms  a  special  kind  of  inheritance  which  has  its  own  rules;  preference  for 
the  eldest  or  head  of  the  house  (the  heads  of  the  house  were  the  first  to  have 
their  share  of  the  salt  water);  lessees  and  younger  sons  ("sterles")  come 
after  them;  preference  for  males,  for  the  younger  daughter  only  has  a  semi- 
right  as  well  as  the  widow;  privilege  of  married  sons  over  those  who  are  not 
married  (from  this  there  arise  fictitious  marriages,  young  people,  18  years 
old,  marry  nonogenarians,  to  whom  they  promise,  for  example,  20  francs  as  a 
marriage  portion  and  a  rent  of  2  sous'  worth  of  tobacco  a  day) ;  condition 
of  residence  (he  who  has  not  a  fire  lighted  at  Salies  and  does  not  keep  his 
family  there  has  no  right  to  the  salt  water).  It  was  thought  that  in  this 
there  was  an  ownership  by  the  commune  of  Salies,  but  this  is  not  so  at  all; 
the  inhabitants  of  Salies  have  not  all  a  right  to  the  fountain;  the  corporation 
of  those  having  this  right  is  distinguished  from  the  commune  ("  Arr.  du  Cons." 
of  the  king  of  Dec.  12,  1739);  the  latter  represents  the  multitude  of  near 
neighbors  and  strangers  who  have  come  to  join  themselves  to  the  former, 
but  who  have  not  succeeded  in  acquiring  a  part  in  this  jointly  owned  prop- 
erty: Lombard,  "La  Coutume  de  Salics-de-Hearn,"  "These,"  1900.  —  Cf. 
the  Swiss  "Allmends"  and  the  distinctions  between  citizens  and  inhabitants. 
—  In  the  Valley  of  Vicdessos  (Ariege)  the  ownership  of  the  iron  mines  of 
Ran(;i6  belonged  to  all  the  inhabitants  of  the  valley,  or,  at  least,  they  had  the 
right  to  extract  a  certain  quantity  of  mineral  every  day,  "Recueil  des  Titres, 
etc..  Concern,  les  Mines  de  Rancid,"  by  R.  Barbe,  Toulouse,  1865.  In  the 
North  of  France  under  the  name  of  "portions  mcnageres  "  and  "communalcs," 
the  heads  of  families  are  given  shares  in  the  use  of  the  marshes;  at  the  death 
of  one  of  them  his  share  returns  to  th(>  conununity,  which  confers  it  upon  tlio 
oldest  head  of  the  family  who  has  not  had  a  share  given  him.    ("L.  Pat."  of 

313 


§  258]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

§  258.  Incorporeal  Property.  —  Titles  of  nobility  and  patro- 
nymic names  are  connected  with  the  formation  of  the  family  and 
of  the  feudal  system.^  —  Literary,  artistic  and  industrial  property 
is  brought  under  the  form  of  a  monopoly  resulting  from  a  royal 
grant:  it  is  the  discovery  of  printing,  that  is  to  say,  the  ability  to 
reproduce  a  manuscript,  which  raised  the  question  of  the  rights 
of  an  author;  the  publisher  received  a  privilege  from  the  king  {let- 
ters from  the  Chancery  reproduced  at  the  head  or  the  end  of  the  old 
editions)  authorizing  him,  to  the  exclusion  of  all  others,  to  have  the 
book  printed  during  a  certain  time.  The  Constituent  Assembly 
made  a  right  of  that  which  up  to  that  time  had  been  only  a  privi- 
lege; the  Law  of  the  3d  of  January,  1791,  gave  dramatic  authors 
the  exclusive  right  of  reproducing  their  works  during  their  life, 
and  to  their  heirs  this  same  right  during  five  years  after  their 
death;  the  Law  of  July  19,  1793,  extended  this  right  of  the  heirs 
to  ten  years  and  generalized  the  provisions  of  the  preceding  law 
(literary  works,  musical  compositions,  pictures,  drawings).^ 

1777);  Passez,  "Les  Portions  M^nageres  et  Communales  en  France  et  k 
I'Etranger,"  1882.  As  to  Spain,  cf.  Wentworlh  Webster,  article  cited  in  "La 
Couvade,"  "R.  des  Pyrenees,"  1900. 

1  "R.  h.  Dr.,"  IX,  381;  Stobbe,  §  157-163. 

2  D.,  Feb.  5,  1810  (right  of  the  widow);  Law  of  July  14,  1866;  Delalande, 
"Et.  s.  la  Propr.  Litt.  et  Art.,"  1880. 


314 


Topic  4] 


POSSESSION 


[§259 


Topic  4    Possession 


§  259.  General  Remarks. 

§  260.  Canon  Law. 

§§  261,  262.  Origin  of  the  "  Remedium 
Spolii." 

§  263.  Franldsh  Period. 

§  264.  Feudal  Period. 

§  265.  The  Seisin. 

§  266.  The  Seisin  is  Acquired. 

§  267.  Seisin  under  Law. 

§  268.  Yearly  Possession. 

§  269.  Possessory  Actions.  Anglo- 
Norman  Law. 

§270.  Assize  of  "Mort  D'Ancestor" 
and  Writs  of  Entry. 


§271.  The  raising  of  the  Hue  and  Crv 
("Haro"). 

§  272.  Possessory  Actions  in  the 
French  Customary  Law. 

§  273.  Beaumanoir. 

I  274.  Fourteenth  and  Fifteenth  Cen- 
turies. 

§  275.  The  Complaint  in  Cases  of 
Seisin  and  Trespass. 

§§  276,  277.  The  Procedure  of  the 
Complaint. 

§  278.  Action  of  Simple  Seisin. 

§  279.  The  Declaration  of  Recent 
Work. 


§  259.  General  Remarks.^  —  The  terms  which  serve  to  dis- 
tinguish possession  in  the  old  French  and  German  law  are  "ves- 
titura,"  "saisine,"  "gewere."^    They  originally  signified  putting 

1  There  are  most  contradictory  theories  on  this  matter,  a  fact  which  is  to 
be  accounted  for  by  the  lack  of  precision  in  the  texts  and  the  mingling  of 
Roman,  Germanic,  etc.,  elements.  For  some  the  idea  of  ownership  is  un- 
known to  the  old  Germanic  law,  where  possession  must  have  been  everything; 
for  others  it  is  just  the  reverse.  For  lack  of  space  we  must  give  up  the  idea 
of  setting  forth  a  critical  exposition  of  the  principal  ideas  that  have  come  to 
light.  Two  especially  have  been  very  popular,  —  that  of  Albrecht  (revived 
by  Klimrath)  and  the  more  recent  one  whose  principal  supporters  are  Laband 
and  Heusler:  Fertile,  §  134  ad  finem  (sketch).  Cf.  writings  of  Huber  and 
Champeaux.  —  Albrecht  defines  the  "Gewere"  as  the  right  to  a  real  action,  a 
right  which  on  principle  belongs  to  the  man  in  possession.  Without  posses- 
sion, no  real  action.  The  "Gewere"  depends  at  one  and  the  same  time  upon 
possession  and  upon  ownership,  and  then  becomes  the  common  note  of  the  law 
on  this  matter.  Gerber  ("Deutsch.  Privatr.,"  §  72)  and  Schulte  adhere  more 
or  less  closely  to  this  notion,  which  prevailed  for  a  long  time  in  science,  and 
which  in  our  opinion  caused  a  great  deal  of  confusion  therein.  —  Laband  and 
Heusler  are,  on  the  other  hand,  partisans  of  the  more  correct  idea  that  the 
German  "Gewere"  and  French  seisin  are  nothing  else  but  possession,  although 
there  are  important  differences  between  them  and  Roman  possession.  As  far 
as  we  are  concerned,  it  seems  to  us  that  these  differences,  which  are  of  second- 
ary importance,  have  often  been  exaggerated;  to  look  upon  it  as  a  whole, 
the  evolution  of  the  possessory  action  in  our  old  law  seems  to  us  like  a  rebe- 
ginning  of  the  history  of  possession  at  Rome.  —  Cf.  the  synonymj^  of  the 
words  "possession"  and  "saisine,"  for  example,  "T.  A.  C,  Norm.,"  74;  83,  7, 
etc.  —  Current  expression:  "etre  en  possession  et  saisine." 

2  "Vestitura,"  "investitura,"  "vestire."  CJ.  "manus  vestitia"  (glove 
and  its  symbolic  use) :  "Bai.,"  17,  2;  "Capitul.,"  see  Table;  "Cap.,"  873,  c.  8: 
things  belonging  to  the  Church,  to  the  Treasurer,  "in  vestitura  eeclesia;," 
"fisci."  Vesting  and  divesting,  pout,  "Transfer  of  Ownershij)."  During  the 
feudal  period  investiture  only  means  transfer  of  the  fief  to  the  vassal. — 
"Saisina,"  "sacire,"  "sasjan  (Goth.).  CJ.  "setzen,"  "Besitz,"  possession: 
Diez,  see  "Sagire";  Brunner,  "Rom.  u.  G.  Hrk.,"  p.  242;  Warnkoen.,  II,  295; 
La  Ferriere,  VI,  386.  Italian  sources,  Pcrtile,  IV,  171.  "Saisimentum," 
"saisie."     Beaumanoir  uses  seisin  in  the  sense  of  distraint.     Post,  "Disseisin 

315 


§  259]  OWNERSHIP   AND    REAL    RIGHTS  [Chap.  II 

into  possession,  physical  delivery  (and  later  symbolical  delivery, 
investiture).^  They  have  been  extended  to  mean  the  situation  of 
the  man  who  has  received  a  thing,  the  fact  of  having  a  thing  at 
one's  disposal,  a  possession  in  general,^  The  owner,  the  possessor 
on  his  own  account,  but  without  the  right  of  ownership  (like  the 
vendee  "a  non  domino"),  the  simple  withholder  " alieno  nomine " 
(like  a  tenant,  or  a  depositary),  these  are  persons  whose  rights 
are  very  diverse,  and  who  can  all  have  the  thing  at  their  disposal. 
These  persons  always  have  some  advantages  of  position;  one  is 
that  they  are  not  liable  to  be  deprived  without  a  judgment,  or,  at 
least,  due  form  of  law.^  But  sometimes  they  enjoy  other  advan- 
tages: (a)  a  better  position  in  a  suit  regarding  the  ownership,^  pre- 
sumption of  ownership;  ^  (b)  special  actions  or  possessory  actions, 
as  compared  with  the  action  for  real  property ;  ^  (c)  a  progression 
towards  the  acquisition  of  the  ownership.  How  does  it  happen 
that  such  effects  are  attributed  to  seisin,  that  is  to  say,  to  a  mere 
fact?  What  is  the  basis  of  the  protection  afforded  by  possession, 
according  to  the  expression  of  Ihering?  This  question  has  been 
answered  by  various  theories,  each  of  which  contains  a  part  of  the 
truth.  1st.  To  disturb  the  possessor  is  an  attack  on  public  order, 
an  offense  which  public  authority  was  compelled  to  restrain  as 
soon  as  it  was  strong  enough  to  prevent  individuals  from  taking 

Seisin."  The  copyholder  is  given  seisin  and  pays  for  it  a  toll  to  the  lord, 
also  called  "saisine":  Beaumanoir,  27,  6;  see  Ragueau.  —  "Gewere,"  from 
"vairan"  (Goth.),  to  guarantee  ("warantus"),  or  from  "varjan,"  "vestire," 
"prohibere."  —  The  terms  "possidere,"  "possessio,"  "tenere"  did  not  cease 
to  be  made  use  of.  They  ended  by  prevailing  in  Italy  and  Spain,  where  they 
say  "tenute,"  "tenencia":  "Siete  Part.,"  3,  2,  30,  in  opposition  to  "sefiorio 
dominium."  Example  in  Fertile,  loc.  cit.  —  "Possessio"  in  the  sense  of  land 
in  the  Capitularies:  807,  c.  2;  "L.  Longob.  Car.  M.,"  27.  Formulae:  "quicquid 
tenere  et  possidere  videor";  J.  d'Ibelin,  c.  152:  seisin  or  tenure. 

1  This  is  the  normal  meaning:  Du  Cange,  see  Sesire;  Dronke,  "Tradit. 
Fuldenses,"  I,  91,  92;  of.  "Cap.,"  819,  6;  Sickel,  "Reg.  Karol.,"  no.  335; 
Magna  Charta,  1215,  c.  9. 

*  Beaumanoir,  II,  p.  423,  ed.  Beugnot;  Thevenin,  "Textes,"  no.  125  (cf. 
Index):  "vestiti  legaliter"  ("quieto  ordine,"  without  being  disturbed); 
"L.  Feud.,"  2,  2. 

3  "Liut.,"  148;  "Bai.,"  16,  1;  "Burg.,"  19,  2;  "Rib.,"  59,  8;  "Cap.," 
819,  9;  "Cap.  Pip.,"  789,  14  (fine);  Wido,  5  (loss  of  the  right);  Ber- 
taldo,  "Splendor  Consuet.  Venet.,"  88.  Cf.  Commentary  on  "Roth.," 
348. 

*  J.  d'Ibelin,  c.  64  ("Ass.  de  J^rus.,"  I,  p.  106).  As  to  the  joys  of  posses- 
sion ("beati  possidentes")  and  the  enumerations  of  the  old  authors,  cf. 
Savigny,  op.  cit. 

5  ""Bai.,"  16,  1;  "Burg.,"  19,  2;  "Liut.,"  148;  "L.  Feud.,"  1,  4,  1;  "Stat. 
Milan,"  1396,  10;  Voghera  (twelfth  century),  91;  /.  d'Ibelin,  c.  67. 

®  In  Italy  the  distinction  between  the  possessory  action  and  the  action  for 
real  property  appeared  at  a  very  early  time:  "Form.  Roth.,"  228;  "  Ariprand 
and  Albert,"  II,  52.    Customs  of  the  twelfth  and  thirteenth  centuries. 

316 


Tone  4]  POSSESSION  [§  2G0 

justice  into  their  own  hands.^  2d.  Possession  is  an  advanced  stage 
of  ownership;  if  it  were  not  protected,  it  would  be  difficult  to  main- 
tain ownership.  The  first  of  these  theories  seems  to  correspond  with 
the  origin  of  the  protection  of  possession;  the  second  one  assumes 
it  to  have  arrived  at  a  more  advanced  stage  of  its  development. 
At  least,  this  rough  outline  is  suggested  by  the  study  of  the  history 
of  possessory  actions  in  the  old  French  law.  Created  with  the 
object  of  repression,  they  were  not  long  in  taking  on  a  new  char- 
acter, and  in  becoming  transformed  into  real  actions,  substitutes 
for  the  petitory  actions.  It  is  at  this  time  especially  that  the 
possessory  action  had  a  vital  importance,  not  only  in  private 
law,  but  even  in  public  law :  ^  "  possession  is  worth  a  great  deal  in 
France,"  says  Loysel,  "at  least,  as  long  as  there  is  a  right  of  owner- 
ship mingled  with  it"  (740). 

§  260.  Canon  Law.^  —  As  far  as  possession  is  concerned,  the 
canon  legislation  departed  from  the  Roman  law  on  two  principal 
points:  in  that  which  concerns  quasi-possession,  and  in  that 
which  concerns  prevention  of  spoliation.  In  the  hands  of  the 
canonists  quasi-possession,  which  was  allowed  with  fear  at  Rome 
for  a  few  rights,  is  extended  almost  indefinitely;  every  spiritual 
and  temporal  right  relative  to  persons  or  property  is  susceptible 
of  possession;  ^  by  this  means  the  jurisdiction  of  the  classical 
tribunals  is  increased  and  the  absolute  moral  authority  of  the 
Church  is  declared.  From  the  time  of  the  Lower  Empire  special 
measures  have  to  be  taken  for  the  repression  of  violence;  the 
owner  who  by  force  takes  possession  of  his  property  which  is 
withheld  by  a  third  party,  and  thus  takes  justice  into  his 
own  hands,  is  compelled  to  restore  it;  he  loses  his  right  of  owner- 
ship by  way  of  penalty.^    Some  of  the  celebrated  interpreters  of 

'  Beaumanoir  takes  up  the  subject  of  novel  disseisin  after  having  dealt 
with  misdemeanors  and  larcenies,  after  which  he  passes  on  to  cheating  (c.  32). 
Blackstone  also  places  dispossession  arr.ong  torts.  Loysel,  753.  Davot  tells  us 
that  in  his  time  (1677-1743)  the  fine  was  not  made  use  of;  they  were  satisfied 
with  condemning  a  man  to  pay  damages. 

2  For  example,  competence  of  the  Courts  of  the  Church. 

^  Manuals  of  the  canon  law.  On  the  doctrines  of  the  Romanists,  cf.  Du- 
qxtesne,  "These,"  1898,  p.  40;  Bruns,  "R.  d.  Bes.,"  p.  103  et  seq.  Notes  on  the 
"Siete  Part.,"  Table,  see  "Possessio"  (bibl.). 

*  Cf.  post,  "Plurality  of  Seisins."  Offices,  ecclesiastical  dignities,  tithes, 
etc.:  "Or.  Cout.,"  p.  237  (justice);  255  (incorporeal  things);  495  (franchises) 
et  seq.  —  Possession  of  status:  "Possessio,  Conjugis  ex  Causa  Matrimonii," 
Dig.  X,  13,  8  and  10;  Bruns,  "Besitz,"  p.  240;  Duncker,  "Quasi-Bcsitz,"  "Zfd. 
R.,"  2,  2,  28;  Rufini,  "Actio  Spolii,"  p.  253,  408.  —  Vain  protestations  of 
the  Romanists;  "Close"  on  "L.,"  9,  Dig.,  5,  3.    CJ.  Civil  Code,  1240. 

s  Law  of  Valentinian  III;  "Cod.  Th^;od.,"  9,  10,  3;  4,  20,  3;  "Cod.  Just.," 
"de  vi,"  8,  4,  7;  "L.  Rom.  Wisig.,"  p.  131,  ed.  Haenel;  Ruffuii,  "Actio  Spolii," 

317 


§  2G0]  OWNERSHIP    AND    REAL    RIGHTS  [Chap.  II 

the  Roman  law  have  even  thought  that  there  must  have  been 
created  an  action  "momentarice  possessionis "  ^  in  order  better  to 
assure  the  protection  of  possession.  The  disorders  for  which  a 
remedy  had  to  be  found  from  the  time  of  the  Lower  Empire  only 
increased  in  the  ^Middle  Ages,  and  the  Church  sought  to  fight 
against  them  by  the  "remedium  spolii,"  a  prototype  of  the  pos- 
sessory action  designed  by  the  secular  law  {recovery  of  possession). 
§  261.  Origin  of  the  "Remedium  Spolii."  — The  effects  of  this 
institution  could  be  summed  up  in  the  maxim  "spoliatus  ante 
omnia  restituendus."  ^  Originally  it  appeared  as  a  simple  incident 
to  criminal  procedure,  a  plea  in  bar:  the  bishop  who  was  de- 
prived of  his  see,  and  who  found  himself  under  the  weight  of  a 
criminal  accusation,  could  escape  from  any  judgment  before  being 
reinstated;  it  was  the  duty  of  the  judge  to  carry  out  the  reinstate- 
ment even  officially.^  Thus  the  "  exceptio  spolii "  was  found  to  be 
created;  at  least,  it  was  based  upon  this  and  rapidly  generalized 
and  applied  to  the  laity  as  well  as  the  clergy,  to  civil  proceedings 
as  well  as  criminal  procedings.^  From  a  simple  form  of  procedure 
relating  to  ecclesiastical  discipline  it  passed  to  the  rank  of  a  rem- 
edy at  common  law.  The  practice  of  the  tribunals  of  the  Church 
took  a  step  in  advance  ^  at  a  very  early  period ;  the  man  who  had 

p.  33  to  53  (and  on  the  Byzantine  law,  p.  75-112).  That  this  rule  was  not  for- 
gotten may  be  inferred  from  the  mention  of  it  contained  in  the  Epitomes  of 
the  "Breviary"  of  Alaric,  in  the  "Brachylogus,"  2,  11,  in  the  "Petrus,"  3, 

II.  —  The  Barbarian  law  was  limited  to  imposing  a  fine  upon  the  "invasor," 
which  does  not  seem  to  have  been  sufficient :  "  Liut.,"  148;  "  Bai.,"  16;  "Burg.," 
19;  "Cap.,"  819,  9;  789,  14;  Gloss,  on  "Roth.,"  348.  Cf.  "Const.  Sic,"  I, 
29  (Frederick  II).    Curious  question  in  the  "Liber  Consuetud.,"  of  Milan,  I,  6. 

1  Ruffini,  p.  53. 

2  "False  Decretals,"  "Epist.  Eusebii,"  2^,  §  12  (Hinschms,  p.  237).  Cf. 
Hinschius,  pp.  165,  214,  694,  731.  —  Reproduced  by  Gratian,  c.  1  to  4,  C, 

III,  qu.  1.  —  Sources:  (a)  "Epit.  Aegid.,  Paul,"  I,  7  (restitution  in  "integrum" 
for  fraud  or  mistake) ;  "  Concile  de  Lampsaque, ' '  364 ;  "  de  Rome, "  50 1 .  —  Later 
texts:  Dig.  X,  2,  13;  "in  VI,"  2,  5.  —  Commentators:  Tancrede,  "P.,"  2,  vol. 
9;  Hostiensis,  1,  2,  r.  "De  Causa  Possessionis  et  Proprietatis,  de  Restitutione 
Spoliatorum";  G.  Durand,  "Specul.,"  4,  2.  — Lancelot,  "Inst.,"  3,  10;  Pon- 
tanus,  "Tract.  III.  Jet.,"  XIV,  271;  Maassen,  "Jahrb.  d.  Gem.  R.,"  1859; 
Rosshirt,  "Gesch.  d.  R.  in  M.  A.,"  512;  Goecke,  "De  Exc.  Spolii,"  1858;  P. 
Fournicr,  "0fficialit6s,"  p.  164;  Ruffini,  "Actio  Spolii,"  p.  141  to  252  (details 
as  to  the  ecclesiastical  discipline  previous  to  the  ninth  century.  The  "Pseudo- 
Isidore,"  Gratian).    See  also  Savigmj,  §  48  et  seq. 

'  Ruffini  was  credited  with  bringing  out  this  peculiaritJ^  Cf.  "Concile  de 
Paris,"  of  615,  c.  10,  according  to  Bruns,  "Canones,"  II,  257. 

*  Regulation  by  the  Decretal  "Frequens,"  1245,  Dig.  X,  2,  5,  1:  in  criminal 
matters  the  defense  may  be  offered  in  opposition  to  everybody;  in  civil  matters 
only  to  the  despoiler. 

6  Ruffini  shows  that  the  legislation  of  the  Church  did  not  entirely  agree 
with  the  practice.  Gratian  did  not  admit  of  the  extension  which  was  given  by 
practice  to  the  c.  "  Redintegranda "  (for  example,  its  application  to  the  laity 
and  to  all  sorts  of  possessions).    The  popes  were  inclined  rather  to  follow  hi3 

318 


Topic  4]  POSSESSION  [§  2G2 

been  dispossessed  was  authorized  to  claim  restitution  by  means 
of  an  action  ("condictio  ex  canone  redintegranda  ") ;  ^  the  existence 
of  the  action  was  justified  by  the  same  motives  as  was  that  of 
the  plea;  the  official  intervention  of  the  tribunals  led  to  its  ad- 
mission and  the  Roman  procedure  of  possessory  prohibitions  did 
not  seem  to  differ  therefrom  to  an  appreciable  extent.^ 

§  262.  The  Same.  — The  "remedium"  which  was  finally  estab- 
lished consisted  of  two  methods:  the  action  and  the  plea  "spolii." 
Both,  as  their  essential  effect,  lead  to  the  re-establishment  of 
the  "statu  quo  ante";^  this  is  the  object  which  is  striven  for 
and  the  only  means  which  seems  natural  for  the  prevention  of 
disseisin,  for  pecuniary  penalties  which  were  decreed  by  the  bar- 
barian laws  did  not  suffice;  as  long  as  the  despoiler  kept  the  prop- 
erty which  he  had  taken  he  was  satisfied  and  had  no  regret  at 
having  infringed  the  laws;  by  dispossessing  him  in  his  turn,  every 
pretext  for  violence  was  removed.  Thenceforth  the  requisite 
conditions  for  the  exercise  of  the  "remedium"  were  very  exten- 
sive: (a)  the  disseisin  is  not  only  understood  to  apply  to  dis- 
possession by  force,  but  to  any  other  illegal  dispossession;  ^  (&) 

example  and  to  restrict  the  new  institution  which  a  more  profound  knowledge 
of  the  Roman  law  caused  them  to  look  upon  as  being  abusive.  Sec,  for  exam- 
ple, the  Decretal  "Sajpe  Contingit."  Nor  could  the  Romanists  favor  it  any 
more.  It  is  only  brought  up  once  in  the  writings  of  the  commentators  ("  Quajs- 
tiones"  by  Azon,  XI,  ed.  Landsberg).  Bartole  and  Balde  only  mention  the 
Roman  prohibitions.  We  find  it  dealt  with,  on  the  other  hand,  in  P.  de  Castro, 
"Consil.,"  Ill,  29;  Decius,  etc.  See  especially  Menochius,  "De  Recuper. 
Poss.  Remed.,"  XV  (restrictive  tendency);  Pontanus,  "Tract.  Univ.  Jur.," 
XIV,  f.  270  ("despolio,"  opposite  tendency);  P.  de  Ferariif:,  "Aurea  Prac- 
tica,"  1579;  Gui  Pape,  "In  Stat.  Delph.,  si  quis  per  Litteras." 

'  "Glose,"  on  the  Decree,  c.  3,  C,  III,  q.  2. — They  saw  in  the  "actio 
spolii"  or  "condictio  ex  can.  Redintegranda"  only  the  prohibition  "de  vi," 
and  it  was  all  the  more  willingly  admitted  as  they  could  obtain  support  from 
the  "Const,  de  Th^od.  et  Valent.,"  which  pronounced  the  forfeiture  of  the 
property  against  the  "invasor,"  upon  a  rescript  of  Hadrian  according  to  which 
the  question  of  violence  should  be  decided  before  everything  else:  "Cod. 
Theod.,"  9,  7,  2;  Guill.  Durand,  4,  2,  only  establishes  a  verbal  distinction  be- 
tween restitution  to  the  despoiled  and  the  prohibition  "de  vi."  Cf.  "Glose 
ad  Recup.,"  s.  I,  1,  D.,  "de  vi,';  43,  15. 

2  Cf.  the  "irepipiav"  of  the  Orientals:  Ruffini,  p.  332,  and  part  2,  c.  1. 

^  Dig.  X,  13,  11.  A  mere  Judgment  is  not  sufficient;  the  man  disseised  may 
demand  that  he  be  put  back  m  physical  possession  of  the  thing  which  has  been 
taken  away  from  him. 

^  Case  in  which  the  prohibition  "de  vi"  was  refused,  but  with  regard  to  which 
Cujas  thought  ("Obs.,"  I,  1,  c.  20  and  I,  19,  c.  16)  that  under  the  Lower  Empire 
a  general  prohibition  called  "momentarioe  possessionis "  had  been  provided: 
"Cod.  Th6od.,"  4,  20,  6;  2,  1,  8;  "Cod.  Just.,"  3,  16,  1;  3,  6,  3;  8,  4,  8.  To  the 
same  effect //lenn^,  "FondementdelaProt.  Poss.,"  p  112.  ^o;ircar<,"  Thdse," 
p.  138,  critici.scs  this  doctrine.  Ruffini,  p.  53.  —  The  prohibition  "de  vi" 
differed  from  the  "remedium"  not  only  in  that  it  assumed  a  dispossession  by 
force,  but  also  in  that  it  was  not  granted  in  the  case  of  movables  {cf.  D.,  "de 
vi,"  43,  16,  14,  a  text  which  deceived  the  canonists),  that  it  was  only  given 

319 


§  262]  OWNERSHIP    AND    REAL   RIGHTS  [Chap.  II 

the  "remedium"  belongs  to  every  possessor,  whether  his  posses- 
sion be  lawful  or  unlawful,  yearly  or  not,  even  to  the  "prsedo," 
even  to  the  one  who  merely  withholds;  (c)  it  is  granted  for  every 
species  of  thing,  corporeal  or  incorporeal,  movable  or  immovable; 

(d)  no  prescription  can  be  pleaded  against  the  man  disseised;  ^ 

(e)  nor  can  the  right  of  ownership  be  pleaded  against  him,  nor  can 
he  be  reproached  with  having  himself  committed  a  disseisin;  (/) 
the  "remedium"  is  given  not  only  against  the  perpetrator  of  the 
disseisin,  but  even  against  his  assigns  and  against  the  purchaser 
in  good  faith." 

These  rules  are  undoubtedly  justified  by  the  condition  of  affairs 
in  the  Middle  Ages;  but  as  soon  as  the  public  peace  was  better 
assured  they  were  quickly  restrained,  and  even  abandoned.  Thus 
the  man  disseised  was  not  given  restitution  when  he  had  been 
guilty  of  a  serious  crime  ;^  the  plea  of  "spolii"  was  forbidden  to 
be  interposed  in  civil  matters  when  the  disseisin  was  due  to 
some  other  than  the  man  making  the  claim;  as  far  as  advantages 
were  concerned,  the  "possessio  colorata"  (by  title)  was  demanded; 
in  criminal  matters  the  plea  had  to  be  proved  within  fifteen 
days  under  penalty  of  forfeiture;  ^  secular  legislation  only  per- 
mitted it  to  be  taken  advantage  of  within  a  short  period;  ^  and, 
finally,  by  virtue  of  a  celebrated  Decretal  of  Innocent  III,  the 
Decretal  "Ssepe  contingit,"  1215,  the  "spolii"  action  could  no 
longer  be  granted  against  third  parties  who  had  acted  in  good 
faith.®  It  is  true  that  practice  did  not  accommodate  itself  to  all 
these  changes,  and  that  it  clung  by  preference  to  the  old  rules.^ 
But,  while  the  doctrine  underwent  these  modifications,  the  ec- 
clesiastical judges  were  deprived  of  the  cognizance  of  questions 

against  the  one  who  carried  out  the  despoiling,  that  it  was  not  accorded  to  the 
possessor  properly  so  called,  and,  finally,  that  proceedings  could  only  be  begun 
for  obtaining  it  within  a  short  delay. 

^  Or,  at  least,  no  prescription  of  less  than  thirty  years. 

^  "Glose,"  on  the  Decree:  "Quilibet  possidens  possit  conveniri,"  "Const. 
Sic,"  I,  26:  "Sive  sciens,  sive  ignorans  per  quascumque  manus  possessio  am- 
bulaverit." 

*  Guill.  Durand  points  out  twenty-three  cases  in  which,  as  an  exception, 
the  person  despoiled  does  not  obtain  restitution  {Durand  de  Maillane).  Cf. 
P.  de  Fontaines,  21,  50. 

*  "Sexte,"  2,  5,  1. 

^  Novel  disseisin:  40  days  in  Palestine;  J.  d'Ibelin,  I,  34;  a  delay  which 
varied  in  England,  Glanville,  13,  32;  one  year  and  one  day  in  France  and  in 
Sicily;  two  months  in  the  latter  country  since  the  time  of  Alphonso  I. 

8  Dig.  X,  "de  rest,  spol.,"  18.  As  to  the  interpretations  of  this  text, 
c/.  Ruffini,  p.  335;  Ihering,  "Besitzville,"  p.  459.  — See  "Siete  Part.,"  3,  2, 
30. 

'  Ruffini,  loc.  cit. 

320 


Topic  4]  POSSESSION  [§  263 

relating  to  possession.    Cognizance  was  taken  by  the  tribunals  of 
the  king,^  or  even  the  municipal  justices.^ 

§  2G3.  Frankish  Period.^  —  Did  the  old  Germanic  law  recognize 
the  distinction  between  possession  and  ownership?  If  it  sprung, 
as  it  seems  to  have  done,  from  a  system  of  collective  ownership 
of  the  ground,  the  temporary  right  which  was  given  the  family 
rather  than  the  individual  over  the  share  which  had  been  granted 
him,  resembled  possession  more  than  ownership;  but,  while 
abandoning  this  primitive  system,  they  passed  to  a  true  owner- 
ship, beside  which  the  fact  of  possession  had  no  very  great  im- 
portance in  the  law.  So  long  as  possessory  actions  were  not  known, 
—  and  they  do  not  appear  in  the  Frankish  law,*  —  the  possessor 
had  no  other  advantage  excepting  that  he  played  the  part  of  de- 
fendant in  the  contest  over  the  ownership;  he  then  prevailed  over 
his  adversary,  not  exactly  because  of  his  possession,  but  because 
of  the  special  principles  of  the  theory  of  proofs;  it  was  sufficient 
in  order  to  enable  him  to  win  his  suit  that  he  should  swear  that  he 
justly  detained.^  In  order  to  ascertain  who  was  the  possessor, 
recourse  was  undoubtedly  had  first  of  all  to  the  simple  fact  of  the 
detention  without  disputing  it.^  But  it  seems  certain  that  proced- 
ure became  complicated  upon  this  point;  as  in  the  old  Roman  law, 
there  took  place,  as  an  incident  in  litigation  concerning  owner- 
ship, a  preliminary  discussion  on  the  question  of  possession  to 
determine  the  status  of  the  parties.^  The  documents  are  not  suf- 
ficiently precise  to  admit  of  our  knowing  how  the  question  was 
settled  as  to  detail.^  It  seems  that  possession,  in  order  to  give  a 
man  the  status  of  defendant,  could  not  be  violent  ^  or  uncertain;^" 

1  Bull  of  Martin  V,  1428;  Loysel,  752. 

2  "Cout.  de  Toulouse,"  1,  25:  the  complainant  may  overthrow  the  "exceptio 
spoUi,"  which  is  pleaded  against  him  by  a  mere  denial,  by  sajang  that  he  has 
not  despoiled  the  defendant. 

'  See  especially  Heusler,  "Gewere,"  pp.  1  to  106. 

*  Hiibnerj  "Immobiliarprocess,"  p.  51.  If  one  admits  that  the  early  law 
only  recognized  actions  "ex  delicto,"  the  distinction  between  the  action  for 
real  property  and  the  action  for  possession  could  not  be  conceived  of.  It 
only  became  possible  to  make  this  distinction  when  procedure  lost  its  penal 

Oil  1T**lPt  01* 

6  "Inst.  Just.,"  4,  15,  4;  "Bai.,"  16;  Rozihre,  no.  487,  488;  Huher,  IV,  232, 
n.  44;  "L.  Feud.,"  4,  1.    Cf.  Champeaux,  p.  334. 

*  The  imputation  "malo  ordine  possides"  implies  a  possession  based  upon 
a  tort:  "Form.  Sen.,"  7,  etc. 

^  "Capit.,"  819,  c.  4;  Muratori,  "Ant.  Ital.,"  I,  973;  D.  Vaissette,  I,  no.  5,  a. 
783;  Pollock  and  Maitland,  II,  47;  cf.  Champeaux,  p.  339. 

*  The  year's  delay  seems  to  have  been  required:  "Cap.  Langob.,"  825, 
c.  11;  Pertz,  I,  252.    Cf.,  however,  Glasson,  op.  cit. 

»  "Cap.,"  820,  1. 
"  That  is  to  say,  "alieno  nomine." 

'  321 


§  263]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

it  could  be  held  by  various  titles,  for  example,  as  owner,  or  simply 
as  usufructuary;  ^  it  resulted  from  occupation,  from  delivery,  or 
from  inheritance.?  The  Barbarian  law  here  presents,  as  it  were, 
the  outline  of  the  regulation  admitted  by  later  legislation. 

§  264.  Feudal  Period.^  —  From  the  tenth  to  the  twelfth  cen- 
turies no  important  changes  seem  to  have  taken  place.  The 
French  seisin,  the  German  "Gewere,"  give,  as  they  did  in  the 
past,  to  the  man  who  is  invested  with  them,  the  power  of  repel- 
ling disseisors  *  by  means  of  force,  which  is  an  advantage  in  the 
suit  for  real  property;  ^  and  they  also  give  him  the  right  to  have 
his  possession  recognized  on  the  occasion  of  this  action.^  This  is 
simply  an  incident,  from  which  possessory  actions  have  not  yet 
been  evolved.  The  Customary  German  law  remains  in  this  stage 
of  evolution.^    This  was  not  so  with  regard  to  the  Anglo-Norman 

*  Numerous  texts  speak  of  "vestire  in  beneficio,  sub  censu."  The  tenant 
at  will  is  not  an  uncertain  withholder  in  the  modern  sense  of  the  word;  thus 
he  has  the  seisin,  which  does  not  prevent  the  owner  from  also  having  a  seisin 
on  liis  part  over  the  same  piece  of  land  by  right  of  ownership ;  all  the  more  did 
he  have  it  when  his  lands  were  cultivated  by  slaves  or  farmers  (although  the 
texts  speak  of  slaves  invested  with  a  farm  and  the  necessary  implements  for 
cultivating  it ;  cj.  "mansi  vestiti,"  "absi"):  -D.  Bouquet,  VIII,  621;  D.  Vaissette, 
no.  127;  "Cart,  de  Savigny,"  no.  434;  "de  St.  Victor,"  I,  77,  etc.;  Haeberlin, 
"Syst.  Bearb.  d.  in  Meichelbeck  ent.  Urk.,"  p.  189. 

2  D.  Vaissette,  no.  16.  Cf.  Champeaux,  p.  255.  As  to  hereditary  seisin,  see 
documents  cited  infra. 

3  P.  de  Fontaines,  p.  86,  230  et  seg.,  264  et  seq.;  "  Artois,"  t.  19  et  seq.;  "Et. 
de  St.  Louis,"  I,  69,  159;  II,  7;  "  Jostice,"  pp.  110,  270,  316;  Beaumanoir,  c.  32; 
"Cout.  Norm.,"  post;  "Stil.  Pari.,"  1,  18;  "Gr.  Cout.,"  II,  19,  p.  2'Sl;  Boutaric, 

I,  31;  Masuer,  t.  10  and  11  (matters  in  suit  relating  to  real  property  and  in 
possessory  action);  J.  d'lbelin,  c.  64,  151;  Loysel,  740;  Buche,  op.  cit.  —  Cf. 
J.  Faure,  "Inst.  s.  les  Interdits";  "Fors  de  B6arn,"  p.  165  (ed.  Mature). — 
Choice  of  texts  in  Hcnrion  de  Pansey,  "Comp.  des  Juges  de  Paix,"  p.  104  (in 
his  "(Euvres  Judiciaires").  — And  Guilhiermoz,  "Enquetes  et  Proces,"  pp.  232, 
285,  419,  438,  455,  618. 

*  Beaumancrir,  32,  24,  27;  "T.  A.  C,  Norm.,"  19,  77;  Loysel,  741.  The  man 
despoiled  had  not  only  a  right  to  repel  force  by  force,  but  also  the  right  of 
taking  back  his  property  within  a  year  and  a  day,  according  to  the  German 
books  of  Customs  ("Sachsensp.,"  II,  44,  1;  "Schwabensp.,"  50,  209;  Heusler, 

II,  37;  Bruns,  360),  provided  that  it  had  not  passed  into  the  hands  of  a  third 
person. 

6  "Gr.  Cout.  de  Fr.,"  II,  19,  p.  232;  Statute  of  Milan,  1396,  10:  "ex  pos- 
sessione  prsesumatur  quis  abere  dominium." 

8  P.  de  Fontaines,  21,  9  et  seq.;  22,  9;  "Jostice,"  19,  42,  2;  Glanville,  1,  7.— 
A  sort  of  "missio  in  possessionem"  of  the  complainant  in  the  procedure  when 
there  is  a  default.  —  In  the  procedure  when  there  is  a  defense  there  is  no  dis- 
tinction made  between  the  action  for  real  property  and  the  action  for  possession 
in  France  any  more  than  in  Germany;  there  is  only  one  proceeding  in  which  the 
first  thing  is  to  ascertain  who  has  the  possession  in  order  to  give  the  possessor 
the  advantage  of  being  allowed  to  prove  it:  D.  Marthne,  "Ampl.  Coll.,"  II, 
362  (in  1149);  D.  Calmet,  IV,  471  (in  1071).  On  the  German  law:  Heusler, 
op.  cit.;  Schroeder^  704,  n.  44. 

^  The  State  did  not  have  sufficient  strength  to  create  these  institutions, 
as  had  been  done  in  France  and  Normandy.    However,  after  the  thirteenth 

322 


Topic  4]  POSSESSION  [§  264 

and  French  law;  the  former  towards  the  end  of  the  twelfth  cen- 
tury, the  latter  during  the  course  of  the  thirteenth,  break  away 
from  the  old  condition  of  affairs.  The  possessory  action  becomes 
detached  from  the  petitory  action  for  title;  ^  particular  forms  of 
action  are  created,  —  possessory  actions,  which  are  more  expe- 
ditious and  less  dangerous  than  suits  for  the  title;  ^  they  serve, 
as  did  the  Roman  interdicts,  to  recover  or  to  preserve  posses- 
sion.^ The  action  for  the  title  remains  for  the  man  who  has 
neglected  to  make  use  of  the  possessory  action;  "*  the  pleas  drawn 
from  the  actions  for  title  cannot  be  set  up  against  the  man  who 
brings  suit  for  possession.^  The  minor  cannot  act  "de  jure"  or 
*'de  proprietate,"  but  he  is  capable  of  bringing  the  possessory 
action.^  The  distinction  is  marked,  even  in  matters  of  juris- 
diction; the  possessory  action  is  reserved  for  the  tribunals  of  the 
duke  in  Normandy,  for  the  tribunals  of  the  king  in  France, 
whereas  the  action  for  title  can  appertain  to  the  seigniorial  or 
ecclesiastical  tribunals.'^ 

century  we  find  here  and  there  a  suggestion  of  this  sort  of  action.  Recourse 
to  a  jury  of  neighbors  to  discover  who  has  the  possession:  "Vetus  Auctor," 
1,98. 

1  P.  de  Fontaines,  p.  232:  "saisine,"  "fonz  de  querele,"  "principal  querele"; 
"T.  A.  C,  Norm.,"  75,  78,  etc.;  "Sum.  Norm.,"  2,  55,  2;  Bracton,  1,  4,  3;  3,  4, 
7,  etc.;  Beaumanoir,  6,  4;  32,  30;  "Jostice,"  12,  26,  3;  "Gr.  Gout,  de  Fr.," 
pp.  350,  529,  etc. 

2  J.  d'Ibelin,  64,  mentions  the  action  of  novel  disseisin,  which  corresponds 
to  the  "actio  spolii"  of  the  canon  law  and  the  compulsory  action,  which  is 
purely  penal.  It  does  not  seem  that  the  complaint  had  yet  found  a  place  in 
the  law  of  the  Assizes:  Glasson,  "  N.  R.  H.,"  1890, 606.  Cf.  "  Et.  de  St.  Louis," 
II,  7;  I,  69. 

^  Effects:  a  full  restoration  to  seisin,  and  restitution  of  the  issues.  Cf. 
especially  Beaumanoir.  —  Let  us  observe  that  the  possessor  in  good  faith  ob- 
tains the  issues  for  himself:  P.  de  Fontaines,  21,  9;  Beaumanoir,  32,  13;  Loysel, 
743. 

*  "Salva  questione  proprietatis":  "T.  A.  C.,  Norm.,"  75,  2  and  3;  77,  3; 
81,  2;  "Stat.  Norm.,"  Warnk.,  II,  38;  "Etabl.,"  p.  66;  "Glim,"  I,  pp.  4,  76, 
288,  355,  452,  476,  515,  542;  II,  pp.  58,  67,  72,  112,  162,  etc.    P.  de  Fontaines, 

E.  267 :  loss  of  seisin  for  failure  to  prove  one's  case,  but,  conversely,  when  one 
egins  by  the  action  for  real  property  one  is  not  allowed  then  to  proceed  with 
the  action  for  possession.  Bracton,  5,  11;  "Anc.  Us.  d'Artois,"  20,  29  et  seq.; 
Desynares,  300;  "Gr.  Gout.,"  p.  267;  Masuer,  10,  2:  one  cannot  begin  the  action 
for  real  property  and  the  action  for  possession  at  the  same  time.  Boutaric, 
I,  31  (p.  198):  the  judgment  in  the  case  of  the  possessory  action  should  be 
carried  out  entirely  before  one  passes  to  the  action  for  real  property:  cf.  "Siete 
Part.,"  3,  2,  28. 

*  "Arrest.  Scac,"  Warnk.,  II,  76;  "Etabl.,"  p.  123;  "Olim,"  I,  452,  no. 
16;  494,  no.  13,  etc.  The  nearest  heir  against  whom  his  adversary  pleads  his 
quality  of  donee  obtains  the  seisin  "et  de  proprietate  fiat  jus  coram  domino 
feodali." 

8  "T.A.C.,  Norm.,"  78,  1,3. 

7  "T.  A.  G.,  Norm.,"  22,  2;  53;  P.  de  Fontaines,  Z2,  17;  "Olim,"  1,4.52,  16; 
667,  8;  11,56,  10;  408,  20,  etc.  Cf.  I,  814,  2,  881,  38;  II,  79,  5;  156,  7;  "Stil. 
Parl.,'^  1,  18,  25.    "Or.  Gout.,"  p.  240,  253:  charge  only  by  the  royal  judge: 

323 


§  265]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

§  265.  The  Seisin  belongs  to  the  man  who  enjoys  the  use  of  a 
piece  of  property  or  exercises  some  right  over  it  on  his  own  ac- 
count.^ Thus  we  find  the  characteristic  double  element  of  Roman 
possession,  the  "corpus"  and  the  "animus,"  the  fact  and  the  in- 
tention. It  is  true  that  seisin,  not  corresponding  to  ownership 
alone,  as  did  possession  in  Rome,  the  "animus"  and  the  "cor- 
pus" must  be  understood  in  a  broader  manner;  but  it  cannot  be 
said  that  they  have  changed  their  nature.^  The  one  who  detains 
for  another  has  not  the  seisin,  —  at  least,  as  a  general  rule;  it  still 
remains  with  the  owner,  as  it  does  when  he  has  his  land  culti- 
vated by  workmen  or  servants.^  Moreover,  distinctions  here  be- 
come necessary;  the  same  person  can  withhold  at  the  same  time 
on  his  own  account  and  for  somebody  else;  he  can  have  the  seisin 
as  far  as  his  own  right  is  concerned  and  not  as  far  as  somebody 
else's  right  is  concerned.  In  such  a  case  as  this  two  seisins  will 
exist  at  the  same  time  with  regard  to  the  same  piece  of  property. 
Sometimes,  instead  of  two,  there  will  be  three  or  more.  The  fief 
gives  us  an  example  of  this  series  of  simultaneous  seisins :  the  lord 
who  has  granted  it,  the  vassal  who  has  received  it,  and  who  in 
his  turn  has  the  land  cultivated  by  a  copyholder,  the  copyholder 
who  leases  it  out  to  the  tenant,  have  each  one  a  seisin;  for  each 
one  of  them  the  seisin  is  the  exercise  of  his  own  particular  rights.^ 

Masuer,  XI,  60,  75  (privilege  for  the  action  of  simple  seisin).    "Lib.  praet. 
Remensis,"  p.  187;  "Ord.,"  1539,  Art.  49;  G.  Pape,  q.  1;  Loysel,  752. 

1  Cf.  the  German  formula:  "Gut  im  Nut  und  Gelde  hat":  "Sachsensp. 
Lehnrecht,"  14,  1;  Pollock  and  Maitland,  II,  32;  Beaumanoir,  34,  13;  "Gr. 
Gout,  de  Fr.,"  252;  "  L.  d.  Droiz,"  630;  Loysel,  749,  765.  Numerous  examples 
in  the  "Ohm,"  seisin  of  the  right  of  hunting:  I,  425;  II,  175;  of  a  tithe:  I,  743; 
of  a  right  to  administer  justice:  I,  984,  etc. 

2  According  to  Heusler,  the  main  difference  between  Roman  possession 
and  the  Germanic  "Gewere"  would  consist  in  the  fact  that  the  former  as- 
sumed the  "animus  domini,"  whereas  the  second  belonged  to  whoever  had 
the  use  of  a  piece  of  property  or  of  a  right  ("animus  possidendi").  This  is 
an  extension  of  the  idea  of  possession,  an  extension  which  is  so  natural  that  it 
had  already  half  taken  place  at  Rome  (quasi  possession)  and  it  became  com- 
plete in  the  Middle  Ages  in  the  common  Roman  law  and  in  the  canon  law.  Cf. 
in  the  formulae  ("Roz.,"  142,  152,  etc.):  "possidere  jure  proprietario,  sub  usu 
beneficio,  usufructario  ordine." 

^  He  who  disseises  the  serf  disseises  his  lord,  which  does  not  prevent  two 
serfs  from  disputing  with  each  other  the  seisin  of  their  holdings. 

*  "Gr.  Gout,  de  Fr.,"  p.  235:  seisin  of  the  usufructuary;  p.  239:  the  vassal 
can  bring  complaint  against  his  lord;  p.  248:  seisin  of  the  farm  tenant  who 
had  still  four  years  left  to  hold  the  land  and  whom  a  new  purchaser  wished  to 
expel;  p.  756:  between  lord  and  subject  there  can  be  no  trespass.  Beau- 
manoir, 32,  8:  "for  many  reasons  may  the  lord  take  that  which  is  held  from 
him."  If  the  possessory  action  is  refused  him  the  subject  may  proceed  in 
another  manner  before  the  seigniorial  court.  Cf.  Masuer,  XI,  15,  22,  49. 
Beaumanoir,  32,  13,  gives  the  farm  tenant  the  action  of  novel  disseisin  against 
the  lessor;  thus  he  recognizes  that  the  farm  tenant  has  a  true  seisin  for  the 

324 


Topic  4]  POSSESSION  [§  266 

§  266.  The  Seisin  is  Acquired,  on  principle,  by  the  taking  of 
physical  possession:  occupation  with  regard  to  "res  nuUius,"  de- 
livery with  regard  to  things  which  have  already  been  appropri- 
ated, taking  into  possession  regularly  carried  out  by  some  one 
who  merely  exercises  a  right  (for  example,  by  virtue  of  a  judg- 
ment).^ Having  sprung  "a  non  domino,"  delivery,  however,  con- 
fers seisin;  ^  but  upon  one  condition  in  the  old  law,  that  is,  that 
there  has  been  an  investiture  or  giving  of  seisin  by  the  lord,  — 
in  other  words,  that  it  has  been  regular.  In  time  this  requirement 
disappeared,  as  we  shall  see,  with  regard  to  the  transfer  of  owner- 
ship.^ Taking  into  possession  "vi  aut  clam"  only  gives  rise  to  a 
defective  seisin,  which  is   not  efficacious  or  has  limited  conse- 

purpose  of  protecting  his  right  over  the  land,  and  it  is  to  be  noticed  that  here 
he  is  dealing  with  a  lease  for  a  term  and  not  a  lease  for  life,  —  a  case  in  which 
the  doubt  could  not  have  arisen.  According  to  Bracton,  the  tenant  for  a 
term  has  a  special  kind  of  action,  whereas  the  assize  of  novel  disseisin  is  re- 
served for  the  lessor.  Pollock  and  Maitland,  II,  36.  As  to  these  simultane- 
ous seisins  and  the  difficulties  to  which  their  existence  gives  rise,  Heusler,  II, 
25;  Stobbe,  I,  200.  —  The  doctrine  of  the  Romanists  is  confused:  Azo,  "Sum. 
in  Cod.,"  7,  32;  Accursius,  "Gl.  s.  1.,"  3,  5,  D.,  41,  2;  Bartol.,  "ad"  I,  1,  "D., 
de  acq.  v.  am.  poss.,"  8.  Cf.  the  position  of  the  tenant  at  will,  the  pledgor, 
and  the  sequestrator  at  Rome. 

1  "Gr.  Gout,  de  Fr.,"  II,  19  (p.  231). 

2  Beaumanoir,  51,  18.  The  seisin  is  justified  by  the  regularity  of  the  deed, 
at  least  in  appearance.  The  purchaser  in  good  faith  had,  moreover,  advantages 
of  prescription.  As  to  the  purchaser  in  bad  faith  his  seisin  might  have  been 
considered  as  defective,  but  bad  faith  cannot  be  presumed;  if  there  is  no 
aggravating  circumstance,  no  offense  or  complicity  in  offense,  he  has  the  same 
advantage  as  the  purchaser  in  good  faith.  The  texts  of  the  thirteenth  century 
do  not  formally  provide  for  this  case,  because  good  faith  is  assumed. 

_  ^  One  can  say  there  is  no  seisin  (that  is  to  say,  no  possessory  actions,  etc.) 
without  a  giving  of  seisin  by  the  lord  or  by  the  law  (or  without  possession  for 
a  year,  wliich  was  the  equivalent  of  this  giving  of  seisin:  " L.  d.  Droiz,"  §  712; 
later  on  possession  for  ten  years:  Loysel,  748).  The  taking  of  possession  is 
only  regular  on  condition  of  the  intervention  of  the  lord  or  the  judge;  if 
this  is  lacking  the  protection  offered  by  the  possessory  action  is  denied  {cf., 
however,  "Recovery  of  Possession").  But  from  the  fact  that  there  can  be 
no  seisin  without  a  lawful  giving  of  seisin,  it  does  not  follow  that  seisin  is 
acquired  through  the  mere  fact  of  the  conferring  of  seisin;  this  is  an  unsettled 
question  and  one  which  cannot  be  answered  by  the  similarity  of  the  words, 
"saisine,"  " ensaisincment " :  As  to  this,  "Jostice,"  2,  1,  1;  12,  6,  26;  "Gout. 
Not.,"  53,  72;  Desmares,  62,  185,  189;  Boxdaric,  I,  43;  Varin,  "Arch.  16g.  de 
Reims,"  I,  675,  961 ;  Beaumanoir,  30,  38;  6,  4;  De  Parieu,  p.  76.  —  Moreover,  in 
this  matter  the  distinction  was  drawn,  at  least  in  the  fourteenth  century, 
between  fiefs  and  copyholds  ("censives").  The  conferring  of  seisin  by  the 
lord  was  given  up  in  the  case  of  copyholds:  "He  does  not  take  seisin  who 
does  not  wish  to.  Loysel,  745,  746:  "Taking  possession  in  fact  is  equivalent 
to  seisin,"  that  is  to  say,  that  taking  possession  in  fact  is  worth  just  as  much 
as  the  old  giving  of  seisin  by  the  lord  which  was  formerly  in  use;  the  owner- 
ship is  acquired  in  cither  case.  With  regard  to  fiefs,  on  the  contrary,  the 
necessity  for  conferring  of  seisin  by  the  lord  continued  longer;  in  its  absence, 
says  the  "Gr.  Gout.,"  p.  233,  seisin  is  neither  acquired  in  law  nor  in  fact; 
the  purchaser  is  not  the  owner  and  cannot  bring  the  action  for  possession 
(even  if  there  has  been  a  feigned  delivery). 

325 


§  266]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

quences;  ^  but  this  original  defect  is  capable  of  disappearing;  ^  as 
soon  as  the  possession  ceases  to  be  disturbed,  as  soon  as  it  takes 
place  publicly  to  everybody's  knowledge,  the  demands  of  the 
texts  which  are  constantly  speaking  of  peaceful  seisin  are  satis- 
fied;^ the  defect  of  uncertainty,  on  the  contrary,  does  not  disap- 
pear with  time;  a  change  of  title  would  be  necessary.'' 

§  267.  Seisin  under  Law,^  which  is  independent  of  any  phys- 
ical taking  into  possession  of  an  object,  of  any  exercise  of  a  right, 
only  exists  in  a  very  exceptional  manner:  (a)  for  the  benefit  of 
the  possessor  unlawfully  deprived,  and  who  is  considered  as  still 
being  legally  seised ;  ^  (6)  for  the  benefit  of  the  heir  from  the 
time  of  the  death  of  the  "de  cujus";  ^  (c)  for  the  benefit  of  the 
vendee,  who  has  received  the  seigniorial  or  judicial  investiture 
in  a  symbolical  manner  (delivery  by  the  rod) ;  ^  (d)  for  the  benefit 

^  Beaumanoir,  32,  23:  the  thief  has  the  seisin  and  may  demand  to  be 
reseised  "before  anything  else  is  done,"  although  he  may  have  to  incur  the 
penalty  of  death.  Cf.  31,  3:  he  is  seised  and  possessed  of  the  thing  stolen: 
P.  de  Fontaines,  p.  264  (we  make  use  of  this  right):  seisin  of  theft  (seisin 
based  upon  a  tort);  Guilhiermoz,  p.  286:  possession  based  on  distraint. 

2  "  Jostice,"  p.  271 :  to  hold  a  year  and  a  day  without  dispute;  Beaumanoir, 
32,  2;  to  have  the  seisin  for  a  year  and  a  day  in  peace. 

^  The  texts  do  not  pronounce  themselves  categorically  either  upon  the  ab- 
solute or  relative  character  of  defects  of  possession  or  upon  the  question  of 
knowing  if  they  are  cleared  off  by  lapse  of  time.  They  seem  to  look  upon 
these  defects  as  absolute,  and  as  being  of  such  a  nature  that  they  could  be 
offered  in  opposition  by  everybody,  and  not  only  by  the  person  injured,  etc. 
In  fact,  the  restriction  "ab  adversario"  plays  no  part  here.  Cf.,  moreover, 
hereafter  the  distinction  between  the  complaint  and  the  recovery  of  posses- 
sion: Pothier,  no.  17;  Dunod,  "Prescr.,"  p.  18  (ed.  1753).  Guilhiermoz, 
"Enquetes,"  p.  288,  no.  56:  1st,  one  complains  "de  novitate,"  that  is  to  say, 
of  a  recent  disturbance;  the  complainant  will  only  be  heard  if  he  has  been 
disturbed  within  less  than  a  year;  if  he  allows  his  adversary  to  remain  in  pos- 
session for  a  year  and  a  day  he  will  be  defeated,  although  he  may  set  up  that 
this  possession  was  defective;  2d,  one  acts  "simpliciter  de  possessione";  the 
man  succeeds  who  proves  that  he  has  possessed  the  property  for  the  longest 
time  "nee  vi,  nee  clam,  nee  precario."  No.  59:  "Alii  dicunt  quod  qui  cadit 
a  novitate  .  .  .  cadit  etiam  a  possessione  simplici "  (an  Order  to  the  contrary 
in  1340).  Post,  "Action  of  Simple  Seisin."  —  See  as  to  the  existing  law: 
Gar  sonnet,  I,  p.  588. 

*  Beaumanoir,  32,  13,  14.  On  the  expression,  "withholders  at  will,"  of. 
"Cod.  Just.,"  7,  39,  2.  —  Garsonnet,  I,  p.  585,  n.  18. 

^  The  expression,  "Seisin  at  law,"  is  found  in  the  "Gr.  Cout.,"  as  con- 
trasted with  seisin  in  fact  or  physical  detention.  Cf.,  "  Possessio  realis  civilis" 
of  the  old  Romanists,  and  "Ideelle  Gewere"  of  the  modern  Germans. 

*  This  seisin  can  be  opposed  to  everybody  without  distinction,  in  the  same 
way  as  ordinary  seisin,  and  not  only  to  certain  persons  (for  example,  to  the 
"dejiciens"). 

^  Before  he  shall  have  taken  possession  himself  of  the  property  of  the  in- 
heritance: J.  Faber,  "Inst,  de  Interd."  Cf.  post,  the  formulae,  "Le  mort 
eaisit  le  vif  ";  "Le  roi  est  mort,  vive  le  roi!"  Gui  Pape,  q.  3.55. 

*  From  this  there  results  the  transfer  of  the  ownership,  but  also  that  of  the 
possession;  investiture  is  after  all  only  a  delivery.  Cf.  Ferriere,  see  "Poss. 
Feinte." 

326 


Topic  4]  POSSESSION  [§  267 

of  the  man  to  whom  the  judgment  gives  the  possession  of  a  piece 
of  land  before  he  has  actually  entered  into  possession  of  it.^  That 
the  possession  should  have  belonged  to  the  two  former,  that  is 
to  say,  to  the  heir  -  and  the  possessor  who  has  been  deprived,  is 
something  which  cannot  be  doubted;  the  books  are  as  specific  as 
possible  upon  this  point,  and  urgent  motives  of  practical  utility 
justify  this  explanation.  As  to  those  who  could  only  invoke  a 
feoffment  or  a  judgment  without  physical  taking  into  possession, 
they  had  the  right  of  acquiring  the  seisin  and  of  taking  possession; 
but  one  asks  oneself  if  they  were  allowed  to  make  use  of  the  posses- 
sory actions  before  any  taking  into  possession,  and  if  they  could 
plead  that  they  were  seised.  This  would  seem  logical,  because  a 
transfer  of  ownership  for  their  benefit  takes  place,  and  the  pre- 
tended delivery  of  which  this  is  the  effect  ought  to  transfer  the 
possession  at  the  same  time  as  it  reduced  the  grantor  to  the  con- 
dition of  a  withholder  "alieno  nomine."  Such  is  indeed  the  solu- 
tion which  seems  to  have  prevailed,^  but  our  sources  are  far  from 
being  as  explicit  with  regard  to  these  cases  as  they  are  with  re- 
gard to  the  preceding  ones.'* 

^  This  last  case  is  the  most  doubtful  one,  and  it  is  perhaps  the  one  which 
is  contemplated  by  the  "L.  d.  Droiz,"  §  280:  Gui  Pape,  "In  Stat.  Delph.," 
loc.  cit. 

2  The  rule,  "Le  mort  saisit  le  vif"  (the  dead  gives  seisin  to  the  living)  was 
more  efficacious  with  regard  to  copyholds  than  it  was  with  regard  to  fiefs. 
The  seigniorial  giving  of  seisin  was  entirely  done  away  with  as  far  as  copy- 
holds were  concerned;  on  the  other  hand,  the  lord  is  seised  of  the  fief  before 
the  heir,  but  the  latter  has  a  right  to  demand  the  investiture  upon  condition 
of  swearing  fealty  and  homage;  he  cannot  take  possession  before  investiture 
under  penalty  of  a  fine:  "Gr.  Gout,  de  Fr.,"  p.  234.  Cf.  "Ass.  de  Jerus.," 
I,  227,  ed.  B.;  "Regiam.  Maj.,"  3,  28,  1.  —  In  the  English  law  seisin  in  law 
as  contrasted  with  seisin  in  deed,  taking  of  possession  in  fact.  Post,  "Writs 
of  Entry." 

3  Lauriere,  on  "Paris,"  96:  in  order  to  bring  the  complaint  one  must  have 
the  seisin,  and  in  order  to  have  the  seisin  one  must  have  been  in  possession 
for  a  year  and  a  day,  unless  one  has  been  given  seisin  by  the  lord  from  whom 
the  thing  in  dispute  is  held,  for  the  seisin  given  by  the  lord  is  equivalent  to 
that  acquired  by  the  year  and  a  day,  cf.  Guilhiermoz,  "Enquetes,"  p.  233; 
Gui  Pape,  q.  22  {Hostiensis,  post),  101,  415. 

*  In  support  of  this  very  much  contested  theory  one  can  invoke  the  maxim, 
"Le  mort  saisit  le  vif."  By  this  means  it  is  desired  to  place  the  heir  in  the 
position  where  he  would  find  himself  if  he  had  been  invested  or  given  the  seisin 
by  the  lord.  As  it  is  certain  that  the  heir  acquires  the  ownership  and  the  pos- 
session at  one  and  the  same  time,  it  should  be  the  same  for  any  assignee  who 
had  received  the  investiture  from  the  lord.  The  more  he  joins  the  possession 
of  his  grantor  to  his  own,  the  more  the  seisin  in  law  completes  this  advantage 
without  difficulty,  owing  to  the  idea  of  the  agreement  for  possession  in  lieu  of 
delivery;  the  important  part  played  by  this  in  matters  of  transfer  of  ownership 
we  are  well  aware  of:  "N.  R.  H.,"  1891,  176.  —  The  question,  nevertheless, 
encounters  many  difficulties.  Ileuslcr  cites  to  the  contrary  a  passage  from 
the  "L.  d.  Droiz,"  §  280.  He  argues  from  various  passages  of  the  "Gr. 
Gout.,"  p.  231:  occupation,  delivery  in  fact;  p.  233,  denies  seisin  through 

327 


§  268]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

§  268.  Yearly  Possession.^  —  Towards  the  end  of  the  thirteenth 
century  there  took  place  a  remarkable  modification  in  the  pos- 
sessory theory:  a  year's  possession  alone  was  taken  into  considera- 
tion, or  pretty  nearly  so;  ^  under  the  name  of  seisin,  or  true  seisin, 
it  was  contrasted  with  mere  possession  or  detention.^  Possession 
led  to  seisin  by  a  sort  of  prescription,  to  ownership  by  a  longer 
prescription.  In  both  cases  the  "accessio  possessionum "  of  the 
Roman  law  was  admitted;  the  assign  was  authorized  to  join  to 
his  possession  that  of  his  assignor,  so  as  to  complete  the  period  of 
one  year.^  Thus  seisin  appeared  like  a  real  right  which  could  be 
set  up  against  everybody,  a  sort  of  inferior  ownership.    The  result 

possession  "et  non  e  contrario."  Cf.  Beaumanoir,  2,  8  and  17;  20,  2;  32,  24; 
the  first  of  these  passages  seems  to  him  to  support  the  opinion  pointed  out 
in  the  text,  and  thus  perhaps  explains  the  "L.  d.  Droiz."  According  to 
Heuder,  the  giving  of  seisin  by  the  lord  or  the  giving  of  seisin  at  law  had 
no  effect  excepting  from  the  point  of  view  of  ownership:  "Sachsensp.," 
34,  3;  "Anc.  Us.  d'Artois,"  24,  5  to  12;  "Cout.  Not.,"  124;  "L.  d.  Droiz," 
712.  The  Romanists  commonly  admitted  that  possession  was  not  ac- 
quired by  investiture  "in  absentia  rei":  "Siete  Part.,"  IV,  26,  4  (notes); 
Hostiensis. 

1  As  to  the  delay  of  a  year  and  a  day,  cf.  post,  "Complaint,"  "Prescrip- 
tion," "Repurchase,"  etc.  —  According  to  Glasson,  "N.  R.  H.,"  1890,  594,  the 
seisin  for  a  year  and  a  day  already  existed  with  a  certain  general  character 
during  the  Frankish  period;  from  there  it  must  have  been  transmitted  to  the 
feudal  period  and  have  been  admitted  in  various  countries  from  Italy  even  to 
the  Scandinavians.  —  In  support  of  this  opinion  one  can  cite  remarkable 
cases  of  the  application  of  the  delay  of  a  year:  Tacitus,  "Germ.,"  26:  "arva 
per  annos  mutant";  "L.  Sal.,"  45  (47),  "de  migrantibus"  (he  who  has  estab- 
lished himself  in  a  village  cannot  be  exjjelled  therefrom  upon  the  request  of 
one  of  the  inhabitants  at  the  end  of  a  year's  sojourn).  "Cap.,"  825,  c.  11  (I, 
331) :  preference  for  the  man  who  has  had  possession  for  a  year  and  a  day  in 
the  case  of  two  successive  sales.  —  But  the  mention  of  the  year's  delay  can 
be  reduced  to  about  tliis.  It  is  difficult  to  maintain  thenceforth  that  it  was 
generally  made  use  of.  More  likely  a  custom  came  to  be  established  which 
became  fixed  and  generalized  later  on.  Cf.  "Charte  de  Lorris,"  ed.  Prou, 
note  on  Art.  27;  Guilhiermoz,  "Enquetes,"  p.  287. 

2  In  the  "L.  Feud.,"  there  is  a  question  sometimes  of  yearly  possession  and 
sometimes  of  "longa  possessio,"  and  sometimes  the  possession  "aliquo  tem- 
pore" (1,  26,  1;  2,  33,  5,  2,  33  pr.).  The  vassal  who  has  been  in  possession 
one  year,  "sciente  domino  et  non  contradicente,"  may  swear  that  he  has  been 
invested  by  the  lord;  possession  for  a  year  was  thus  equal  to  investiture  by 
the  lord.  Fertile,  §  135,  cites  various  ItaUan  statutes  where  yearly  possession 
is  mentioned:  "Stat,  of  Modena,"  1327,  IV,  180.  In  1163  at  Trent,  "in  mallo 
publico  per  laudum  curiae,"  a  possession  of  a  year  and  a  day  is  required.  The 
"Fueros  de  Catalayud,"  by  Daroca,  assumed  a  possession  of  half  a  year  (1151, 
1142);  the  "F.  de  Miranda"  (1099)  t.  possession  of  a  year  and  a  day;  he  who 
has  been  in  physical  possession  during  these  periods  can  overthrow  every  action. 
As  to  triennial  possession  in  Italy,  cf.  Salvioli,  p.  443. 

'  To  have  the  peaceful  enjoyment  of  the  seisin  for  a  year  and  a  day,  an 
expression  which  is  already  current  in  the  time  of  Beaumanoir:  "Jostice,"  3, 
5,  4  (true  seisin).  Post,  "Complaint  in  Case  of  Seisin."  "Gr.  Cout.  de  Fr.," 
232;  Loysel,  749;  Masuer,  11,  3:  in  matters  dealing  with  income  the  most  that 
is  required  is  a  title.  Cf.  the  German  "rechte  Gewere,"  which  rather  deals 
with  ownership. 

*  Guilhiermoz,  "Enquetes,"  p.  286. 

328 


Topic  4]  POSSESSION  [§  269 

of  these  changes  was  not  long  in  making  itself  felt  in  the  proce- 
dure in  actions  for  possession,  which  became  complicated,  and 
developed.^  It  is  likely,  as  we  shall  see  with  regard  to  possessory 
actions,  that  the  importance  given  to  a  year's  possession  is  less  a 
radical  innovation  than  a  regulating  of  the  previous  state  of  af- 
fairs.- In  order  to  know  who  has  been  in  possession  of  a  piece  of 
land,  it  is  sought  to  discov-erwho  has  cultivated  it,  who  has  gath- 
ered the  harvest;  and  this  assumes  a  cultivation  of  one  year.  It 
is  no  doubt  owing  to  this  fact,  that  the  tenure  of  a  year  and  a 
day,  the  German  "rechte  Gewere,"  was  instituted.  Now  posses- 
sion for  a  year  is  only  a  reduction  of  these  older  institutions.  In 
countries  such  as  Italy,  where  the  Roman  law  prevailed,  it  is  a 
question  of  possession  for  a  year  in  the  local  statutes;  but  the 
common  law  set  it  aside,  until  the  day  when  it  reappeared  with 
the  French  codes.^ 

§  269.  Possessory  Actions.  Anglo-Norman  Law.^  —  Although 
the  Romano-canonic  law  recognized  the  creation  of  possessory 
actions,  it  is  probable  that  they  would  have  appeared  spontane- 
ously, even  if  the  influence  of  this  law  had  not  made  itself  felt, 
so  much  did  they  conform  to  the  social  conditions  of  the  Middle 
Ages.  It  is  in  Normandy  that  the  land  was  found  to  be  best  pre- 
pared to  receive  and  to  foster  the  germ  of  reform;  the  authority 
of  the  duke  worked  energetically  for  the  maintenance  of  the  pub- 
lic peace,  perhaps  because  after  the  invasions  and  the  wars  disor- 
der was  greater  than  it  had  been  before;  ^  acts  of  violence  were 

*  The  suppression  of  offences  and  acts  of  violence  being  assured,  a  greater 
degree  of  protection  may  be  demanded  for  possession. 

2  Guilhiermoz,  "Enquetes,"  p.  287,  no.  52  ad  finem. 

^  The  theory  of  Klimrath,  according  to  which  the  seisin  is  closely  related 
to  the  real  right  and  is  bound  up  in  it,  is  opposed  to  the  most  categorical 
texts:  Beaumanoir,  6,  4;  32,  30;  "Jostice,"  12,  26,  3;  "Gr.  Gout.,"  pp.  350, 
529).  According  to  Klimrath,  seisin  in  fact  would  be  the  same  thing  as 
occupancy  (lender,  farm  tenant,  etc.);  seisin  at  law  is  rather  the  right  to 
take  possession  in  fact;  simple  seisin  is  contrasted  with  true  seisin,  —  that  is 
to  say,  with  the  seisin  which  has  lasted  a  year  and  a  day.  Thenceforth  there 
would  be  four  kinds  of  seisins:  1st.  The  simple  seisin  in  fact.  2d.  The  simple 
seisin  at  law,  resulting  from  a  judgment,  from  investiture  at  law,  or  from 
inheritance.  3d.  The  true  seisin  in  fact,  or  possession  for  a  year  and  a  day, 
serving  as  a  basis  for  the  complaint.  4th.  The  true  seisin  in  fact  and  at  laiv,  or 
possession  for  a  year  and  a  day  based  upon  a  judgment,  etc.  The  terminology 
of  the  sources  is  not  firmly  established:  "Gr.  Gout.,"  pp.233,  234,367:  "saisine 
de  fait,  saisine de  droit  " ;  "Jostice,"  13,5,  4;  17,3,2:  " vraie  saisine  " ;  cf.  12, 
6,  26;  4,  4,  1;  "Gr.  Gout.,"  p.  239:  natural  possession  and  civil  possession; 
"L.  des  Droiz,"  86;  Boidaric,  fo.  90. 

«.  ^  Heusler,  "Gewere,"  §  28;  Brunner,  "Entst.  d.  Schwurger,"  327;  Pollock 
and  Maitland,  II,  29. 

^  "T.  A.  C.,  Norm.,"  22,  31:  "  nuUus,  guerram  f aciat " ;  Pollock  and  Maitland, 
11,44. 

329 


<5f 


§  269]  OWNERSHIP   AND    REAL    RIGHTS  [Chai-.  II 

repressed  by  every  possible  means;  one  of  those  by  which  the 
poHce  power  of  the  dukes  was  most  effectively  exercised  was  the 
estabhshment  of  possessory  procedure.^  It  had  its  point  of  con- 
nection in  a  privilege  which  was  reserved  to  the  duke  during  the 
feudal  period,  and  to  the  king  in  the  Frankish  period,  the  prac- 
tice of  "  recognitio " ;  ^  instead  of  taking  the  chances  of  the  duel, 
as  in  ordinary  procedure,^  the  duke  caused  his  rights  to  be  ascer- 
tained by  means  of  the  inquest;  this  prerogative  was  extended  to 
ordinary  individuals;  by  means  of  a  writ  of  the  duke,^  each  man 
could  have  his  possession  established  ("recognoscere")  by  a  jury 
of  twelve  honorable  men  of  the  neighborhood;  the  inquest  is  more 
favorable  to  the  weak  and  the  poor  man  than  would  be  the  com- 
bat with  the  formidable  champions  of  the  rich.^ 

The  most  important  of  the  possessory  actions  ^  is  the  "querela 
novae  dissaisinse  "  or  complaint  ensuing  upon  a  recent  disposses- 
sion.^   The  person  deprived  has  the  resource  of  taking  back  his 

1  "Ne  potens  male  agat  super  impotentem " :  "T.  A.  C,"  7,  1;  16,  4  and  5; 
19.  1;  31,  35.  The  "T.  A.  C,"  53,  classed  them  among  the  "placita  ensis  ad 
ducem  pertinentibus,"  alongside  of  such  offenses  as  "  infractiones  qui  minorum," 
and  the  "insultus  pacis."  The  assize  of  novel  disseisin  probably  dates  from 
the  year  1166  (Henry  II);  it  is  at  this  time  that  it  constituted  a  normal  kind 
of  proceeding.    As  to  precedents,  cf.  Bigeloiv,  "Placita,"  128. 

^  The  Church  orphans  and  other  persons  under  the  special  protection  of 
the  State  were  the  first  to  enjoy  this  advantage. 

'  "Fleta,"  5,  7,  1.  The  procedure  of  the  "recognitio"  was  also,  it  is  true, 
applied  to  ownersliip;  but  then  the  writs  were  granted  in  a  different  manner. 
The  denial  by  a  single  juror  makes  the  duel  inevitable:  "T.  A.  C,"  85;  Pollock 
and  Maitland,  II,  45. 

*  The  Roman  procedure  of  prohibitions  is  also  begim  by  an  order  of  the 
praetor:  "T.  A.  C,"  25:  "nulla  fiet  recognitio  nisi  per  breve  ducis."  Cf.  ib., 
73.  The  writ  is  presented  to  the  duke's  bailiff  "in  patria  conquerentis " ;  by 
means  of  this  writ  the  duke  notifies  him  to  send  to  the  "dejiciens"  the  order 
to  make  restitution  ("praeceptum  de  ressaisiendo");  if  this  order  produces  any 
result  the  proi>erty  is  then  sequestrated  according  to  the  "Summa,"  93,  2 
{cf.  "T.  A.  C,"  19,  3),  which  is  the  best  means  of  assuring  peace;  a  jury  is  apn 
pointed;  it  proceeds  with  the  "visio  terrge"  and  renders  its  verdict  at  the  next 
assizes  held  before  the  ducal  "  justitiarius."  C.  19,  3  of  the  "T.  A.  C,"  seems  to 
require  unanimity  on  the  part  of  the  jurors,  as  it  does  in  actions  dealing  with 
ownership;  c.  76  declares  that  a  majority  is  sufficient  (cf.  c.  22,  1:  nine);  only 
one  excuse  ("essoine")  is  allowed,  whereas  there  are  three  in  the  proceeding 
of  the  duel  ("T.  A.  C,"  42,  1  and  3;  73,  3  and  4;  77,  6;  82),  so  that  the  proceed- 
ing is  short.  If  the  accused  is  in  default  a  second  time,  the  "recognitio"  by 
the  jury  takes  place  as  though  he  were  present;  this  may  turn  out  to  his  advan- 
tage, but  he  is  "in  misericordia  ducis  pro  defectu." 

6  "T.  A.  C,"  17;  BeauTtianoir,  32,  24. 

^  Other  actions:  "querela  de  antecessoris  saisina"  for  the  benefit  of  the  heir 
with  whom  the  seisin  of  the  property  possessed  by  the  deceased  is  being  con- 
tested; "querela  de  presentatione  ecclesiae"  for  the  benefit  of  the  man  with 
whom  the  patronage  of  a  church  is  being  contested;  perhaps  "querela  maritagii 
impediti"  (writ  of  encumbered  marriage)  for  the  recovery  of  the  marriage 
portion:  "TAG.,"  5;  79,  9. 
^  _  '  "T.  A.  C,"  73.    Cf.  "Summa,"  93;  "T.  A.  C,"  74,  and  "Summa,"  98,  1. 

330 


Topic  4]  POSSESSION  [§  269 

property  by  force  on  condition  of  acting  at  once;  the  English  law 
even  allows  him  a  delay  of  four  days;  but,  as  a  general  thing,  if  he 
does  not  act  immediately,  the  method  of  the  "  Selbsthiilf e "  is 
forbidden  him;  ^  he  is  reduced  to  the  "querela."  In  order  that 
he  may  be  able  to  exercise  this  right,  the  dispossession  must  bear 
on  a  free  tenement,  and  not  on  a  villein  tenement,  or  a  tenement 
held  by  a  serf.^  It  matters  little  whether  the  dispossession  has 
taken  place  with  or  without  violence.  The  simple  disturbance  of 
possession  is  likened  to  absolute  disseisin  or  spoliation,^  which 
accounts  for  the  fact  that  the  "querela"  took  the  place  of  the 
"retinendse"  and  " recuperandse  possessionis  causa"  ^  interdicts. 
The  dispossession  must  be  recent  ("nouvelle");  if  a  year  and  a 
day  has  passed  since  it  has  taken  place,  the  action  will  be  refused; 
the  spoliation  is  an  offense,  the  victim  of  which  should  make  com- 
plaint within  a  short  time,  under  penalty  of  being  considered  as 
having  pardoned  it;  moreover,  order  is  re-established;  the  jury  of 
neighbors  would  have  more  difficulty  than  if  it  were  consulted  the 
day  after  the  offense  took  place.^  The  question  asked  the  jury 
is  to  be  a  simple  one;  ^  they  are  asked  if  such  and  such  a  man 
was  in  possession  at  the  time  of  disseisin;  now,  this  is  a  fact  which 
it  is  easy  to  establish;  possession  is  known  by  cultivation,  by  en- 
joyment.^   The  "  Tres  Ancienne  Coutume  de  Normandie  "  seems  to 

^  Bradon,  4,  1,  5  and  27.  —  The  action  of  trespass,  which  in  English  law 
could  apply  to  a  case  of  disturbance,  only  made  its  appearance  under  Henry  III : 
Pollock  and  Maitland,  II,  53.  —  The  raising  of  the  hue  and  cry  which  was  used 
in  cases  of  mere  disturbances  in  fact:  "N.  H.  R.,"  1882,  411.  Cj.  "T.  A.  C," 
16,  3  and  5.    Post,  §  14. 

2  "Magna  Charta,"  1215,  c.  39;  1217,  c.  35. 

'  Distinctions  in  English  law,  disseisin,  intrusion,  abatement,  etc. :  Glasson, 
IV,  261.  Fictitious  preservation  of  the  seisin  by  means  of  a  protest  made 
every  year  upon  the  land  or  within  its  immediate  neighborhood:  ibid.,  IV,  266. 
Cf.  Littleton,  A^^^. 

*  Contesting  of  the  right  to  collect  a  tithe;  there  is  disturbance  rather  than 
dispossession:  "Arresta  Scacar.,"  after  Warnk.,  II,  76.  Should  the  man  in 
possession  of  a  piece  of  land  who  was  simply  disturbed  have  the  "querela"? 
The  English  sources  are  very  liberal  on  this  point:  Bradon,  4,  1, 38,  4;  "Fleta," 
4,  1,  8  and  9;  Britton,  42;  "Myrror  of  Justice,"  II,  25  (ousting,  disturbance, 
ejectment).  No  doubt  the  ducal  writ  was  only  granted  at  first  in  cases  of 
dispossession,  the  attack  upon  public  order  being  of  a  more  serious  nature; 
afterwards  its  limit  was  extended  to  include  even  cases  of  disturbance,  without 
its  being  necessary  to  create  a  new  form  of  procedure. 

"  "T.  A.  C,"  21,  2;  73, 4;  74;  75,  2  and  3;  78,  5;  Warnkoenig,  II,  31;  "Etabl.," 
p.  54;  "Summa,  "  2,  29,  6,  and  30,  1,  2;  2,  32,  2  and  34,  3  and  5.  —  Cf.  as  to 
the  English  law  from  the  last  voyage  of  the  king  in  Normandy  and  from  the 
"prima  coronatio  regis":  Bradon,  fo.  179;  Pollock  and  Maitland,  II,  50. 

^  Pollock  and  Maitland,  II,  48. 

'  "ExpHcare,"  "explicitare,"  to  carry  out  to  the  very  end,  "explectare," 
"espleitier,"  "espleit":  "Et.  de  St.  Louis,"  I,  92  (" exploit ables  au  baron"); 
Godefroy,  see  "esploit"  ("fruiz  et  espleiz").    Cf.  Beaumanoir,  29.     ("Rentes, 

331 


§  269]  OWNERSHIP   AND    REAL   RIGHTS  [CflAP.  II 

exact  nothing  more  than  this  in  order  to  allow  a  man  to  prevail  in 
the  "querela"  (excepting,  no  doubt,  possession  "animo  domini").^ 
It  is  the  same  thing,  according  to  the  "Summa,"  if  the  jury  is  not 
agreed  on  the  "modus"  or  the  "qualitas  saisinse";^  but,  if  the 
inquest  reveals  by  what  title  the  possession  is  held  ("qualitas  sai- 
sini"),  in  what  manner  the  possession  was  acquired  ("modus"), 
the  "Summa"  demands  that  the  utmost  importance  be  attached 
to  these  two  points.  It  refused  the  possessory  action:  1st,  to  the 
man  who  holds  for  another;  ^  2d,  to  the  man  whose  possession 
is  tainted  with  the  defects  of  violence  or  surreptitiousness,  that 
is  to  say,  which  is  acquired  by  force  or  from  an  unfaithful  cus- 
todian in  the  absence  of  the  owner.  The  former  has  no  personal 
right  and  must  give  way  to  the  man  for  whose  benefit  he  detains. 
The  latter  does  not  deserve  to  be  protected :  "  omnis  violenta  vel 
furtiva  possessio  detestanda."  ^    Against  him  whom  he  has  de- 

loyers  et  esplois.")  Cf.  "exploiter"  in  speaking  of  the  bailiflf.  If  the  matter 
is  one  concerning  a  piece  of  land,  the  jury  takes  into  consideration  who  it  was 
that  gathered  the  harvest  in  the  month  of  August  preceding  the  disseisin  (in  the 
month  of  August  of  the  year  previous  to  that  if  the  harvest  is  gathered  every 
two  years).  —  With  respect  to  other  property  they  regard  in  the  same  way  the 
period  when  the  income  is  collected:  "Summa,"  93,  7.  —  On  the  "querela  de 
antecessoris  saisina,"  cj.  "T.  A.  C,"  21,  1  and  2;  74;  "Summa,"  98,  1;  2,  34,  1; 
Waryik.,  II,  73.  They  find  out  whether  the  deceased  was  seised  upon  the  day 
of  his  death,  —  that  is  to  say,  if  he  gathered  the  harvest  in  the  preceding 
August. 

1  Writ  of  novel  disseisin  (73,  1):  "dissaisivit  injuste  et  sine  ordine  judi- 
ciario."  "Injuste"  means  irregularly,  without  the  intervention  of  the  law. 
Cf.  Pollock  and  Maitland,  II,  47,  n.  4;  51.  But  it  is  possible  that  afterwards 
the  following  reasoning  was  made  use  of:  only  he  who  is  seised  "juste"  can 
be  disseised  "injuste";  therefore,  we  must  find  out  whether  the  seisin  of  the 
man  despoiled  was  "justa";  if  it  were  not,  then  the  "verus  dominus"  has  a 
right  to  take  possession  of  the  thing.  This  interpretation  is  contrary  to  the 
"T.  A.  C,"  22,  1:  "nullusausus  sit  aliquem  de  aliqua  re  devestire  sine  ordine 
judiciario."    Cf.  Canon  law.  — Guilhiermoz,  "Enquetes,"  p.  286  ("indebite"). 

2  "Summa,"  95,  10;  Delisle,  no.  390,  in  1226. 

2  "T.  A.  C,"  78,  3.  "Possessio  fiodalis"  alone  is  protected,  and  the  word 
"feodum"  in  the  old  Norman  documents  applies  both  to  the  copyhold  and  the 
fief.  The  "querela"  belongs  to  the  lord,  to  the  vassal,  to  the  copyholder,  but 
not  to  the  farm  tenant,  to  the  officers,  to  withholders  by  virtue  of  a  lease,  a 
loan,  or  even  a  pledge:  "Summa,"  95,  10  and  11;  98,  7;  Glanville,  13,  28; 
"Fleta,"  4,  3,  1  and  4.  Conversely,  nobody  can  begin  the  "querela"  against 
a  person  who  is  in  possession  for  another;  the  owner  will  have  another  means 
of  action  against  possessors  at  will,  that  of  the  "districtio"  or  distraint  upon 
a  pledge.  —  English  law:  the  "querela"  is  only  accorded  because  of  a  frank 
tenement  and  to  a  man  who  has  possession  "in  dominico,"  and  not  as  a  farm 
tenant  or  pledgee;  but  Bracton,  7,  1,  36,  gives  the  farm  tenant  in  place  of  the 
"querela"  a  "breve  ad  recuperandam  firmam"  against  the  owner  who  puts 
him  out  of  possession  before  the  termination  of  a  lease,  and  against  third 
parties.  The  "vilanus"  cannot  bring  the  "querela":  "Fleta,"  4,  3,  1  and  4; 
Britton,  43. 

*  "Summa,"  95,  11;  "Arr.  Scacc,"  after  Warnk.,  II,  50;  "Etabl.,"  91. 
They  do  not  go  so  far,  however,  as  to  require  a  title  on  the  part  of  the  possessor. 
He  can  hold  the  land  without  force  and  without  any  concealment,  —  for  ex- 

332 


Topic  4]  POSSESSION  [§  270 

spoiled,  the  possessor  by  force  or  by  surreptitiousness  is  not  given 
the  "querela,"  on  principle;  the  despoiled  can  thus  take  back  his 
property  without  running  any  risk.^  At  the  same  time,  it  seems 
that  at  the  expiration  of  a  year  and  a  day  the  defects  of  violence 
and  surreptitiousness  are  wiped  out;  the  "Summa"  does  not  say 
so,  but  the  general  rules  which  it  gives  with  regard  to  the  year 
and  a  day  allow  of  assuming  this.^  Thus  the  "querela"  ceases  for 
the  despoiled  and  passes  to  the  despoiler,  who  can  even  exercise 
it  against  the  "verus  dominus."  Even  before  the  expiration  of  a 
year  and  a  day,  the  English  law,  at  least,  grants  it  to  the  pos- 
sessor by  force  or  surreptitiousness  as  against  third  parties;  the 
"statu  quo,"  although  due  to  violence,  is  maintained  in  the  public 
interest  as  against  him  who  has  no  superior  right.^  Thus  seisin 
appears  in  this  conception  as  a  relative  right,  which  can  be  set 
up  against  certain  people  and  cannot  be  set  up  against  others; 
this  same  relative  character  is  met  with  in  English  ownership 
and  in  the  theory  of  estates. 

§  270.  Assize  of  "  Mort  D'Ancestor  "  and  Writs  of  Entry.  —  The 
English  law  is  complicated  by  a  particular  class  of  possessory  ac- 
tions, "writs  of  entry."  *  The  assize  of  novel  disseisin  assumes 
that  the  dispossessor  and  the  dispossessed  are  both  alive;  as  soon 
as  one  of  them  dies  it  can  no  longer  be  brought.  In  order  to 
remedy  this  inconvenience,  and  not  to  oblige  a  recourse  to  be  had 
at  once  to  the  "brevia  de  recto,"  there  were  invented  for  the  heirs 
of  the  dispossessed  the  assize  of  "  mort  d'ancestor  "  (which  also 
belongs  to  Norman  law,  and  which  is  little  subsequent  in  date  to 
the  assize  of  novel  disseisin),^  and  against  the  assigns  of  the  dis- 

ample,  when  he  has  received  it  from  a  third  party  to  whom  the  "custoa  terras" 
had  transferred  it.  Tenure  at  will  is  an  absolute  and  ineffaceable  defect;  is 
it  the  same  with  force  and  concealment?  Are  not  these  relative  defects? 
Cf.  Bracton,  4,  1,  18  and  28.  —  In  the  "querela  de  antecessoris  saisina"  the 
"recognitio"  affects  the  title  of  the  heir,  his  right  to  the  inheritance: 
"Summa,"  99,  3;  Delisle,  "Jug.  de  I'Echiq.."  nos.  189,  204,  724. 

1  "Summa,"  95,  12,  13  ("vi  et  violentia*')-  —  Cf.  Bracton,  fo.  2106;  "Inst. 
Just.,"  4,  15,  6;  Pollock  and  Maitland,  II,  52. 

2  Ed.  TardiJ,  Table,  see  "Annus." 

3  Pollock  and  Maitland,  II,  49;  Bracton,  4,  1,  27;  cf.  2,  5,  2;  2,  18,  2;  2,  25,  1; 
see  also:  4,  1,  1,  and  3,  2,  13;  Azon,  "Sum.  in  Cod.  de  acq.  poss.,"  7  and  8. 

^  Pollock  and  Maitland,  II,  62:  as  to  the  possessory  character  of  these  writs 
(which  is  disputed);  cf.  Littleton,  385  et  seq.  —  In  time  the  assize  of  novel  dis- 
seisin fell  into  disuse  and  a  variant  of  the  writ  of  entry,  the  writ  in  the  quibus, 
took  its  place:  Pollock  and  Maitland,  II,  79:  2. 

^  The  Assize  of  " Mort d' Ancestor"  (Pollock  and  Maitland,  I,  126)  is  accorded 
to  the  nearest  heir  for  the  reclaiming  of  the  seisin  of  the  deceased  at  the 
moment  of  his  death  against  whoever  may  be  opposed  to  his  having  it: 
Glanville,  13,  3;  Bracton,  fo.  2536.  The  heir  who  has  not  taken  possession  of 
the  property  of  the  deceased  cannot  be  disseised,  properly  speaking;  he  cannot 

333 


§  270]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

possessor,  the  writs  of  entry  "sur  disseisin"  (1205).  The  writs  of 
entry  rest  upon  the  command  to  restore,  by  which  the  procedure 
of  the  petitory  action  for  title  starts  ("Praecipe  quod  reddat"). 
The  prehminary  point  to  this  action  is  that  the  defendant  must  not 
have  acquired  excepting  by  such  a  method  (a  method  which  does 
not  constitute  a  regular  title;  for  example,  he  holds  the  land  of  a 
dispossessor).  The  number  of  writs  of  entry  increased  until  the 
time  of  Bracton,  so  as  fully  to  assure  the  active  and  passive  trans- 
mission of  the  protection  of  possession,  with  this  restriction,  how- 
ever, that  the  third  transfer  could  not  be  exceeded;  after  this  the 
complainant  was  obliged  to- have  recourse  to  the  "brevia  de  recto" 
(writ  of  right). 

§  271.  The  raising  of  the  Hue  and  Cry  ("Haro")^  offers  a  striking 
example  of  the  transformation  of  a  form  of  criminal  procedure 
into  a  possessory  action.^  This  was  originally  merely  an  old 
Germanic  custom  consisting  in  a  call  for  assistance  to  the  neigh- 
bors raised  by  the  victim  of  a  wrong  at  the  very  time  when  this 
latter  was  being  committed.^    Whoever  heard  it  must  run  to  his 

have  the  assize  of  novel  disseisin ;  for  him  has  been  created  the  assize  of  "  mort 
d'ancestor":  Bracton,  fo.  273.  This  action  at  first  is  only  given  to  the  nearest 
relatives,  —  sons,  brothers,  nephews;  such  was  the  strictness  of  the  law  that 
it  was  necessary  to  create  special  writs  for  more  distant  relatives  ("de  avo,  de 
consanguinitate")-  It  is  only  after  1259  that  it  carries  with  it  a  condemnation 
to  pay  damages.  The  "abator"  ("ablator")  could  not  take  possession  of  the 
property  in  the  inheritance  before  the  funeral  took  place,  and  Bracton  allows 
the  heir  a  delay  of  one  year  within  which  to  take  it  away  from  him :  Bracton, 
fo.  160  6;  Britton,  I,  288;  II,  2.  Thus  self-help  was  often  sufficient  for  the  heir. 
The  taking  of  possession  was  facilitated  for  him  ("sola  pedis  posicio  seisinam 
contulit"),  as  well  as  the  acquiring  of  a  personal  seisin.  The  assize  is  given 
against  every  withholder  of  the  inherited  property,  the  "abator"  of  early 
times  or  his  assigns ;  but  it  cannot  be  made  use  of  between  two  claimants  to  the 
inheritance:  Glanville,  13,  11;  Bracton,  fo.  266;  Britton,  II,  115.  CJ.  Pollock 
and  Maitland,  II,  58;  Houard,  "  Anc.  Lois  des  Frang.,"  I,  539. 

^  Bibl.  in  Glasson,  " N.  R.  H.,"  1882,  396.  Let  us  only  cite:  Tanneguy-Sorin, 
"De  Cuiritatione  Normannorum  quam  Haro  appellant,"  1567;  see  Ragueau, 
Merlin,  Houard,  Gouillard,  "Soc.  Antiq.  de  Norm.,"  XXVIII,  1872;  Tiphaigne, 
"Et.  s.  la  CI.  de  Haro"  1880;  Del  Vecchio,  "Sul.  Signif.  d.  grido:  Hare.  n. 
fiere  de  Siampagna,"  1899  ("Arch.  Stol.  Ital.,"  V,  t.  24). 

2  Etymology:  "hara"  equals  here  ("ici,"  old  high  German):  see  Diez. 
Forms,  "haro,"  "harou,"  "hare,"  "hareu."  As  to  the  imaginary  etymology, 
"ha,"  "rou,"  ("help!  RoUo"),  c/.GZasson,  517.  There  is  no  connection  between 
"haro"  and  "harahus"  (a  sacred  object)  of  the  law  of  the  Ripuarians,  "hrao- 
pant"  ("corpus,"  "vinculum")  of  the  law  of  the  Bavarians,  and  "hream" 
(a  cry,  cf.  "ruhm")  of  the  Anglo-Saxon  laws.  Cf.  the  Latin  "hue,"  from 
whence  "huccus"  ("Form.  Turon,"  30),  "hucher."  The  etymology  of  "huz," 
"hue,"  is  uncertain  ("huz"  equals  "foras"?  interjection?):  Du  Cange,  see 
"Huesium."  —  As  to  the  other  cries  which  are  made  use  of,  cf.  Brunner, 
"D.R.G.,"  II,  482. 

^  This  cry  may  be  uttered  also  under  other  circumstances.  On  the  occasion 
of  the  entry  of  Philip-Augustus  into  Normandy,  the  women  cried  "harou"; 
the  heralds  did  the  same  in  order  to  quiet  the  tumult.  The  fairs  in  Champagne 
were  opened  by  the  cry,  "H^rel" 

334 


Topic  4]  POSSESSION  [§  271 

help  and  assist  him  by  force;  ^  the  malefactor  taken  in  a  flagrant 
offense  was  judged  or,  rather  lynched,  by  an  improvised  tribunal 
composed  of  the  neighbors.  In  time,  customs  became  milder  and 
putting  to  death  was  only  authorized  as  an  exception.  Thus  the 
Frankish  laws  show  us  this  malefactor  bound  and  carried  at  once 
before  the  magistrate  in  order  to  be  sentenced.  He  was  only 
killed  in  case  he  offered  resistance.^ 

In  the  same  way  in  the  Norman  law,  the  procedure  in  a  case  of 
flagrant  offense  is  opened  by  raising  the  hue  and  cry.^  "He  who 
has  raised  the  cry  is  placed  '  ipso  facto '  under  the  protection  of  the 
duke  of  Normandy  or  the  lord  justice,^  and  whoever  took  the  lib- 
erty of  ill-treating  him  would  be  guilty  of  having  infringed  this 
protection.  As  to  the  delinquent,  the  fact  of  the  hue  and  cry 
having  been  raised  against  him  makes  him  a  prisoner  of  the  duke 
by  right."  ^  If  he  flees,  he  can  be  hotly  pursued  and  brought  back 
to  the  place  where  the  hue  and  cry  was  raised.  The  hue  and  cry 
was  only  allowed,  according  to  the  "Grand  Coutumier  de  Nor- 
mandie,"  for  a  criminal  cause  (fire,  larceny,  homicide,  etc.);  "he 
w'ho  cries  'haro'  without  apparent  injury  must  pay  a  fine  to  the 
prince  for  so  doing."  ^    This  is  the  "haro  de  playe  et  de  sang" 

1  "L.  Franc.  Cham.,"  37;  "Convent.  Silvac,"  853,  c.  5  ("Capit.,"  II,  272); 
"Cnut,"  II,  29;  Brunner,  op.  cit.,  227.  The  same  obligation  in  India  and 
among  the  Slavs.  C/.  "Summa  Norm.,"  54.  Persons  who  respond  to  the  cry 
of  "haro"  must  serve  as  witnesses  if  need  be. 

2  Other  systems,  to-day  abandoned,  as  to  the  origin  of  the  hue  and  cry. 
To-day  they  are  only  interesting  as  being  curious.  One  may  find  them  in 
Glasson,  p.  429  (for  example,  the  acclamation  of  Rollo,  whom  they  hailed 
with  the  words,  "Ha  Rou!").  Cf.  Gouillard,  op.  cit.,  and  "France  Judic,"  VI 
(creation  of  the  capitularies),  and  especially  Brunner,  loc  cit.  —  The  "haro" 
is  not  peculiar  to  the  Norman  law:  Beaumanoir,  57,  12;  67,  22;  69,  16;  52,  16; 
31,  5  and  14;  "Jostice,"  19,  44,  14;  47,  7;  "T.  A.  C,  Bret.,"  144,  etseq.;  Isam- 
bert,  I,  650;  "Ord.,"  I,  312.  Examples  in  "Reg.  Crim.  de  St.  Martin-des- 
Champs,"  p.  115,  141,  187,  etc.  As  to  the  procedure  in  the  case  of  a  flagrant 
offense,  cf.  Glasson,  pp.  529;  Esmein,  "Hist,  de  la  Proced.  Crim.,"  1880; 
"Sachsenspiegel,"  1,  51,  2;  3,  54,  4;  "Schwabenspiegel,"  298.  —  England,  cj. 
Blackstone,  IV.  21. 

3  In  Jersey  the  complainant  kneels  down  and  says  in  the  presence  of  two 
witnesses,  "Haro,  haro,  haro,  a  I'aide,  mon  prince;  on  mo  fait  tort"  ("Help, 
my  lord;  I  am  being  injured  ").  The  owner  of  a  piece  of  land  who  wished  to 
cry  "haro"  against  the  Jersey  Railway  Company  had  great  difficulty,  because 
of  his  "embonpoint,"  in  kneeling  down  in  order  to  fulfill  the  legal  formalities. 

*  "Summa,"  54;  Glnsso7i,  p.  407:  .since  the  reuniting  of  Normandy  and 
France  under  Philip  Augustus  the  high  lords  justices  have  the  same  jurisdiction 
as  the  duke. 

*  The  "haro"  allowed  one  to  bring  clericals  before  the  secular  tribunals 
(flagrant  offense),  which  were  the  only  ones  authorized  to  inflict  the  punish- 
ment of  death  or  mutilation. 

*  Not  only  was  the  victim  of  the  tort,  but  also  his  relatives,  and  even  any- 
body, authorized  to  cry  "haro " :  thus  the  raising  of  the  hue  and  cry  in  this  way 
came  to  be  a  sort  of  popular  action. 

335 


§  271]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

(wounding).  It  became  rather  rare  as  soon  as  police  protection 
was  better  assured.  "The  right  given  to  each  individual  to  ap- 
point himself  a  public  officer  to  compel  his  neighbor  to  follow  him 
and  to  help  him  by  force,  which  was  very  useful  in  a  society  in 
process  of  formation,  where  the  person  and  the  possessions  of  in- 
dividuals were  each  day  in  real  danger,  is  no  longer  as  necessary 
as  soon  as  there  exists  a  strong  enough  power  to  make  the  public 
peace  respected,  and  it  can  become  a  source  of  abuse  by  placing  the 
property  of  the  individual  at  the  mercy  of  the  first  comer."  The 
officers  charged  with  police  duty  "  perhaps  maintain  that  they  alone 
should  have  the  right  of  proceeding  with  arrests  in  the  case  of  a 
crime;  and,  in  fact,  it  seldom  happens  otherwise." 

The  practice  of  the  hue  and  cry  persisted,  on  the  other  hand,  in 
civil  matters,  where  it  had  been  introduced  at  a  very  early  time.^ 
When  a  man  wishes  "suddenly  to  disseise  and  dispossess  an- 
other, the  latter  cannot  at  that  very  minute  have  recourse  to 
justice;  he  has  no  officer  at  hand  to  put  an  end  to  the  enterprise 
which  will  perhaps  cause  him  an  irremediable  injury;  he  cries 
'haro,'  and  by  this  fact  alone  immediately  puts  an  end  to  the  un- 
dertaking of  his  adversary."  In  fact,  should  the  latter  have  good 
right  on  his  side,  still  for  the  simple  reason  that  he  did  not  obey 
the  "haro,"  he  would  be  subjected  to  a  fine  and  have  to  re-estab- 
lish the  "statu  quo";  only  after  that  could  his  pretensions  be  sub- 
mitted to  the  tribunals.  In  the  case  where  he  submitted  to  the 
summons  resulting  from  the  "haro,"  ^  the  matter  was  carried 
without  delay  ^  before  the  court;  the  two  parties  gave  surety,  or, 
if  they  did  not  do  this,  had  to  stay  in  prison,*  after  which  the  prop- 

*  To  put  it  better,  civil  and  penal  matters  were  not  very  well  distinguished 
formerly.  It  was  an  offense  to  disturb  somebody  in  his  possession  as  well  as 
to  attack  his  person.  —  In  the  "N.  C,  Norm.,"  they  had  recourse  as  much  as 
possible  to  the  services  of  a  sergeant;  it  was  he  who  cried  "haro."  They 
could  proceed  with  it  within  a  very  short  delay,  ordinarily  24  hours.  Women, 
minors  and  other  persons  under  a  disability  could  have  recourse  to  it. 

2  Obligation  to  cease  from  every  undertaking  and  summons  at  law  at  the 
same  time. 

'  Delay  of  a  year  in  the  sixteenth  century  within  which  to  prosecute  one's 
adversary  at  law,  and  the  proceedings  could  not  be  discontinued  for  more 
than  a  year. 

^  Both  parties  had  to  stay  in  prison  in  the  Middle  Ages  in  criminal  matters 
when  there  was  a  formal  accusation;  thus  they  found  themselves  in  the  same 
position,  both  liable,  —  one  to  a  penalty  for  the  offense  if  he  were  found  guilty, 
the  other  to  a  retaliation  if  the  accusation  had  been  unfounded.  These  old 
forms  of  procedure  lasted  as  long  as  there  was  not  any  public  prosecutor  (see  in 
Glasson,  p.  424,  quite  recent  examples,  in  England  foreigners  imprisoned  for 
hapng  lodged  a  complaint  against  a  thief,  whereas  the  thief  remained  out  on 
bail;  the  absence  of  a  public  prosecutor  perpetuated  the  old  customs  in  this 
country).    As  soon  as  people  were  satisfied  with  a  mere  denunciation  the  ac- 

336 


Topic  4]  POSSESSION  [§  272 

erty  was  sequestrated.^  The  final  sentence  condemns  the  loser  to 
pay  damages,  and  to  a  discretionary  penalty:  which  meant  that 
the  procedure  of  "haro"  was  not  without  its  dangers.^  But  its  ad- 
vantages had  made  it  popular;  it  assured  to  everybody  prompt 
and  economical  justice.  Practice  endeavored  to  extend  it;  the 
"haro"  could  be  raised  every  time  that  there  was  an  immediate 
necessity  for  protecting  the  person  or  the  possessions  against  acts 
of  violence,  simply  because  there  was  danger  in  delay  .^  It  was 
even  abused  by  an  endeavor  to  make  a  means  of  extortion  of  it,^ 
and  the  Parliament  had  to  counteract  this  tendency.  It  is  to  be 
noticed  that  the  raising  of  the  hue  and  cry  only  served  to  preserve 
possession.  He  who  had  lost  possession  could  only  recover  it  by 
the  assistance  of  a  writ  of  novel  disseisin.^  The  raising  of  the  hue 
and  cry  is  still  in  use  in  the  Anglo-Norman  Islands.^ 

§  272.  Possessory  Actions  in  the  French  Customary  Law  "^  are, 
as  in  Normandy,  created  by  pubhc  authority^  ("Amtsrecht"), 
which  is  inspired  by  the  idea  of  remedying  the  same  evils  and 

cusation  was  abandoned  and  the  victim  of  the  offense  thus  avoided  being 
imprisoned.  —  Bail  or  imprisonment  are  customs  of  the  old  procedure  which 
have  lasted  in  relation  to  the  raising  of  the  hue  and  cry  in  order  to  prevent  the 
abuse  of  this  proceeding  by  individuals:  Esmein,  "Hist,  de  la  Proced.  Crim.," 
1880. 

1  However,  in  matters  of  ecclesiastical  benefices  ("Cout.  de  Norm.,"  54, 
55),  possession  and  enjoyment  were  put  up  for  sale  by  the  parties  while  the 
proceeding  lasted,  because  it  would  have  been  necessary  to  give  the  sequestra- 
tor the  canonic  appointment  by  means  of  the  authority  of  the  Church,  —  a 
thing  which  would  often  have  been  impossible,  and  would  always  have  been 
rather  impractical. 

2  According  to  the  "Cout.  de  Norm.,"  54,  55,  the  "haro"  is  apphcable  to 
movables  as  well  as  inheritances. 

'  Cf.  French  procedure  by  means  of  a  reference. 

*  Gkisson,  op.  cit.,  p.  417  (Order  of  Jan.  22,  1761).  The  "haro"  was  not 
allowed  against  those  who  were  collecting  dues  of  the  king  ("Ord."  1680  on 
Aids;  Order  of  the  Council  of  May  15,  1725);  but  it  was  possible  outside  of 
these  cases  to  raise  it  against  public  officers  as  well  as  against  individuals,  at 
least  in  cases  where  they  abused  their  powers. 

*  Glasson,  op.  cit.,  pp.  411,  419.  Thus  it  became  necessary  in  this  last  case 
to  begin  by  notifying  his  adversary;  the  extrajudicial  proceeding  of  the 
"haro"  was  more  simple  and  more  effective. 

*  Details  in  Glasson,  p.  540  (bibl.  on  the  law  which  applies  to  it).  —  This 
learned  man  beUeves  that  in  France  the  "haro"  would  be  of  some  use  in 
civil  matters  because  a  reference  does  not  prevent  undertakings  on  the  part 
of  others  and  it  is  not  applied  in  matters  deahng  with  possession;  in  criminal 
matters  pursuit  and  arrest  brought  about  by  public  outcry  still  exist. 

7  P.  de  Fontaines,  c.  32;  "Ohm,"  I,  230;  p.  338;  A.  TardiJ,  "La  Proc6d. 
aux  XHP  et  XIV  s.,"  p.  35;  "Ac.  L6g.  Toulouse,"  I,  24,  69. 

*  The  origin  of  the  actions  for  the  recovery  of  possession  is  neither  in  the 
Roman  law  (De  Parieu,  p.  82,  etc.),  nor  in  the  Norman  law  (the  French  law 
is  like  it,  but  is  not  identical  with  it),  nor  in  the  Feudal  law  and  the  splitting 
up  of  ownership  (the  lord  keeping  the  ownership,  the  holder  only  having  the 
seisin;  it  is  certain  that  vassals  and  copyholders  can  bring  actions  for  real 
property,  and  lords  actions  for  possession,  Beaumanoir.  32,  17). 

337 


§  272]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

based  upon  the  same  police  powers  and  the  same  power  of  "in- 
quisitio"  of  the  king.^  The  procedure  is  not  identical.  In  France 
the  law  was  developed  in  a  more  liberal  manner,  without  being 
subjected  to  such  an  excessive  formalism,  but  the  principal  fun- 
damental rules  in  the  Norman  legislation  are  found  in  the  French 
Customs  during  the  thirteenth  century.  It  is  by  means  of  an  in- 
quest that  the  proceedings  are  carried  on :  the  bailiff  to  whom  the 
complaint  is  made  goes  to  the  locality  with  aldermen  and  other 
"  viri  idonei,"  ascertains  the  fact  of  the  disseisin,  and,  if  there  is  oc- 
casion to  do  so,  causes  the  one  who  has  suffered  the  injury  to  be 
put  back  in  possession.^  Disseisin,  which  is  the  preliminary  con- 
dition of  the  possessory  action,  is  understood  to  apply  to  dispos- 
session and  disturbance;^  or,  rather,  dispossession  is  looked  upon 
simply  as  a  disturbance,  for,  in  considering  himself  as  being  dis- 
turbed in  his  possession,  the  man  who  is  disseised  finds  that  he  is 
preserving  the  advantages  which  possession  confers  upon  him. 
It  is  an  indispensable  condition  that  action  be  taken  within  a 
year  of  the  disseisin,  otherwise  the  latter  would  not  be  recent  * 
("nouvelle").  After  the  establishment  of  the  fact  of  the  recent 
disseisin,  the  object  of  the  inquest  was  to  determine  whether  the 
complainant  was  in  possession  at  the  time  of  the  "no vitas";  this 
came  to  the  same  thing  as  inquiring  whether  he  then  was  culti- 
vating the  land  and  had  the  enjoyment  of  it.^  It  was  not  rigor- 
ously demanded  that  the  possession  should  have  lasted  a  year  and 
a  day;  ^  but  defects  of  uncertainty,^  or  violence  and  clandestine- 

^  Also  the  actions  for  possession  are  at  first  included  within  the  category 
of  cases  under  the  jurisdiction  of  the  crown. 

2  "Olim,"  II,  212,  30.  — Post,  "Procedure." 

3  "Olim,"  I,  930,  19;  II,  232,  18  ("perturbatio  seu  dessaisina");  II,  58, 
15  ("dessaisina"  equals  "impedimentum");  II,  61,  3  ("forcia"  equals  "des- 
saisina"), etc.  "Ass.  de  J^rus.,"  I,  p.  585:  disseisin  and  force  (in  the  latter 
case  one  is  at  the  mercy  of  the  lord). 

*  P.  de  Fontaines,  14,  4;  "Ohm,"  I,  230,  2  (within  a  year  of  the  death  of 
the  deceased);  II,  232,  18;  Beaumanoir,  32,  9,  25.  In  the  "Ass.  de  J^rus.," 
instead  of  the  delay  of  one  year  we  find  the  old  Frankish  delay  of  40  days. 

6  "Olim,"  I,  709,  74;  II,  279,  1.  —  C/.  "Hereditary  Seism":  "Ohm,"  I, 
23,  4;  I,  98,  14;  II,  864,  29. 

«  "Ohm,"  I,  231,  in  1266:  not  one  year;  I,  398,  in  1272:  "fere  per  annum." 
The  "Ord."  of  Philip  Augustus  dealing  with  the  Crusades,  Art.  XI,  caused 
Lauri^re  to  believe  that  the  complaint  based  upon  yearly  possession  had  been 
in  existence  from  the  beginning  of  the  thirteenth  century.  It  is  probable  that 
this  referred  to  the  annual  tenure,  which  we  shall  deal  with  later  on;  as  a  matter 
of  fact,  the  action  contemplated  by  Art.  XI  is  brought  "  coram  dominis  feodo- 
rum  et  censivarum,"  and  not  before  the  king. 

'  The  lord  is  given  the  possessory  action  when  the  serfs  are  disturbed: 
Faber,  "Inst,  de  Int.  Ret.,"  p.  6;  Masuer,  11,  22.  Beaumanoir  refuses  the 
possessory  action  to  the  tenant  against  the  lord,  32,  8,  but  concedes  it  to  the 
farm  tenant  against  the  lessor,  32,  13  (id.,  "Gr.  Cout.  de  Fr,,"  p.  248),  because 

338 


Topic  4]  POSSESSION  [§  273 

ness,  precluded  the  possessory  action.  However,  upon  this  last 
point  a  reservation  must  be  made.  An  action  which  Beaumanoir 
describes  as  of  recent  disseisin,  which  he  could  have  called  an  action 
"spolii,"  or  for  recovery  of  possession,  was  allowed  even  to  the 
man  who  only*  had  a  defective  seisin  which  was  of  short  duration; 
he  should  be  "reseised,"  says  this  jurisconsult,  "before  anything 
else  is  done,"  excepting  to  permit  his  adversary,  if  he  has  a  year's 
possession,  to  take  back  the  thing  from  him  by  means  of  a  com- 
plaint.^ 

§  273.  Beaumanoir  speaks  repeatedly  of  a  royal  ordinance 
which,  as  far  as  disseisin  is  concerned,  would  have  established  a 
"new  means  of  executing  justice."  It  is  hard  to  tell  just  what 
royal  decree  he  is  here  alluding  to.^  Whichever  one  it  may  be,  it 
does  not  seem  to  have  modified  the  theory  of  possession,  for  the 
explanations  of  this  jurisconsult  agree  with  the  decisions  con- 
tained in  the  Register  of  Parliament;  at  the  same  time,  whereas 
the  Registers  of  Parliament  are  not  very  precise  on  this  subject, 
he  clearly  demands  the  possession  of  a  year  and  a  day;  ^  further- 

the  mere  lease  does  not  imply  any  feudal  relation.  With  regard  to  the  rule 
that  the  subject  can  bring  no  complaint  against  his  lord,  cf.  Masuer,  11,  16, 
68.     The  king  never  pleads  "dispossessed":  Loysel,  759,  878. 

1  Beaumanoir,  32,  23  {cf.  15).  The  recovery  of  possession  serves  as  a 
preliminary  to  the  complaint  (example:  A  disseises  B,  who  in  his  turn  dis- 
possesses A;  A  has  himself  reseised  by  B;  and  then  B,  who  has  possession  for 
a  year,  takes  back  the  thing  by  means  of  the  complaint);  Bruns,  p.  361.  Cf. 
Aluzet,  p.  155;  De  Parieu,  p.  115;  Heusler,  II,  65.  —  Cf.  "Olim,"  I,  316,  no.  3; 
"Et.  de  St.  Louis,"  I,  96.  On  the  "exceptio  spolii,"  cf.  P.  de  Fontaines,  pp.  271, 
and  280,  n.  3. 

2  The  Ordinance  has  been  lost  track  of.  It  is  neither  the  Ordinance  which 
abolishes  the  duel  at  law  and  substitutes  therefor  the  inquest  nor  the  regulat- 
ing Order  of  Jan.  7,  1278,  giving  jurisdiction  to  the  bailiffs  rather  than  to 
parliament  because  of  the  urgent  nature  of  cases  for  the  recovery  of  posses- 
sion. {Viollet,  "Et.  de  St.  Louis,"  I,  340);  "Ord.,"  II,  542;  Langlois,  "Phil- 
ippe III,"  231.  According  to  the  latter,  the  Ordinance  which  was  lost  was 
concerned:  (A)  with  novel  disseisins:  (a)  procedure,  delays  of  adjournment 
(15  days  for  gentlemen,  1  day  for  commoners;  no  revocation,  but  a  day  for 
view) ;  (6)  upholding  the  man  who  has  the  last  peaceable  seisin  of  a  year  and 
a  day;  (c)  a  fine  of  60  sous  for  the  defeated  party;  (d)  he  who  fails  when  re- 
claiming the  seisin  should  within  a  year  and  a  day  bring  the  action  for  real 
property  under  penalty  of  losing  all  rights  over  the  property  (on  this  last 
point,  however,  cf.  Chnmpeaux,  p.  426);  (B)  counter  pledging  {Beaumanoir,  32, 
28;  cf.  "Olim,"  II,  178,  nos.  23,  24),  which  it  prohibited  (the  gentleman  who 
had  something  taken  away  from  him  did  not  limit  himself  to  taking  back  this 
thing  from  the  man  who  had  despoiled  him;  he  took  from  the  latter  every- 
thing that  he  could). 

'  Beaumanoir,  32,  2,  3,  7  (peaceable  possession  for  a  vear  and  a  day  before 
the  "dejectio").  Is  not  the  delay  of  a  year  and  a  day  only  the  abstract 
regulating  of  the  concrete  period  of  time  adopted  by  the  Norman  law?  Dis- 
seisin ordinarily  taking  place  in  the  month  of  August,  —  that  is  to  say,  at  the 
time  of  the  harvest,  —  inquiry  is  made  as  to  who  gathered  the  harvest  the 
previous  August;  this  is  pretty  nearly  the  same  thing  as  demanding  a  year  of 

339 


§  273]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

more,  it  seems  that  he  admits  of  three  kinds  of  possessory  actions 
instead  of  one:  "claims"  ("clamor")  or  "complaints"  of  force, 
novel  disseisin,  and  recent  disturbance;  but  these  " claims " undergo 
the  same  procedure,  and  are  accorded  under  identical  conditions; 
between  them  there  is  no  difference  excepting  one  of  form;  the 
innovation,  if  there  is  any,  is  an  entirely  superficial  one.^ 

§  274.  Fourteenth  and  Fifteenth  Centuries.^  —  The  posses- 
sory actions  are  classified  in  the  following  way,  as  they  gradually 
approach  the  petitory  action  for  title:  1st,  recovery  of  possession; 
2d,  complaint  in  case  of  seisin  and  trespass  ("casus  novitatis"); 
3d,  an  action  of  simple  seisin.^  This  last  alone  constitutes  an  in- 
novation. In  every  other  respect  it  was  rather  a  regulation  or 
development  of  already  existing  rules.  —  Recovery  of  possession.* 
The  man  in  possession  who  is  disturbed  or  despoiled  is  always 
authorized  to  repel  force  by  force;  but  he  should  act  "in  conti- 
nenti";  once  he  has  been  definitely  dispossessed,  he  is  forbidden  to 
reinstate  himself  in  possession  by  means  of  violence.^  The  least 
he  is  accorded,  in  imitation  of  the  Romano-canon  law,  is  an 
action  of  restitution,  the  action  for  recovery  of  possession.^    As  this 

possession.  "Accessio  Possessionum,"  "Gr.  Cout.  de  Fr.,"  pp.  231,  505,  748; 
Loysel,  749;  Arr.  du  Pari,  of  1373  cited  by  H.  de  Pansey,  "Comp6t.  des  Juges 
de  Paix,"  ch.  41.  Cf.  De  Parieu,  p.  116;  Heusler,  p.  407;  "Cout.  d'Anjou" 
of  1411,  Art.  292  (Beautemps-Beaupre,  I,  566). 

1  Tiie  distinction  is  made  in  the  regulating  Order  of  1278.  Cf.  "Et.  de  St. 
Louis,"  I,  69.  J.  d'Ibelin,  64,  contrasts  force  with  disseisin:  "Cout.  de 
Touraine  et  d'Anjou":  if  there  be  disseisin  or  force  there  is  occasion  for  the 
procedure  of  pledging  or  counter  pledging:  in  case  of  a  mere  disturbance  the 
object  in  litigation  is  sequestrated  in  order  to  prevent  acts  of  violence  without 
there  being  any  need  of  giving  a  pledge:  Ragueau,  "Gloss.,"  see  "Appl^ge- 
ment."  But  the  procedure  of  the  "  Appl^gement "  disappeared  at  an  early 
time  from  the  Customary  common  law. 

2  A.  Tardif,  "La  Procedure  aux  Xlir  et  XIV^  s.,"  p.  35;  H.  de  Pansey. 
"Comp^t.  des  Juges  de  Paix,"  c.  31  etseq.,  "Confer,  des  Coutumes  de  Gu^nois,'' 
Table,  see  "Complainte,"  etc.;  Rebujfe,  "Tr.  de  Mat.  Possess." 

3  On  the  respective  parts  played  by  these  actions,  cf.  Viollet,  p.  584. 

*  Recovery  of  possession  ("r^integrande"),  that  is  to  say,  an  action  based 
upon  the  Canon  "Redintegranda";  a  word  which  does  not  make  its  appear- 
ance before  the  fourteenth  century.  See  Godefroy.  Under  the  name  of 
"actio  spolii"  it  is  admitted  in  Italy  and  in  Germany,  where  there  is  a  dispute 
as  to  whether  it  belongs  to  the  withholder  ("Cod.  Maxim.  Bav.,"  II,  5,  11; 
"Land.  Pruss.,"  I,  7,  146),  and  whether  it  is  given  against  a  third-party  pur- 
chaser: "Et.  de  St.  Louis,"  I,  65;  II,  7;  "T.  A.  C,  Bret.,"  259;  Ragueau,  see 
"Gloss." 

6  Beaumanoir,  32,  26;  P.  de  Fontaines,  p.  264. 

8  "Charte  de  Roye,'^  1183  ("Ord.,"  XI,  229);  "Et.  de  St.  Louis,"  II,  7. 
Cf.  P.  de  Fontaines;  ^'Artois,"  8,  1;  "Ord.,"  1256,  26;  P.  de  Fontaines,  264.  It 
does  not  occupy  a  very  important  place  in  the  Customs  (perhaps  because  the 
man  despoiled  prefers  not  to  say  that  he  is  disseised):  "Gr.  Cout.,"  p.  2.39; 
(reinstatement  before  anything  else  takes  place):  Beaumanoir,  32,  23.  Cf. 
Use  of  the  safeguard:  Masuer,  U,  5;  Gui  Pape,  q.  56,  418. 

340 


Topic  4]  POSSESSION  [§  274 

action  is  intended  to  restrain  acts  of  violence,  it  is  allowed  every 
man  who  has  possession,  even  to  the  thief  (excepting  that  he  will 
afterwards  be  hanged).^  For  the  sole  reason  that  one  has  been 
disseised,  one  is  given  this  right.  No  other  condition  is  required.^ 
But  nothing  prevents  the  man  who  is  defeated  in  the  action 
for  recovery  of  possession  from  getting  back  the  thing  by  means  of 
the  complaint;  this  happens  often  enough  for  one  to  be  able  to 
look  upon  the  action  for  recovery  of  possession  as  a  procedure 
preliininary  to  the  complaint;  it  is  to  the  latter  what  the  com- 
plaint is  to  the  action  for  real  property.^  The  Romanists  termed 
it  a  prohibition  "  recuperandse  possessionis  clamor,"  whereas 
the  complaint  would  be  the  prohibition  "retinendae  possessionis 
clamor";^  this  is  not  absolutely  accurate,  because  the  complaint 
serves  at  the  same  time  for  the  recovery  and  for  the  retaining 
of  possession.  In  reality,  it  is  less  a  possessory  action  than 
a  penal  action  directed  against  the  despoiler,^  and  having,  as 

1  Beaumanoir,  loc.  cit.  The  farm  tenant  can  have  it  against  the  lessor 
who  expels  him.  But  we  do  not  think  that  one  can  say  the  same  thing  with 
regard  to  the  possessor  "alieno  nomine"  as  a  general  rule.  The  farm  tenant 
is  in  a  special  position,  just  as  the  pledgor;  it  is  easy  to  understand  that  in  a 
period  of  violence  a  necessity  to  protect  him  by  means  of  some  action  should 
be  made  manifest:  Masuer,  XI,  49.  On  the  other  hand,  the  mere  overseer, 
the  workman  for  wages,  etc.,  who  possesses  something  has  no  redress  if  it  is 
taken  back  from  him.  —  With  this  exception,  every  withholder  or  possessor 
has  a  right  to  the  recovery  of  possession,  whether  he  be  in  good  or  bad  faith, 
whether  liis  possession  has  lasted  for  a  short  or  a  long  time;  and  he  can  even 
oppose  it  to  the  true  owner.  Does  it  affect  third-party  purchasers  or  mere 
despoilers?  The  canon  law  had  made  of  it  a  real  action.  Ciijas  (cited  by 
Ragiiemi)  does  not  express  himself  on  this  point.  The  recovery  of  possession 
applied  to  movables  as  well  as  immovables.  The  jurisconsults  of  the  thirteenth 
century  interpreted  the  L.  14,  D.,  "unde  vi,"  as  though  it  had  spoken  of 
movables  in  general,  and  not  merely  of  the  tilings  accessory  to  the  piece  of 
land. 

2  Must  one  have  been  disseised  by  force  in  order  to  have  a  right  to  the 
recovery  of  possession?  or  is  it  sufficient  if  there  has  merely  been  a  dispos- 
session? And  by  this  must  we  understand  an  absolute  dispossession  or  a 
mere  disturbance?  Cf.  the  interdict,  "momentariie  possessionis."  Cujas 
calls  it  recovery  of  possession:  "Obs.,"  19,  16.  —  Pasquier,  "Inst.,"  4,  8,  dis- 
tinguishes it,  on  the  other  hand,  from  the  complaint  in  that  it  assumes  force. 

^  Beaumanoir,  loc.  cit.;  "Olim,"  I,  316,  3.  In  the  action  for  the  recovery 
of  possession  a  question  which  is  a  preliminary  of  the  action  for  possession, 
properly  so  called,  is  settled:  it  is  determined  who  shall  be  the  defendant  in 
the  action  for  possession.  Also  this  action  has  been  compared  with  the 
Italian  "Summariissimum."  Cf.  "Gloss."  by  Ragueau;  H.  de  Parisey, 
"Comp6t.,"  ch.  .50  and  .52. 

4  Bucherellus  on  the  "Inst.,"  4,  1.5;  "Ord."  of  Charles  VIII,  1498,  Arts.  49 
and  ,58;  of  Francis  I,  1.539,  Art.  61  et  seq.;  Imbert,  "Pratique,"  I,  17;  "Inst, 
for.,"  17;  Masuer,  XI,  26;  De  Parieu,  p.  133. 

*  The  "Ord."  of  1667,  t.  18,  in  dealing  at  the  same  time  with  the  complaint 
and  the  action  for  recovery  of  possession,  gave  the  impression  that  they  were 
not  distinguished  from  each  other.  This  is  what  Ferribre  says,  see  "Rcint6- 
grande":  "the  recovery  of  possession  is  not  distinguished  from  the  complaint; 

341 


§  274]  OWNERSHIP   AND    REAL    RIGHTS  [Chap.  II 

psnal  actions  ordinarily  do,  a  short  duration,  —  that  of  a  year 
and  a  day.^ 

§  275.  The  Complaint  in  Cases  of  Seisin  and  Trespass  ^  is  sub- 
stituted ^  for  the  "clamor  dissaisinas"  (or  for  the  three  "claims" 
of  disseisin,  of  force,  and  of  disturbance,  assuming  that  this  dis- 
tinction had  a  place  in  practice).'*  It  is  given  to  the  man  who  has 
been  in  possession  peacefully  and  publicly  and  in  his  own  name 
for  a  year  and  a  day  ^  before  the  disturbance  or  the  dispossession;  ^ 

but  it  is  included  within  the  latter  in  the  case  where  there  has  been  despoiling 
and  not  a  mere  disturbance  .  .  .  (the  complainant)  moves  that  he  be  restored 
and  reinstated  ('reintegre')  in  his  possession."  He  requires  that  the  complain- 
ant be  in 'possession  for  a  year,  and  in  peaceable  possession,  etc.  (H.  de  Pansey, 
contra).  The  result  of  this  doctrine  taught  by  Ferriere  was  that  in  his  time 
there  was  no  more  thought  of  recovery  of  possession  and  it  was  not  made  use 
of.  Cf.  Bourjon,  II,  p.  512;  Merlin,  "Rep.,"  see  "Complainte."  They  said 
that  the  recovery  of  possession  —  that  is  to  say,  reinstatement  —  could  be 
sued  for  civilly  (complaint)  or  by  an  exceptional  action  (criminal);  when  one 
had  chosen  the  civil  action  it  was  no  longer  possible  to  proceed  by  means  of  the 
criminal  action,  "Ord.,"  1667,  18,  2.  —  Pothier,  no.  84  (cf.  124),  is  as  categorical 
as  Ferriere.  Cf.,  however,  Argou,  I,  p.  242;  Pasquier,  "Inst.,"  48.  —  Cf. 
Civil  Code,  2060  (physical  compulsion  in  case  of  recovery  of  possession). 
Law  of  May  25,  1838,  Art.  6. 

1  From  tliis  there  would  also  result  the  consequence  that  recovery  of  pos- 
session is  a  personal  action,  whereas  the  complaint  is  a  real  action.  The  ques- 
tion of  knowing  the  nature  of  the  recovery  of  possession  is  still  unsettled,  and 
one  asks  if  it  is  not  subject  to  the  same  conditions  as  the  complaint:  Gar  sonnet, 
I,  p.  592. 

2  Our  old  authors  distinguish  between  the  complaint  in  matters  of  eccle- 
siastical benefices,  which  had  its  own  special  rules,  and  the  complaint  in  profane 
matters:  Guyot,  see  "Rep." 

'  The  "Gr.  Cout.,"  p.  253,  seems  to  attribute  this  simplification  to  Simon 
de  Bucy,  President  of  the  Parliament  of  Paris  in  1358;  he  must  have  thought  of 
the  case  where  there  was  trespass,  —  that  is  to  say,  omitted  all  mention  of  dis- 
seisin, as  we  shall  see  later  on.  But  the  modification  took  place  previous  to 
his  time.  (As  we  may  infer  from  the  "Stil.  Pari.,"  which  already  deals  with 
the  "casus  novitatis.")  Cf.  Lauriere,  "Ten.  de  5  Ans,"  p.  82;  "Cout.  de 
Paris,"  I,  257  (ed.  1777);  "Paris,"  96. 

*  "Touraine"  (I,  23,  "A.C.");  "Poitou,"  385;  "Anjou,"  168;  "Maine," 
188;  "Bretagne,"  27:  the  complaint  is  called  procedure  of  pledging  or  counter- 
pledging:  Glasson,  "N.  R.  H.,"  1890,  167;  Mortet,  see  "Gr.  Encycl.";  Ragueau, 
see  "Gloss."  (the  complainant  gives  surety  or  a  pledge  to  reimburse  his  adver- 
sary if  the  complaint  has  been  erroneously  brought.  It  is  assumed  that  he 
admits  liimself  to  be  disseised,  or  that  it  is  an  heir  who  has  not  yet  taken  pos- 
session). This  due  course  of  law  was  applied  to  movables  as  well  as  immov- 
ables. Unless  there  were  a  pledge-giving  the  thing  was  not  sequestrated,  which 
was  a  different  matter  from  the  case  of  disseisin.  In  the  common  law  this  dif- 
iGrGiiCG  clisiir)i^!^G3(rG(l 

6  "Stil.  Pari,"  18,  11  and  22;  "Cout.  Not.,"  181;  "Const,  du  Chat.,"  53; 
Loysel,  768;  Aubert,  p.  193.  Joining  of  Possessions:  Loysel,  745.  The  name  of 
seisin  is  reserved  for  the  possession  of  a  year  and  a  day;  from  thence  comes  the 
expression,  "complaint  in  case  of  seisin":  "Gr.  Cout.,"  p.  232.  Cf.  "Arrest. 
Querel.  de  Nov.  Dissais.,"  1496. 

*  Masuer,  XI,  5,  26:  the  man  who  fears  that  he  will  be  disturbed  may  ob- 
tain from  the  judge  protection,  —  that  is  to  say,  a  prohibition  for  anybody  to 
disturb  him  or  hinder  him  under  a  certain  penalty  (prohibition  of  simple  ban). 
Protection  is  accorded  to  the  mere  lessee  or  produce-sharing  farmer  (XI,  49). 

342 


Topic  4]  POSSESSION  [§  275 

in  this  last  case  he  is  considered  as  not  having  ceased  to  be  in 
possession;  also,  he  must  be  careful  not  to  say  that  he  is  disseised; 
this  would  be  a  contradiction  in  terms.^  The  action  can  only  be 
brought  within  a  year  and  a  day  after  the  disturbance.^  More- 
over, the  doctrine  of  the  jurisconsults  of  the  fourteenth  and  fif- 
teenth centuries  has  mingled  with  it  quite  a  good  deal  of  Roman 
law;  for  them  the  complaint  is  the  "uti  possidetis"^  prohibition 
(so  it  is  inapplicable  to  movables),^  it  is  a  double  action,^  it  as- 
sumes that  possession  has  not  been  taken  by  force,  clandestinely, 
or  by  request;  it  is  refused  to  the  farm  tenant  because  he  has  no 
"jus  in  re,"  but  a  "jus  ad  rem."  From  these  Roman  formulae 
practice  deduced  the  following  rules:  the  seisin  is  refused  to  the 
possessor  "alieno  nomine"  and  the  farm  tenant  himself;^  but 
there  is  no  need  of  a  good  title  in  order  to  have  the  seisin;  ^  the 
complaint  is  given  not  only  against  the  despoiler,  but  against  every 
possessor,  in  good  or  bad  faith;  in  other  words,  the  action  is 

—  Mere  threats  are  not  sufficient  to  allow  of  the  complaint:  "Gr.  Gout.," 
p.  238. 

1  He  who  admits  that  he  no  longer  has  the  seisin  is  taken  at  his  word;  he 
finds  himself  reduced  to  the  action  for  real  property.  On  the  other  hand,  in  still 
declaring  himself  to  be  in  possession  in  spite  of  a  "dejectio,"  he  keeps  the  right 
to  bring  the  possessory  action:  P.  de  Fontaines,  21,  50;  "Et.  deSt.  Louis,"  2,  7  ; 
"Anc.  Us.  d'Anjou,"  §  90,  107;  "L.  d.  Droiz,"  47,  74,  88,  etc.;  Beautnanoir,  44, 
51;  J.  Faber,  "Ad  Inst.,"  "de  Int.,"  §  "Retin.,"  no.  13  ("teipsumexcluderes"); 
"Stil.  Pari.,"  1,  18,  3;  "Gr.  Gout.,"  p.  247  (each  party  should  declare  himself 
seised),  250;  Loysel,  750.  —  P.  de  Fontaines  points  out  the  conflict  which  exists 
between  this  rule  and  the  current  maxim,  "One  should  not  plead  disseised," 

—  a  common  translation  of  the  "exceptio  spolii"  of  the  canon  law.  It  was 
found  in  practice  that  it  was  an  advantage  to  do  away  with  the  latter.  Thus 
is  to  be  accounted  for  the  fact  that  thenceforth  there  is  no  mention  made  of  any 
complaint  of  disseisin.  Tardif,  p.  38,  thinks  that  the  idea  that  possession  is 
kept  "animo"  was  borrowed  from  the  Roman  law. 

2  Desmares,  84.  However,  even  after  this  delay  the  king  may  grant  letters 
of  relief:  "Gr.  Gout.,"  p.  238.  Forty  days,  according  to  the  "Ass.  de  Jerus." 
Cf.  as  to  cases  of  absence  and  minority:  "Summa  Norm.,"  2,  30,  34. 

3  "Gr.  Gout.,"  p.  232;  "Et.  de  St.  Louis,"  ed.  Viollet,  III,  369;  cf.  1, 112, 
338.  —  Prohibition  "retinendse  poss.  c":  this  is  an  action  based  upon  a  mere 
disturbance,  whereas  the  recovery  of  possession  assumed  an  absolute  putting 
out  of  possession.  This  opinion  is  as  inaccurate  as  that  of  Pasquier,  wliich  is 
that  one  has  the  complaint  for  dispossession  without  violence  and  the  recovery 
of  possession  for  dispossession  by  force.  To  the  contrary,  cf.  "Et.  de  St. 
Louis,"  I,  69;  Beaumanoir,  c.  32;  Beautemps-Beaupre,  I,  274. 

*  "Gr.  Gout.,"  p.  239;  Masuer,  XI,  15.  Cf.  Beaumanoir,  32,  15;  38,  2; 
"Olim,"  I,  489;  "Paris"  97.  — Loysel,  754,  755,  756  (residuary  inheritance 
of  movables,  etc.);  "Ord.,"  1667,  18,  1.  On  the  admission:  Boutaric,  I,  31;  Im- 
bert,  "Prat.,"  I,  17.  The  complaint  applies  to  incorporeal  things:  Masuer,  11, 
18;  Garsonnet,  I,  372;  Heusler,  "Gew.,"  p.  278. 

5  "  Gr.  Gout.,"  p.  247;  "  Stil.  Pari.,"  18,  3,  8.  Each  one  says  that  he  has  been 
disturbed. 

6  "Gr.  Gout.,"  pp.  231,  232,  248,  256;  cf.  p.  195;  "StU.  Pari.,"  18,  23,  24; 
Loysel,  749;  Pasquier,  "Inst.,"  p.  768. 

^  "Gr.  Gout.,"  p.  232. 

343 


§  275]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

real.^  This  transformation  of  the  "clamor  dissaisinse "  into  a 
real  action,  which  is  contrary  to  the  Roman  precedents,  is 
to  be  accounted  for  in  that  it  rested  upon  a  year's  possession, 
which  was  not  defective ;  2  it  is  an  ownership  on  a  small 
scale;  it  is  reputed  lawful  in  itself,  says  the  "Grand  Coutumier 
de  France." 

§  276.  The  Procedure  of  the  Complaint  ^  for  a  long  time  was 
opened  by  obtaining  letters  from  the  king  (analogous  to  the 
Norman  writ) ;  ^  it  was  summary  (no  periods  of  notice,  view,  ad- 
vice, etc.),^  at  least  with  respect  to  the  action  for  petitory  title, 
but,  little  by  little,  it  became  unencumbered  with  incidents  (Or- 

1  "Gr.  Cout.,"  p.  494;  all  real  actions  are  based  upon  recent  disturbance 
of  seisin  or  on  previously  existing  impediments  (allusion  to  the  action  of  simple 
seisin)  or  they  are  proprietary  actions:  Boutaric,  II,  27;  Pasquier,  "Inst.," 
p.  768.  Cf.,  however,  to  the  contrary,  Pothier,  "Int.  a  la  Cout.  d'Orleans," 
no.  118  (personal  actions  springing  out  of  a  tort). 

2  Cf.,  however,  "Stil.  Pari.,"  18,  23:  "reus  dicat,  non  potes  dicere  te  saisi- 
tum  quia  me  de  possessione  per  violentiam  dejecisti."  It  seems  to  result  from 
this  that  violence  was  a  relative  defect.  Nor  is  it  a  perpetual  defect,  any 
more  than  is  clandestineness;  peaceful  and  public  possession  for  a  year,  what- 
ever its  origin  may  be,  gives  one  a  right  to  the  complaint. 

3  Formula:  "Gr.  Cout.,"  pp.  495,  505,  513;  "L.  d.  Droiz,"  739,  742;  Boutaric, 
I,  40  and  77;  "Paris,"  I,  256,  268;  Warnkoenig,  II,  319;  Varin,  "Arch.  leg.  de 
Reims,"  I,  794.  —  As  to  the  procedure,  cf.  "Stil.  Pari.,"  18;  "Ord.,"  1347 
(II,  266);  Isamh&rt,  IV,  689,  535;  Auher,  ('Hist,  du  Pari,  de  Paris,  1250-1515," 
1894,  II,  p.  192. 

^  As  to  this  procedure,  cf.  Schwalbach,  p.  134.  The  procedure  in  the  Parlia- 
ment of  Flanders  in  1789  still  kept  many  of  the  characteristics  of  the  old  law: 
see  Guyot.  Royal  letters  delivered  in  Parliament  and  containing  a  command 
for  the  bailiff  to  give  the  property  back,  or,  if  he  were  resisted,  to  forcibly 
take  possession  of  it.  A  sergeant  was  dispatched  by  the  bailiff  to  summon  the 
parties  to  come  to  the  locahty;  "ad  veutam,"  in  order  to  view  the  property  in 
litigation  (coming  of  the  judge,  coming  to  this  place).  Opposition  by  the  de- 
fendant. The  property  was  then  sequestrated:  "Gr.  Cout.,"  pp.  235,  240. 
The  first  defect  appearing  causes  one  to  lose  the  action  of  trespass.  —  This 
procedure  fell  into  disuse;  instead  of  recovery  by  means  of  the  complaint  one 
proceeded  by  the  mere  adjournment.  "Gr.  Cout.  de  Fr.,"  p.  235;  there  were 
two  methods,  —  complaint  and  mere  adjournment  (comparison) :  Masuer,  I, 
34  {id.,  1600);  XI,  47.  Cf.  Lauriere,  on  Lotjsel,  739;  ImbeH,  "Inst,  for.,"  I.— 
It  was  no  doubt  the  making  use  of  the  complaint  that  carried  with  it  the  pay- 
ment of  a  fine:  Loysel,  753  (and  citations). 

^  In  order  to  proceed  more  rapidly  and  not  out  of  fear  that  the  year  and  a 
day  granted  one  within  which  to  act  might  have  expired:  "Stil.  Pari.,"  10,  3 
and  4;  18,  18;  "Gr.  Cout.,"  p.  235;  Boutaric,  p.  195;  "Stil.  Pari.,"  18,  20;  12, 
19  and  30.  The  defendant  "plaide  a  toutes  fins,"  —  that  is  to  say,  sets  forth 
all  his  defences  at  once:  Manner,  XI,  37.  The  "Style  des  Req.  du  Palais," 
ch.  14,  outlines  this  procedure :  Only  one  gi\'ing  of  notice  within  a  week  after 
the  order  for  examination  of  the  facts  at  issue,  one  week  to  hear  witnesses  and 
pronounce  a  decree  of  provisional  possession,  one  week  to  pass  upon  the  facts, 
etc.  The  rapidity  of  the  progress  of  this  procedure  is  entirely  relative.  Its 
delays  account  for  the  importance  of  the  decree  of  provisional  possession. 
On  the  other  hand,  it  is  not  without  some  formalism ;  if  a  man  says  that  he  is 
disseised  he  gives  up  all  right  to  the  complaint;  if  he  simply  says  that  he  is 
hindered  in  his  seisin,  the  defendant  does  not  have  to  reply:  "Gr.  Cout.," 
pp.  245,  247;  "Stil.  Pari.,"  18,  3  and  17,  27;  Desmares,  300. 

344 


Topic  4]  POSSESSION  [§  276 

dinance  of  1347:  "lites  maxime  breves  efficiuntur  immortales"). 
The  property  in  litigation  was  first  placed  in  the  hand  of  the  king 
("  ad  manum  regis  positum,"  in  sequestration)  so  as  to  prevent  the 
parties  getting  hold  of  it,  and  to  avoid  the  doing  of  acts  by  the 
defendant  which  would  be  prejudicial  to  the  demandant  who 
should  win  his  cause.^  The  judges,  however,  had  the  power  of 
confiding  ("recredentia,"  provisional  possession)  the  property  to 
one  of  the  parties,  provided  surety  were  given.^  Little  by  little,  a 
fixed  judicial  law  came  to  be  established,  exact  rules  covering 
the  case  in  which  provisional  possession  ought  to  be  granted  or 
refused;  ^  thus  it  was  adjudged  to  the  party  who  invoked  the  com- 
mon law  and  not  a  privilege,  for  the  party  who  presented  a  written 
title,  etc.^  From  the  very  beginning  of  the  proceeding  it  was  not  a 
rare  thing  for  the  demandant  thus  to  recover  by  way  of  provisional 
title  the  possession  which  he  had  lost.  The  possessory  proceeding 
became  divided:  ^  1st.  Into  provisional  possession,  a  preliminary 
stage  which  was  in  reality  short  and  summary,^  and  which  thereby 
acquired  a  special  importance  and  passed  almost  to  the  rank  of  an 

^  Already  in  the  Norman  law:  "Gr.  Gout,  de  Fr.,"  p.  240:  "ne  partes  veniant 
ad  arma";  Lauriere,  on  Loysel,  768,  769;  Masuer,  XI,  17;  Fontanon,  on  Masuer, 
ed.  1660,  p.  204,  maintains  that  the  use  of  sequestration  at  the  beginning  of 
the  procedure  was  done  away  with;  it  could  no  longer  take  place  excepting  with 
full  information. 

^  A  request  "ut  manus  regis  amoveatur"  is  left  to  the  decision  of  the  judge 
in  the  beginning:  "Et.  de  St.  Louis,"  II,  5  and  6;  "Cout.  Not.,"  123;  Desmares, 
3;  "Olim,"  I,  255,  11;  Ragueau,  "Gloss.,"  see  "Recreance"  (and  cit.);  "Stil. 
Pari.,"  18,  7-9  (the  provisional  possession  is  granted  to  the  complainant  if 
the  defendant  does  not  give  some  good  reason  for  his  defense;  if  this  is  not  so 
the  thing  remains  sequestrated);  "Pari,  au  B.,"  p.  168.  —  Cf.  "Gr.  Cout.  de 
Fr.,"  p.  233. 

^  Following  a  hasty  examination,  —  the  hearing  of  a  few  witnesses  and  ex- 
amination of  the  proofs  {Boutaric,  p.  195;  Masuer,  XI,  30;  "Ord.,"  Apr., 
1454,  70-75;  1493,  58),  —  the  provisional  possession  was  granted  by  order  of 
parliament,  with  an  obligation  to  furnish  surety  to  pay  over  the  income  (some- 
times a  dispensation).  Loysel,  767,  "If  the  person  put  in  provisional  possession 
does  not  have  his  possession  confirmed,  he  has  to  give  up  and  restore  the  issues." 
Masuer,  XI,  32;  "Ord.,"  1667,  15,  14;  Boutaric,  p.  198;  Papon,  8,  11.  If  the  good 
faith  of  the  judges  had  been  abused  the  provisional  possession  could  be  annulled. 

*  "Stil.  Pari.,"  18,  11;  Boutaric,  p.  193;  "Gr.  Cout.,"  pp.  250,  251;  Desmnres, 
32;  Masuer,  vol.  9.  It  is  refused  if  it  would  cause  an  irreparable  injury,  if  the  king 
is  a  i)arty  {Loysel,  768),  and  if  the  jurisdiction  is  at  issue:  Loysel,  766;  Schwal- 
bach,  p.  140. 

^  Without  there  being,  however,  two  separate  instances:  "Ord.,"  1539,  59; 
Boutaric,  p.  109  (ed.  1603).  _ 

*  A  sort  of  "Summariissimum"  established  as  a  reaction  against  the  slow- 
ness of  procedure.  Cf.  recovery  of  possession  where  the  complainant  bases  his 
argument  upon  the  despoiling,  whereas  in  the  provisional  possession  he  pretends 
to  be  in  possession  and  bases  his  argument  u{)on  his  j)robabIe  possession.  On 
the  question  of  knowing  whether  the  provisional  possession  and  sequestra- 
tion are  mere  means  of  investigation  or  true  possessory  actions,  see  Law  of 
May  25,  1838,  Art.  6,  1. 

345 


§  276]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

action.    2d,   Into  fully  confirmed  possession/  or  final  judgment 
which  was  not  always  arrived  at.^ 

§  277.  The  Same.  —  The  period  of  a  year  and  a  day  ^  often  re- 
curs in  possessory  matters;  it  is  necessary  to  insist  upon  it.  As 
many  as  four  applications  of  this  are  to  be  found:  1st.  The  year's 
tenure  of  the  municipal  statutes  of  the  twelfth  century,  carrying 
with  it,  as  it  seems,  the  acquisition  of  the  ownership.  2d.  A  year's 
possession  before  the  disturbance  or  the  disseisin  is  a  necessary 
condition  before  the  complaint  can  be  made  use  of.  3d.  Period  of 
a  year  and  a  day  after  the  disturbance  or  disseisin,  another  neces- 
sary condition  of  the  complaint.^  4th.  The  period  of  a  year  and  a 
day,  dating  from  the  judgment  upon  the  complaint,  during  which 

1  "Manutenuta,"  Loysel,  767.  In  the  sixteenth  century  they  say  that  there 
are  three  headings  in  the  complaint:  1st,  the  sequestration,  which  should  be 
asked  for  before  the  case  is  tried  if  there  is  any  reason  to  fear  that  the  opposing 
party  may  take  away  the  issues;  2d,  the  provisional  possession,  which  is  re- 
quired during  the  proceedings;  3d,  the  full  possessory  action,  or  the  fully  con- 
firmed possession:  Imbert,  "Inst,  for.,"  c.  17.  Possession  for  three  years  will 
prevent  sequestration  or  provisional  possession. 

^  An  alteration  of  this  nature  took  place  in  the  Italian  practice :  the  "Glose" 
(on  "1."  37,  D.,  "de  jud.,"  5,  1;  arg.  1,  8  "pr.,  de  dol.  exc")  admitted  the 
"exceptio  dominii"  in  matters  relating  to  possession;  they  were  concerned  with 
the  title  by  which  the  parties  held  possession;  thenceforth  the  duration  of  the 
possessory  action  was  extended  and  it  became  necessary  to  distinguish  between: 
1st.  The  "  Summariissimum,"  a  proceeding  resulting  very  quickly  in  a  provi- 
sional decision  following  a  summary  investigation  of  the  matter;  it  is  made  use 
of  when  there  is  a  "periculum"  or  "timor  armorum"  with  the  object  of  pre- 
venting violence;  it  was  accorded  to  any  person  in  possession,  and  it  was 
witliin  the  discretion  of  the  judge  to  give  even  a  mere  withholder  the  advantage 
of  it  (fifteenth  century,  Paulde  Castro).  The  "Summariissimum"  was  propa- 
gated in  Germany  and  in  Spain.  The  provisional  possession  was  found  in 
France.  It  had  the  same  origin;  it  issued  from  the  measures  to  keep  order 
which  were  forcibly  taken  by  the  law  at  the  beginning  of  the  action  for  pos- 
session: "Stat.  Romse,"  1580,  I,  92;  P.  de  Castro,  '^Consilia,"  II,  3.  —2d.  The 
"  Summarium "  ("possessorium"):  this  is  the  ordinary  possessory  procedure, 
the  prohibition  "uti  possidetis";  it  is  thus  called  because  it  has  always  been 
understood  that  the  possessory  procedure  ought  to  be  summary.  3d.  The 
" Ordinarium "  or  "Plenarium"  ("possessorium"),  an  intermediate  proceeding 
between  the  possessory  action  and  the  action  for  real  property;  it  was  derived 
from  c.  9,-Dig.  X,  "de  prob.,"  2,  19  (Innocent  III,  1207),  where  along  posses- 
sion based  upon  a  title  is  given  precedence  over  a  doubtful  possession ;  it  corre- 
sponds to  the  action  of  simple  seisin  of  the  French  law.  Details  in  Bruns, 
"Besitz,"  232,  etc.;  "Besitzklagen,"  1874;  "Jahrb.  d.  g.  R.,"  IV,  1;  Briegleb, 
"Einl.  in  d.  Theorie  d.  summ.  Proc,"  1859;  Fertile,  IV,  177;  Salvioli,  §  243; 
Savigny,  §  51,  again  finds  the  "Summariissimum"  in  Guil.  Durand,  "Spec,"  4, 
1,  9,  22.  He  shows  us  that  in  Germany  at  the  end  of  the  eighteenth  century 
this  very  summary  procedure  was  very  long  drawn  out;  he  was  judge  in  an 
action  where  the  "summar"  had  lasted  twelve  years,  and  nobody  could  foresee 
an  end  to  their  difficulties;  according  to  this  the  "ordinarium  might  easily 
last  fifty  years  and  the  "petitorium"  a  century. 

^  The  extra  day,  which  was  only  demanded  so  as  better  to  distinguish  the 
end  of  the  delay,  has  disappeared  from  the  existing  law.  Cf.  "Summa  Norm.," 
ed.  Tardif,  Table,  see  "Annus,"  "Dies." 

*  "Gr.  Cout.,"  pp.237,  238.  According  to  the  "Ass.  de  J^rus.,"  J.  d'Ibelin, 
c.  64,  after  more  than  forty  days  have  expired  one  is  not  disseised  over  again. 

346 


Topic  4]  POSSESSION  [§  277 

delay  the  petitory  action  for  title  must  be  brought,  under  penalty 
of  forfeiture.^  These  last  two  delays  are  periods  of  procedure  es- 
tablished to  insure  order,  so  as  not  to  allow  individuals  to  be 
affected  for  too  long  a  time  by  a  litigation  concerning  which  the 
interested  party  has  no  more  thought,  or  which  he  is  only  delay- 
ing in  a  spirit  of  chicanery.  Perhaps  they  owe  their  origin  to  the 
fact  that  in  the  Roman  prohibition  one  had  to  act  within  a  year 
of  the  disturbance  or  of  the  "dejectio";  perhaps  they  are  only  an 
application  of  the  Customary  period  of  a  year  and  a  day.^  The 
year's  possession  required  of  the  man  who  brings  the  complaint  is 
a  surer,  better  established,  and  more  respectable  possession,  owing 
to  the  sole  fact  of  its  duration,  than  is  possession  for  a  few  days.^ 
It  is  no  doubt  due  to  the  same  needs  to  which  the  tenure  of  a  year 
and  a  day,  with  its  consequence  of  prescription,  answered;  it  must 
be  connected  with  the  same  old  Customary  ideas,  because  it  is 
simply  an  application  of  them."* 

1  P.  de  Fontaines,  pp.  232,  289.  A  rule  which  disappeared  in  the  fifteenth 
century.   Cf.  "  Gr.  Gout.,"  p.  256  (still  applied).   Cf.  German  " Rechte  Gewere." 

*  Cf.  Champeaux,  p.  436. 

3  D'Espinay,  p.  119;  De  Parieu,  p.  116  (cf.  pp.  264,  265,  257,  n.  8,  vol.  II). 
There  has  been  an  endeavor  to  account  for  this  by  means  of  the  rule  that  it 
was  necessary  to  bring  the  action  for  possession  within  a  year  and  a  day;  so 
long,  therefore,  as  a  man  had  not  had  possession  for  a  year,  he  was  liable  to 
have  the  complaint  brought  against  him;  as  soon  as  he  was  no  longer  exposed 
to  this  he  acquired  the  right  of  bringing  the  possessory  action  himself.  The 
second  and  third  rules  laid  down  in  the  text  are,  therefore,  in  the  last  analysis, 
but  a  single  rule  looked  upon  from  either  the  positive  or  the  negative  point  of 
view.  —  According  to  this  system  it  is  hard  to  understand  why  a  man  who  has 
been  in  possession  less  than  a  year  —  six  months,  for  example  —  has  no  action 
against  a  possessor  of  one  or  two  months.  One  will  say  that  he  runs  the  risk 
of  being  sued  himself  by  a  third  party  who  can  plead  possession  for  a  year. 
But  what  difference  do  his  relations  with  third  parties  make?  Perhaps,  more- 
over, there  may  not  be  any  third  party  who  can  plead  the  pos.^ession  for  a 
year.  It  never  occurred  to  the  Romans  to  say  that,  if  the  "dejectus"  had  not 
acted  "de  vi"  within  the  year,  the  "dejiciens"  would,  because  of  this  fact 
alone,  have  a  right  to  the  prohibition.  The  Assizes  of  Jerusalem,  which  allow 
forty  days  within  which  to  begin  the  possessory  action,  do  not  require  that 
possession  shall  have  lasted  during  this  time. 

*  The  tenure  of  a  year  and  a  day  existed  before  the  possessory  proceeding; 
the  former  springs  from  popular  custom,  the  latter  is  created  by  public  au- 
thority. They  have  existed  side  by  side,  but  this  does  not  explain  why  the 
customary  delay  had  no  influence  on  the  regulating  of  the  possessory  actions; 
nor  could  one  invoke  as  a  decisive  argument  against  this  influence  the  fact 
that  the  Assizes  of  Jerusalem  do  not  require  a  possession  of  a  year  in  the  matter 
of  the  complaint,  while  at  the  same  time  admitting  of  tenure  for  a  year.  "  Ord." 
of  Philip  Augustus  applying  to  the  Crusaders,  Art.  XI;  De  Parieu,  p.  118.  — 
In  the  "Glim  "  the  tenure  of  a  year  and  a  day  with  acquisition  of  the  owner- 
ship is  qualified  as  "specialis  consuetude  terra,"  II,  339,  10;  74S,  22;  III, 
556,  52;  A.  Thierry,  "Doc.  In6d.,"  IV,  716.  Charter  of  Saint- Valery  sur 
Somme,  Art.  21  (in  1376).  This  tenure  was  done  away  with  by  means  of  the 
system  of  the  long  Roman  prescriptions.  Heusler,  "Gewere,"  p.  407  et  seq., 
sees  in  this  period  of  a  year  and  a  day  in  possessory  matters  an  abstract  formula 
corresponding  to  the  one  in  the  Norman  law  relating  to  the  last  harvest. 

347 


§  278]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

§  278.  Action  of  Simple  Seisin  (without  there  being  any  tres- 
pass).^ By  this  was  understood  a  possessory  action  accorded  to 
the  man  who  had  failed  or  should  have  failed  in  his  complaint 
because  he  had  not  the  last  year's  possession,  but  who  could  avail 
himself  of  a  long  possession  previous  to  this.^  The  possessor  for 
ten  years  ^  prevailed  by  means  of  this  action  over  the  one  who  had 
possessed  the  property  a  year  and  a  day  upon  condition  of  acting 
within  ten  years  from  the  time  of  the  loss  of  possession/  and  of 
presenting  a  title  in  support  of  his  seisin/  —  not  a  very  happy 
creation,  the  origin  of  which  is  obscure,®  and  owing  to  which  our 
practitioners  were  not  long  in  becoming  confused;/'^  the  action  of 
simple  seisin  disappeared  in  the  sixteenth  century.^ 

1  "Gr.  Cout.,"  p.  494  (as  contrasted  with  proprietary  actions).  Masuer, 
t.  10  and  11;  H.  de  Pansey,  "Compet.  des  Juges  de  Paix,"  ch.  46.  Cf.  Alauzet, 
p.  106;  Klimrath,  p.  368.  A  personal  action,  the  "condictio  possessionis "  of 
the  Roman  law,  has  been  erroneously  seen  in  this.  —  As  to  the  procedure, 
Loysel,  763.  —  Cf.  Gidlhiermoz,  p.  288;  "quando  simpUciter  agitur  de  posses- 
sione"  (as  contrasted  with  the  "novitas").  —  Ducoudray,  "Orig.  du  Parle- 
ment,"  p.  831. 

2  In  this  action,  "les  plus  anciens  exploits"  (that  is  to  say,  the  enjoyment 
which  has  existed  the  longest)  are  the  most  efficacious:  "Gr.  Cout.,"  pp.  250, 
252;  Loysel,  765;  Varin,  I,  794,  802. 

3  Loysel,  748,  764;  "Gr.  Cout.,"  pp.  232,  252.  The  delay  of  ten  years  was 
taken  without  any  special  object  from  the  delay  of  the  Roman  usucaption: 
Beautnanoir,  8,  9;  "Gr.  Cout.,"  p.  199;  "Paris,"  98. 

*  "Gr.  Cout.,"  p.  238;  Varin,  loc.  cit.  —  The  rule  cited  by  P.  de  Fontaines, 
22,  3;  "Artois,"  2,  29;  Beaumanoir,  32,  6;  64,  according  to  which  one  could 
only  bring  the  action  for  real  property  within  a  year  and  a  day  of  the  judgment 
upon  the  complaint,  was  therefore  abandoned:  cf.  "Gr.  Cout.,"  pp.  237,  238. 

*  "Gr.  Cout.,"  p.  232.  From  this  point  of  view  the  action  was  very  similar 
to  the  action  for  real  property  and  became  practically  useless. 

^  The  "Gr.  Cout.,"  p.  232,  calls  it  "casus  recuperandae  possessionis," 
which  might  lead  one  to  suppose  that  it  was  invented  in  order  to  take  the  place 
of  the  prohibition  "recup.  poss.  c,"  in  imitation  (distant?)  of  the  Roman  law. 
Lauriere  (on  Loysel,  765,  762)  says  that  its  creation  was  due  to  Simon  de  Bucy, 
which  is  not  said  in  the  passage  from  the  "Gr.  Cout.,"  upon  which  he  relies, 
p.  253.  From  this  it  follows  that  there  remained  no  other  resource  but  the 
action  for  real  property  to  the  man  who  was  defeated  on  the  complaint;  when 
the  case  of  simple  seisin  was  devised  it  was  asked  if  it  was  not  necessary  to 
refer  to  it  in  the  formula  of  the  complaint,  in  the  same  way  as  one  reserved 
the  action  of  reclaiming.  Practice  did  not  believe  this  to  be  necessary,  which 
was  contrary  to  the  opinion  of  Simon  de  Bucy.  —  It  may  be  that  the  action 
of  simple  seisin  had  this  origin  in  the  custom  of  delivering  letters  of  relief  to 
the  man  who  was  despoiled  and  who  allowed  the  year  and  a  day  to  pass  without 
taking  any  action.  —  Cf.,  however,  Guilhiermoz,  "Enquetes,"  p.  288,  no.  57. 

^  Beaumanoir,  24,  4,  allowed  the  complaint  to  the  holder  of  a  servitude. 
In  the  fourteenth  century  this  opinion  seems  to  have  been  contested,  under 
the  pretext  that  every  possession  of  a  servitude  without  a  title  is  one  at  will. 
Boutaric,  I,  31  (p.  188),  then  applies  the  action  of  simple  seisin  to  this  case; 
he  also  allows  it  in  the  case  of  burdens  upon  real  property.  Cf.  "Rents," 
"Paris,"  198;  J.  Faber,  "Inst,  de  Int.,"  §  "  Retin.,"  no.  22;  Masuer,  11,  18,  21: 
complaint  to  recover  quit-rent,  rents,  servitudes.  The  "Ord."  of  1667  also 
allows  the  complaint  in  the  matter  of  servitude^). 

8  Excepting  in  the  ParUament  of  Flanders,  Guyot,  see  "Complainte." 

348 


Topic  4]  POSSESSION  [§  279 

§  279.  The  Declaration  of  Recent  Work/  which  the  old  authors 
looked  upon  as  a  possessory  action  and  Hkened  to  the  complaint, 
appeared  towards  the  fourteenth  century  in  countries  of  Custom- 
ary law.  This  was  the  "operis  novi  nuntiatio"  of  the  Roman  law, 
preserved  and  disfigured,  undoubtedly,  by  the  Italian  practice 
and  that  of  the  South  of  France,  and  again  disfigured  by  the 
confused  doctrine  which  was  anxious  to  give  it  its  Roman  physi- 
ognomy.^ It  assumes  that  one  neighbor  carries  out  some  work 
on  his  land  in  violation  of  the  rights  of  another  neighbor  (for 
example,  he  builds  his  house  so  high  that  he  blocks  the  view  of  a 
neighboring  house).  He  to  whom  the  declaration  is  made  should 
defer  the  work  until  he  has  obtained  a  judgment  which  gives  him 
permission  to  go  on  with  it;  the  judges  will  only  accord  him  this 
permission  upon  condition  of  his  giving  surety  to  have  the  work 
demolished  if  it  should  be  so  ordered  later  on.  When  the  com- 
plaint is  made,  the  defendant  cannot  be  allowed  to  continue  work 
again  even  by  giving  surety.  The  little  importance  of  this  pro- 
cedure explains  why  it  is  not  mentioned  in  the  Ordinances  of 
1667.3 

1  "Gr.  Gout,  de  Fr.,"  p.  249;  Masuer,  11,  7;  Boutaric,  I,  31  (p.  197);  2- 
32;  "L.  d.  Droiz,"  no.  763;  "Anc.  Gout.  d'Anjou,"  "F.,"  1054  (ed.  Beautemps- 
Beaupre,  II,  293);  seeFerriere  (bibl.);  Glasson,  VII,  312;  cf.  "N.  R.  H.,"  1890, 
627;  "Precis  de  Proc6d.  Civile,"  1902. 

^  This  is  dealt  with  at  a  very  early  time  in  the  Italian  statutes:  Lattes, 
"Dir.  Gonsuetud.,"  p.  302.  Just  as  in  the  "Gr.  Gout,  de  Fr.,"  p.  88,  we  see  it 
combined  with  a  usage  which  existed  at  Rome,  but  without  becoming  confused 
with  the  "nuntiatio,"  the  prohibition  of  continuing  work  of  some  kind  (and 
not  only  a  building  operation)  by  the  throwing  of  a  stone  on  the  premises  and 
in  the  presence  of  witnesses. 

'  The  Law  of  May  25,  1838,  mentions  it  again.  Cf.  H.  de  Pansey,  "Just, 
de  Paix,"  ch.  38;  Garsonnet,    p.  538  (controversy). 


349 


280]  OWNERSHIP   AND    REAL    RIGHTS  [Chap.  II 


Topic  5.    Acquisition  of  the  Ownership   of   Immovables. 
Occupation  and   Prescription 

§  280.  The     Principal     Methods     of  |  §  286.  The  Tenement  of  Five  Years. 


Acquisition  "Inter  Vivos. 
§  281.  Occupation. 
§  282.  Prescription.  —  Shori;  and  Long 

Prescriptions. 
§  283.  The  Year  and  a  Day. 
§  284.  "Rechte  Gewere." 
§  285.  The  Tenure  of  a  Year  and  a 

Day. 


§  287.  Good  Faith. 

§  288.  Immemorial  Possession. 

§  289.  The  Roman  Prescriptions.  Pre- 
scriptions of  Ton  to  Twenty 
Years,  and  Prescriptions  of 
Thirty  Years. 

§  290.  In  the  Sixteenth  Century. 


§  280.  The  Principal  Methods  of  Acquisition  "inter  Vivos "^  are 
occupation,  usucaption  (or  acquisitive  prescription),  and  delivery.^ 
Further  on  we  will  discuss  the  methods  of  acquiring  "mortis 
causa,"  such  as  intestate  succession,  which  relates  rather  to  a  col- 
lection of  possessions,  and  the  legacy,  which  can  be  applied  to 
special  objects.  The  loss  of  ownership  only  results  from  abandon- 
ment or  surrender,  the  effects  of  which  vary  according  to  the 
nature  of  the  possessions.^ 

1  Our  old  authors  enumerate  them  and  classify  them,  drawing  their  in- 
spiration for  the  most  part  from  the  Roman  law:  Bradon,  I,  2.  Cf.  Blackstone, 
I,  2,  c.  13  et  seq.:  (A)  Rights  to  real  possessions:  inheritance,  succession  to  the 
estate  of  a  deceased  alien,  occupation,  prescription,  confiscation,  alienation  by 
deed,  by  special  custom,  and  by  will;  (B)  Rights  to  personal  possessions:  occu- 
pation, prerogative,  confiscation,  custom,  inheritance,  marriage,  judgment, 
gift,  contract,  bankruptcy,  will  and  administration. 

2  In  its  final  stages  the  old  doctrine  was  connected  with  the  Roman  ideas, 
but  it  did  not  triumph  without  having  some  resistance  offered  it;  the  rights 
claimed  by  the  lords  are  opposed  to  it,  —  for  example,  with  respect  to  alluvium, 
Loysel  still  says,  no.  236:  "The  river  gives  and  takes  away  from  the  lord 
justice  "  (bibl.);  Huber,  IV,  701;  Grimm,  "R.  A.,"  548.  As  to  dispossession  be- 
cause of  public  utility,  cf.  also  Huber,  IV,  716.  This  is  not  dealt  with  in  the 
old  texts  because  the  rights  of  the  people  collectively  are  so  extensive  that  no 
regulation  is  required;  the  individual  will  always  yield.  —  But  must  we  not 
observe  that  the  conflict  will  arise  between  the  family  and  the  State,  and  that 
the  family  is  not  so  weak  as  the  individual?  In  reality  cases  in  which  dispos- 
session is  necessary  are  very  rare.  —  "Olim,"  I,  252,  IV;  Viollet,  "Etabl.  de 
St.  Louis,"  IV,  63;  P.  de  Fontaines,  p.  292,  483. 

3  Surrender  as  applied  to  the  fief  or  the  copyhold  results  in  causing  these 
possessions  to  revert  to  the  lord  who  granted  them.  But  the  copyholder  can 
only  escape  from  his  future  obligations  by  complying  with  certain  formalities. 
Loysel,  521,  —  "Every  surrender  must  take  place  at  law."  The  vassal  cannot 
by  this  means  break  the  ties  that  bind  him  to  the  lord.  With  regard  to  aban- 
donment (properly  so  called,  that  is  to  say)  of  freeholds,  the  old  law  had  no 
general  regulation.  At  the  same  time,  according  to  Ferriere,  see  "Bieas  Va- 
cants,"  it  was  customary  for  the  lord  justice  only  to  make  use  of  his  right  of 
taking  goods  which  had  been  abandoned  after  the  lapse  of  several  years.  In 
Guyot,  see  "Occupation,"  the  legislation  of  Languedoc  is  cited  as  a  model; 

350 


Topic  S]  OWNERSHIP   OF   IMMOVABLES  [§  281 

§  281.  Occupation  (or  taking  possession  "animo  domini"  of  a 
*'res  nullius").^  This  method  of  acquiring  holds  a  place  in  the 
speculations  of  the  philosophical  jurisconsults  ^  in  proportion  to 
its  lack  of  importance  in  the  history  of  our  old  law.  It  is  only 
met  with  in  the  barbarian  period,  under  the  form  of  the  "apri- 
sio"  ^  or  "Neubruch."  ^  With  the  consent,  expressed  or  implied, 
of  the  community  to  which  he  belongs,  an  individual  starts  to 
cultivate  a  portion  of  the  territory  upon  which  the  community 
has  established  itself;  ^  he  clears  it  and  appropriates  it  to  himself; 
no  one  opposes  him  because  he  injures  no  one,  and  in  one  way  or 
another  it  is  felt  that  this  conquest  by  an  individual  will  turn  to 
the  profit  of  all.  Where  there  are  no  communities,  or  even,  in 
time,  upon  the  territories  of  communities,  we  see  the  king  au- 

possessions  were  considered  as  abandoned  when  their  holder  ceased  to  culti- 
vate them  and  ceased  to  pay  the  tallage  for  a  period  of  three  years;  they  were 
then  conferred  upon  the  man  who  offered  to  cultivate  them  and  to  pay  the  tallage 
and  who  improved  the  condition  of  the  community.  Cf.  Law  of  the  3d  Frim., 
year  VII,  Art.  76;  Despeisses,  III,  13. — Etymology:  "a-bandon";  as  to  the 
meaning  of  "bandon,"  cf.  Godefroy,  see  "Abandon";  P.  de  Fontaines,  15, 
29;  Beaumanoir,  43,  13;  "Ord.,"  I,  293  (abandonment  is  the  taking  of  a 
pledge). 

^  See  especially  the  writings  dealing  with  the  feudal  or  domanial  rights: 
Guyot,  see  "Occupation";  Pothier,  "Propri6t^,"  c.  2.  On  the  subject  of  occu- 
pation in  international  law,  cf.  Bonfils  Fauchille,  "Manuel  de  Dr.  International 
Public,"  1898;  Jeze,  "Occupation,"  1896.  Balboa  took  possession  of  the  Pacific 
Ocean  in  the  name  of  the  king  of  Spain  by  walking  into  it  and  striking  the 
waters  with  his  sword;  Cortez  thrust  his  sword  into  a  tree  in  order  to  take  pos- 
session of  Mexico,  etc.:  Lameire,  "Occup.  Miht.  en  Italie  sous  Louis  XIV," 
1903. 

2  Rousseau  only  echoes  their  old  doctrines  in  the  well-known  passage  from 
the  "Discours  sur  I'Origine  et  les  Fond,  de  I'ln^galit^,"  p.  2.  Cf.  Pascal, 
"Pens(5es  "  VI  50. 

3  Thevenin,  the  "Communia"  ("Melanges  Renier"),  1886;  "Textes,"  pp.  64, 
69,  78,  etc.  (Table);  Cauvet,  "Etude  Hist.  s.  I'Etabliss.  des  Espagnols  dans  la 
Septimanie,"  1877  (especially  p.  109) ;  Brunner,  "  D.  R.  G.,"  II,  256.  As  to  the 
method  the  barbarians  had  of  establishing  themselves  cf.  Meitzen,  op.  cit.  (by 
villages  or  by  single  houses)  and  an  analysis  of  these  ideas  in  Brandt,  op.  cit., 
and  in  G.  Blondel,  "Entre  Camarades,"  1901.  As  to  the  Roman  period,  cf. 
Mitteis,  "Z.  Gesch.  der  Erbpacht  im  Altherthum,  Abh.  Sachs.  Ges.  d.  Wiss.," 
20,  4  (in  1901),  p.  28  (bibl.),  deaUng  with  the  inscriptions  of  Souk-el-Khmis, 
and  Henchir  Mettich;  Girard,  "Textes,"  p.  163. 

*  Other  terms:  "captura,"  "comprehensio,"  "porprisio,"  "exartum" 
("essart,"  clearing  ground,  from  "sarrire,"  "sarcler,"  to  weed):  "bifang"  (a 
translation  of  "aprisio"),  "neubruch"  or  "rodung"  (clearing).  These  various 
expressions  at  the  same  time  designate  the  method  of  acquiring  and  the  land 
acquired  ("Rottland") :  Grimm,  p.  524;  see  Du  Cange.  Often,  in  order  to  make 
a  field  of  some  value,  men  begin  by  burning  off  the  underbrush  and  the  trees 
which  cover  it  ("novaliaexusta"):  Laveleye,  "Economic  rurale  de  la  Belgique," 
1875,  p.  200;  Roscher,  "Trait<§  d'Econ.  Polit.  Rurale,"  French  translation, 
p.  82. 

^  "L.  Burg.,"  t.  13,  "de'exartis"  (bibl.  and  note):  clearing  in  "silva  com- 
muni,"  —  that  is  to  say,  common  to  the  Roman  and  his  barbarian  host:  cf. 
41;  54,  2;  67.  The  custom  of  clearing  is  here  applied  to  private  property: 
Ragueau,  see  "Pourpris." 

351 


§  281]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

thorizing  the  taking  of  possession.^  But  the  increase  of  popula- 
tion and  the  progress  of  agriculture  resulted  in  the  abandonment 
of  this  old  practice.^  It  became  more  rare  from  the  beginning  of 
the  feudal  period.^  In  countries  where  the  theory  of  feudal  owner- 
ship was  applied  exclusively,  for  example,  in  England,  there  was 
no  longer  any  room  for  occupation,  for,  on  principle,  unoccupied 
lands  belonged  to  the  lord,  and  those  which  the  tenants  aban- 
doned returned  to  his  domain  because  of  his  immediate  holding."* 
It  is  by  drawing  their  inspiration  from  these  ideas,  or,  rather, 
from  their  practical  result,  that  the  framers  of  the  Civil  Code  had 
inscribed  in  their  draft  this  rule,  which  was  too  absolute:  "The 

1  "Bai.,"  16,  2.  Cf.  Schlyter,  "Corpus  Jur.  Sueo-Goth./'  Ill,  245.  The 
right  of  the  first  occupier  is  formally  recognized  in  this  text.  He  must  have 
cultivated  a  piece  of  land  which  was  uncultivated  and  without  an  owner. 
There  is  no  question  of  his  being  authorized  by  an  agrarian  community,  nor 
by  the  State,  nor  of  any  formalities  required  for  the  taking  of  possession.  Cf., 
however,  Beseler,  p.  11,  "Certain  statutes  mention  the  'captitatio  circura- 
eundo,'  the  incision  of  trees,  the  fact  of  lighting  a  fire,  of  erecting  a  structure; 
this  is  the  popular  custom."  But  not  one  of  these  formalities  is*  indispensable 
in  my  opinion ;  they  may  be  useful  in  order  to  determine  the  limits  of  the  land 
acquired.  Owing  to  the  mere  fact  of  having  taken  possession  of  a  piece  of 
land,  even  when  the  "extirpatio"  has  not  been  completed,  one  has  a  right  to 
drive  off  third  parties  who  would  take  possession  of  it  for  themselves.  Every 
free  man  used  to  have  the  right  to  exercise  the  taking  of  possession  in  the 
"silva  communis,"  and  upon  the  uncultivated  lands  of  the  community; 
what  he  could  take  and  really  occupy  was  such  a  trifle  as  compared  with  the 
vast  expanse  which  remained  (Tacitus,  26:  "et  superest  ager"),  that  there 
was  no  need  of  limiting  this  right;  the  community  tacitly  permitted  it  to 
be  fully  exercised.  When  population  increased  and  these  clearings  began 
to  increase,  it  had  to  be  restricted  or  even  done  away  with;  this  is  what 
is  done  by  the  laws  and  regulations  of  the  feudal  period.  However,  we 
meet  with  traces  of  the  old  principle  until  the  eighteenth  century  (in 
1712,  in  Holstein;  cf.  Beseler,  p.  15).  As  a  general  rule,  taking  possession 
was  only  allowed  with  the  expressed  consent  of  the  lord  or  the  community, 
and  it  was  a  natural  transition  to  the  system  of  seigniorial  grants  (for  example, 
to  guests). 

^  This  is  what  happened  especially  in  France.  Lands  without  an  owner 
and  unpopulated  regions  were  occupied  by  immigrants  whom  the  king  au- 
thorized to  establish  themselves  there  by  virtue  of  his  police  powers.  Thus  in 
the  time  of  Charlemagne  the  Goths  established  themselves  in  Septimania, 
Cauvet,  op.  cit.  Diplomas  from  Charlemagne  and  his  successors  in :  D.  Vaissette, 
"Preuves"  and  "Capitul.,"  ed.  Boretius,  I,  169  (in  812).  Cf.  Charter  of  811 
{Beseler,  p.  19);  Thevenin,  "Textes,"  no.  93.  The  royal  confirmation  thus  ap- 
peared to  be  necessary  for  the  man  who  had  exercised  the  right  of  taking  pos- 
session. It  also  often  happens  that  the  "captura"  takes  place  in  a  royal 
domain,  "regalis  silva,"  and  in  this  case  it  goes  without  saying  that  the  author- 
ization of  the  king  is  indispensable.  Colonies  in  the  German  provinces:  G. 
Blondel,  "Et.  s.  les  Popul.  rurales  de  I'Allemagne";  Imbert  La  Tour,  "M61.  P. 
Fabre,"  1901. 

^  The  Church  encourages  clearings  by  showing  less  strictness  in  the  col- 
lecting of  the  tithe  from  the  "novaha":  Dig.  X,  3,  30,  13;  5.  40,  21;  see  Du 
Cange.  But  by  "novale"  is  understood  all  cleared  land,  whether  in  conse- 
quence of  a  taking  of  possession  or  not. 

*  Thus  it  is  that  the  English  law  did  not  recognize  occupation  as  a  method 
of  acquiring  land :  Pollock  and  Maitland,  II,  80. 

352 


Topic  5]  OWNERSHIP   OF  IMMOVABLES  [§  282 

civil  law  does  not  recognize  the  right  of  occupation  alone."  They 
reconsidered  this  idea;  following  the  example  of  the  old  law,  they 
admitted  occupation  as  far  as  movables  were  concerned  (hunting, 
fishing,  estrays,  treasure),  sanctioning  in  this  respect  the  victory 
of  the  Roman  theories  over  the  Germanic  and  feudal  conceptions.^ 
"§  282.  Prescription.  —  Short  and  Long  Prescriptions.^  —  Ac- 
quisitive prescription  or  usucaption  does  not  seem  to  have  been 
known  in  the  old  Germanic  law;  the  only  one  met  with  therein  is 
a  sort  of  extinguishing  prescription,^  which  is  applicable  to  the 
most  diverse  rights,  and  which  has  its  basis  in  some  fact  which 
places  the  interested  party  under  the  necessity  of  pleading  it.^ 
From  thence  arose  in  the  ancient  Customary  law  a  usucaption  of 
short  duration,  the  tenure  of  a  year  and  a  day.  This  system  con- 
trasted with  the  Roman  theory,  according  to  which  usucaption  was 
contrasted  with  prescription  of  actions,  and  which  only  admitted 
the  long  prescriptions.  From  the  barbarian  period  Roman  insti- 
tutions made  their  way  in  the  legislation;  ^  the  Canon  law  gave 
them  a  new  force,  and  towards  the  thirteenth  century  they  pre- 
vailed.® Their  success  was  less  a  consequence  of  the  authority  of 
the  Roman  law  than  an  effect  of  the  gradual  progress  of  law ;  there 
was  in  this  one  of  those  legislative  reforms  which  took  place  be- 
cause of  practice,  under  cover  of  the  superstitious  respect  for  the 
Roman  law,  but  which  may  be  justified  by  motives  quite  differ- 
ent from  those  which  are  avowed.  Even  in  Rome,  long  pre- 
scriptions had  in  the  end  taken  the  place  of  the  usucaption  of 
early  times.  Very  short  periods,  like  that  of  a  year,  are  in  accord 
with  the  requirements  of  a  barbarian  society,  where  there  is  need 
of  prompt  regulation,  where  a  rough  system  of  proofs  is  the  only 
one  which  they  have;  they  also  accord  with  the  requirements  of  a 
very  highly  civilized  society,  where  the  rights  of  each  individual 

1  Fenet,  II,  124. 

2  Caillemer,  "Antiq.  jurid.  d'Athenes,"  "La  Prescription,"  1869;  Beauchet, 
"Hist,  du  Droit  Prive  de  la  Rdpubl.  Ath^n.,"  Ill,  142;  Girard,  "Manuel  de 
Dr.  Rom.,"  3d  ed.,  p.  296. 

'  In  the  same  way  the  English  law  does  not  recognize  any  acquiring  pre- 
scription, but  only  an  extinguishing  prescription:  Pollock  and  Maitland,  II 
81. 

*  Heusler,  §  91;  Immerioahr,  "Die  Verschweigung,"  1895. 

*  Law  of  the  Franks,  Visigoths  and  Burgundiana:  "Liut.,"  53;  Pardessus, 
"Dipl.,"  II,  185,  no.  394;  Brunner,  II,  517. 

«  "Arr.  Pari.  Paris,"  Apr.  3,  1322;  Buche,  "N.  R.  H.,"  1884,  335.  —  Com- 
bination of  the  Germanic  delay  and  the  Roman  delay:  "App.  Marculf.," 
33;  "Reims,"  168:  11  years;  Boutaric,  I,  22;  "Hainaut,"  7,  5:  21  years;  "Pon- 
thieu,"  31  years;  "Sachsensp.,"  I,  29:  30  years  plus  "Jahr  und  Tag";  C/iam- 
peaux,  p,  433;  Soule,  r.  28:  41  years. 

353 


§  282]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

are  sufficiently  well  protected  for  usurpations  to  be  little  feared; 
the  old  system,  not  being  able  to  organize  the  ownership  of  land  on 
the  perfected  foundations  of  modern  law,  protected  it  at  least  by 
means  of  the  long  duration  of  prescription. 

§  283.  The  Year  and  a  Day.^  —  A  year  is  a  natural  period  which 
was  applied  of  its  own  accord  to  the  acquisition  or  loss  of  rights.^ 
Csesar  and  Tacitus  state  that  a  distribution  of  the  land  was  made 
annually  among  the  ancient  Germans:  "anno  post  alio  transire 
cogunt,"  says  one  of  them;  "arva  per  annos  mutant,"  says  the 
other.'^  In  the  barbarian  laws  this  period  is  taken  into  considera- 
tion under  various  circumstances;  thus,  according  to  the  Salic 
Law,  t.  45,  "de  migrantibus,"  ^  the  stranger  in  a  village  cannot  be 
expelled  upon  the  demand  of  one  of  the  inhabitants  when  he  has 
sojourned  there  for  twelve  months.^  The  Capitulary  of  803, 
which  was  added  to  the  Ripuarian  law.  Chap.  6,  declares  that  if 
the  pleader  who  is  in  default  does  not  put  in  an  appearance  tvithin 
a  year,  the  king  shall  decide  as  to  the  disposal  of  his  possessions. 
In  the  same  way,  according  to  the  "Capitula  legi  addita"  of  816, 
Chap,  5,  the  "proprietas"  of  the  defaulting  criminal  which  is 
placed  under  the  royal  ban  becomes  finally  acquired  by  the  treas- 
urer, if  the  default  is  not  cleared  up  within  a  year  and  a  day.^ 
With  the  coming  of  the  feudal  period  applications  and  mentions 

1  Val.  Smith,  "Orig.  de  la  Poss.  annale,"  1854;  Klimrath,  II,  357;  Alauzet, 
p.  47;  De  Parieu,  p.  56;  Heusler,  "Gewere,"  p.  345;  Glasson,  VII,  349;  Viollet, 
570;  Champeaux,  "These,"  p.  376;  Fockema-AndresE,  "Z.  S.  S.,  G.  A.,"  1893, 
75;  MaUland,  "Law  Quart.  Rev.,"  V,  253. 

2  "Perennis,"  by  the  year,  "Verjahrung":  Viollet,  572;  Val.  Smith,  p.  33, 
48;  Heusler,  I,  56.  Cf.  the  three-year  period  corresponding  to  an  archaic 
system  of  triennial  rotation  of  crops  (Denmark,  "Jydsk.  Lov.,"  I,  47,  51).  — • 
Other  explanations.  —  (I)  Roman  origin:  "Cod.  Theod.,"  10,  1,  1;  "L.  Rom. 
Wis.,"  5,  6;  Benech,  "R.  Grit.,"  1854,  377.  —  (II)  The  year  includes  three 
"placita  legitima":  "Cap.,"  803,  c.  6  (post);  "Jostice,"  19,  42,  2:  in  the 
three  assizes  and  forty  days.  Cf.  Martene,  "De  Antiq.  Rit.,"  9,  5;  Prost, 
"N.  R.  H.,"  1880;  "Giving  of  PubHc  Notice  at  Metz,"  post. 

3  CcEsar,  "De  Bell.  Gal.,"  VI,  22;  Tacitus,  "Germ.,"  26. 
*  "Cap.,"  of  819,  c.  9,  which  modifies  this  title. 

5  This  title,  according  to  the  general  opinion,  does  not  provide  for  the 
acquiring  of  ownership.  See  as  to  the  controversy  to  which  its  interpretation 
gave  rise:  Geffcken,  "L.  Salica.,"  p.  178  (bibl.).  Other  cases  in  which  the 
delay  of  a  year  is  applied  in  the  barbarian  laws:  "Sal.,"  46  (appointment  of 
an  heir  "affatomie");  27,  19;  "Roth.,"  74,  112,  127,  221,  361;  "Liut.,"  24, 
96,  100.  Old-time  evidences:  Thevenin,  "Textes,"  114,  etc.;  Muratori,  "Ant. 
Ital.,"  I,  435;  Brunetti,  "Cod.  Diplom.  Tosc,"  I,  425;  Yves  de  Chartres,  "Ep.," 
77  (Migne,  "Patr.  Lat.,"  t.  CLXII);  "Leges  fam.  S.  Petri  Worm.,"  §  1  and 
6;  D.  Martene,  "Ampl.  Coll.,"  II,  56,  58;  Laws  of  Hoel  le  Bon,  Laferribre, 
"Hist,  du  Dr.  Fr.,"  II,  123;  "Acad.  Leg.  de  Toulouse,"  II,  250. 

^  "Capitul.,"  ed.  Bor.  "Index  Rer.,"  see  "Annus";  see  especially,  I, 
118;  268;  283;  362;  II,  63;  226;  "Cap.  L.  Rib.  Add.,"  803,  6  (I,  118);  "Cap.," 
816,  c.  5  (I,  268);  "Cap."  825,  c.  11  ("Lib.  Pap.  Loth.,"  31). 

354 


Topic  S]  OWNERSHIP   OF   IMMOVABLES  [§  284 

of  this  period  become  more  numerous;  ^  it  becomes  the  normal 
period  of  prescription  in  the  old  Customary  law;  the  expression,  a 
year  and  a  day,  is,  as  it  were,  the  style  in  the  Customs.^ 

§  284.  "Rechte  Gewere."  —  In  case  of  "missio  in  bannum,"  and, 
owing  to  the  very  fact  of  this  "missio,"  the  interested  party  found 
himself  called  upon  to  plead  his  rights  to  the  property  which 
had  been  seized;  and,  if  he  did  not  do  this,  his  rights  were  lost, 
because  there  could  be  no  going  back  upon  a  confiscation  which 
had  become  absolute.^    This  procedure  of  the  "missio  in  bannum," 

1  Du  Cange,  see  "Annus  et  Dies";  Ariprand  and  Albertus,  p.  138;  Heusler,  I, 
57,  etc.  Cf.  "Possession,"  "Repurchase  by  a  Person  of  the  Same  Lineage." 
Citizenship  or  serfdom  results  from  residing  in  a  place  for  a  year  and  a  day 
(Customs  in  which  the  very  air  makes  one  free  or  a  slave).  Cf.  on  this  subject 
"Nov.,"  123,  c.  17  {Justinian).  In  the  eighteenth  century  the  Elector  Pala- 
tine had  a  right  over  foreigners:  Hildebrand,  "De  Jure  Wildfangiatus,"  1717; 
Stobbe,  I,  §  68.  The  community  was  established  by  "living  together  in  the 
same  household  for  a  year  and  a  day."  A  number  of  actions  were  lost  by 
the  expiration  of  this  period:  Loysel,  713,  714;  Dunod,  p.  133;  Champeaux, 
"These,"  p.  400.  Inheritance  without  an  owner,  "Fribourg,"  24;  Customs 
of  the  South  ("Albi,"  etc.);  things  lost,  etc.:  Immerwahr,  p.  43. 

2  The  year  and  a  day  figures  for  the  first  time  in  the  Capitulary  of  816. 
By  assuming  that  the  period  begins  on  the  1st  of  January  it  will  expire,  not  on 
December  31,  but  on  January  1  of  the  following  year;  the  interested  party 
has  this  entire  day  within  which  to  allege  his  rights,  —  for  example,  to  exer- 
cise the  right  of  repurchase,  and  therefore  all  the  more  to  avoid  confiscation, 
as  in  the  Capitulary  of  816  (where  it  seems  a  delay  of  grace).  Then  only 
in  the  popular  thought  is  the  year  completed;  in  the  same  way  eight  days  are 
counted  as  a  week,  fifteen  days  as  two  weeks.  Our  old  authors  saw  a  clever 
intent  in  this  error  in  calculation;  they  must  have  added  a  day  to  the  year  in 
order  to  show  that  the  "dies  a  quo"  was  not  included  within  the  period  ("ut 
omnes  molestae  quaistiones  de  anni  tempore  tollantur").  Who  can  help  seeing 
that  this  would  have  been  postponing  the  difficulty  instead  of  solving  it? 
Tiraq.,  "De  Retr.,"  1,  11,  17;  Grimaudet,  "Retr.,"  8,  2;  La uriere,  on  "Paris," 
I,  264;  "Poitou";  "Troyes,"  144;  Pasquier,  "Rech.,"  IV,  32;  Guyot,  see 
"Retr.  Lign.,"  s.  VI.  From  this  explanation  one  may  at  least  conclude  that 
there  was  no  difference  between  the  Customs  which  speak  of  a  year  and  a  day 
and  those  which  merely  dealt  with  a  year.  —  In  Germany  in  the  thirteenth 
century  by  "  Jahr  und  Tag"  is  understood  a  delay  of  one  year  (three  "placita 
logitima,"  three  assizes),  six  weeks  (the  delay  of  the  Salic  Law  for  appearing 
in  court,  Geffcken,  p.  187)  and  three  days  (duration  of  one  session).  After  the 
year  has  expired  the  interested  party  still  has  the  power  of  pleading  his  right 
at  the  first  judicial  session,  which  will  be  held  within  six  weeks  at  the  latest; 
if  it  takes  place  previously  to  this  the  delay  is  shortened;  it  may  be  reduced 

to  one  day:  "Capit.,"  803,  c.  6;  Heusler,  I,  57;  Grimm,  "R.  A.,"  223;  Chaise- 
martin,  "Prov.,"  p.  185.  Cf.  Schroeder,  p.  706  (Controversy,  must  we  see  an 
innovation  in  this?).  Cf.  "Jostice,"  I,  6,  40,  50;  III,  6,  2;  XII,  6,  8;  7,  5;  22; 
XIX,  37,  9,  12;  P.  de  Fontaines,  21,  9;  A.  Thierry,  "Doc.  in^d.,"  IV,  662; 
Fagniez,  "Doc.  p.  Servir  ^  I'Hist.  dc  I'lnd.,"  p.  317;  Champeaux,  p.  375; 
Immerwahr,  p.  22.  On  the  three  assizes,  "Jostice,"  19,  12,  2;  P.  de  Fontaines, 
21,  10,  12  and  91;  22,  9;  Glanville,  1,  7;  "Or.  Cout.  de  Fr.,"  p.  263;  Durand, 
"Specul.,"  3,  1,  6;  2,  15,  10.  Cf.  date  of  these  statutes;  one  should  indicate 
the  year  and  a  day  ("Wis.,"  2,  5,  1).  It  has  also  been  conjectured  that  this 
was  the  merely  verbal  connecting  link  with  the  customary  formula. 

3  The  interested  party  had  to  appear  in  court  within  the  year  and  a  day; 
an  extrajudicial  protest  or  the  forcible  retaking  of  a  piece  of  property  would 
have  had  no  effect.    This  rule,  which  was  perfectly  natural  in  the  cases  pro- 

855 


§  284]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

with  its  powerful  effects,  was  extended  to  the  case  of  voluntary 
alienation  which  took  place  in  court.  The  German  sources  of  the 
thirteenth  century  show  us  this  in  their  description  of  the  "Auf- 
lassung"  (or  investiture)  by  law  (in  the  "echte  Ding,"  "placitum 
legitimum").^  The  judge  summons  those  who  take  part  in  it, 
three  times  to  plead  their  claims  over  the  piece  of  land  which  has 
been  alienated,  under  penalty  of  being  foreclosed;  all  the  free  men 
of  the  locality  are  present  at  this,  with  the  exception  of  minors, 
the  sick,  and  those  who  are  absent  from  the  country.  If  no  one 
claims  the  property,  the  judge  places  his  peace  over  it,  —  that  is 
to  say,  forbids  everybody  to  disturb  the  man  in  possession  ("sub 
banno  regio  proprietati  firmam  pacem  induximus").  Those  who 
do  not  take  part  in  the  judicial  assembly,  for  some  lawful  reason, 
preserve  the  right  of  making  complaint  during  the  year  and  a 
day.2  Once  the  year  has  expired,  the  position  of  the  acquirer 
could  not  be  attacked;  he  had  the  "rechte  Gewere"  ("legitima 
possessio").^  The  delay  of  a  year  was  granted  even  to  those  who 
were  present  at  the  judicial  assembly,  and  an  oath  was  demanded 
of  the  acquirer  in  support  of  his  possession.^  It  is  scarcely  to  be 
doubted  that  the  institution  of  the  "rechte  Gewere"  was  con- 
nected with  the  "missio  in  bannum"  of  the  ninth  century;  the 
formalities  with  which  the  former  is  surrounded  are  too  analogous 
to  the  latter,  and  are  conceived  too  much  in  the  same  spirit,  for 
this  to  be  otherwise.  INIoreover,  one  finds  already  in  the  Capit- 
ulary of  825,  Chap.  11,  the  alienation  of  immovables  connected 
with  a  procedure  of  calling  upon  all  those  who  have  any  rights.^ 
The  German  practice  of  the  IMiddle  Ages  thus  has  precedents 
from  the  time  of  the  Frankish  period. 

§  285.   The  Tenure  of  a  Year  and  a  Day  of  the  municipal  char- 

vided  for  by  the  Capitularies  of  803  and  816,  was  afterwards  kept  in  the  case 
of  the  "Auflassung." 

1  Post,  "Transfer  of  Ownership." 

^  "Leges  Fam.  S.  Petri  Worm.,"  about  1024,  c.  6.  Other  texts  in  Im- 
merwahr,  p.  15. 

^  "Sachsensp.  Landr.,"  II,  44,  1;  III,  83,  2,  3.  Municipal  charters, — • 
for  example,  "Berner  Handfeste,"  1218,  c.  22;  "Augsburg,"  1156,  c.  4;  "Delft," 
1246;  in  Mieris,  "Charterb.,"  I,  231,  etc.  —  In  the  twelfth  and  thirteenth 
centuries  the  "rechte  Gewere"  exists  almost  everywhere  in  German}\  —  The 
notions  respecting  this  institution  were  scarcely  clearly  defined  until  .after  the 
writings  of  R.  Sokm;  cf.  "Z.  S.  S.,  G.  A.,"  I,  33,  53;  Heusler,  "Gewere,"  237; 
"Inst.,"  II,  81;  Stobbe,  §  74;  Schroeder,  p.  706  (bibl.),  Siegel,  §  145;  Bnmner, 
"Forsch.,"  p.  736;  Hiiber,  IV,  712;  Immenvahr,  p.  27;  "Z.  S.  S.,  G.  A.,"  IV,  235. 

*  Breme,  1186,  3;  "Liibisch.  Recht,"  78;  Soest,  31,  etc.,  "L.  Feud."  I,  26, 
1 :  possession  for  a  year  confirmed  by  an  oath  is  equivalent  to  an  investiture 
of  the  fief  received  from  the  lord:   Ibid.,  II,  24;  40;  52;  55;  Fertile,  IV,  221. 

6  "Lib.  Pap.  Loth.,"  31;  -post,  "Public  Investiture,"  "Investiture." 

356 


Topic  S]  OWNERSHIP    OF    IMMOVABLES  [§  2S5 

ters  of  the  North  of  France  has  the  sameorig  in  as  has  the  "  rechte 
Gewere"  of  the  German  law.^  This  is  the  old  forfeiture  resulting 
from  the  expiration  of  the  year  and  a  day,  which  has  become 
transformed  into  usucaption,  and  the  primary  condition  of  which 
is  the  year's  possession  of  the  acquirer.^  The  prehminary  pro- 
cedure of  calhng  upon  those  who  have  rights  often  fell  into  dis- 
use; its  absence  was  supplied  by  the  publicity  of  the  delivery,  or 
of  the  taking  of  possession.^  But  the  effects  of  the  forfeiture  have 
lasted;  there  results  therefrom  an  absolute  plea  in  bar  against 
every  adverse  claim  (by  way  of  ownership,  servitude,  or  obliga- 
tion),'^ and,  as  a  consequence,  the  rights  of  third  parties,  whatever 
they  may  be,  those  of  the  relatives,  and  even  those  of  a  previous 
acquirer,  are  cleared  away.^    This  institution  lost  its  importance 

1  "St.-Omer,"  1128;  "Laon,"  1128,  15  and  20;  "Lorris,"  1155,  18  and  32; 
"Noyon,"  1181,  13;  "Chaumont,"  1182,  10;  "Roye,"  1183,  3  and  15,  "Abbe- 
ville," 1184,  23;  "Pontoise,"  1188,  11;  "Amiens,"  1190,  26;  "St.  Quentin," 
1195,  24,  etc.  ("Ord.,"  vols.  IV  and  XI,  p.  199  et  seq.);  "Anc.  Cout.  d'Artois," 
ed.  Maillart,  p.  357;  "Ass.  de  Jems."  J.  d'Ibelin,  "C.  de  B.,"  II,  p.  36  (ed.  B.). 
Cf.  Bigelow,  "Placita,"  p.  282;  Prou,  "N.  R.  H.,"  1884,  163;  "Jostice,"  Table, 
see  "Prescription";  "Const,  du  Chatelet,"  §  53  (note);  "Olim.,"  I,  748,  22 
(in  1268):  ten  years  or  even  a  year  and  a  day,  according  to  the  local  custom: 
Glasson,  VII,  272;  "Fuero  Real,"  2,  11  (year  and  a  day  in  peace);  Giraud, 

II,  259;  "Beauvais,"  1182,  27. 

2  WTiereas  in  the  early  law  inaction  on  the  part  of  the  interested  party  is 
sufficient  to  make  him  lose  his  right,  he  will  undergo  a  forfeiture  from  the 
mere  fact  of  his  "  Verschweigung,"  whether  his  adversary  have  or  have  not 
been  in  possession  during  the  year  and  a  day.  For  the  "rechte  Gewere," 
possession  is  also  required:  Fertile,  IV,  222. 

3  "  L.  Sal.,"  45;  "  Lorris,"  1155,  18;  Immeivahr,  pp.  12  and  15.  The  "bannum 
regis,"  which  is  the  early  basis  of  this  procedure,  often  disappeared:  "  Noyon," 
1181,  13;  "Abbeville,"  1184,  23;  "Ass.  de  Jerus.,"  J.  d'Ibelin,  c.  38;  "C.  des 
B.,"  II,  36  (ed.  B.);  Fertile,  IV,_  180  ("  Asti'_'),  etc.  In  these  texts  they  seem 
to  assume  as  a  necessary  condition  of  prescription  a  public  purchasing,  which 
is  brought  to  the  knowledge  of  everybody;  sometimes  they  speak  of  those  who 
"juste  ac  legitime  emerint";  but  the  mere  fact  that  there  is  no  insistence  or 
precision  upon  this  point  proves  that  this  condition  has  lost  a  good  deal 
of  its  importance;  publicity,  or  even  regularity,  of  purchasing  is  equivalent  to 
a  formal  putting  in  possession  of  all  the  interested  parties.  Cj.,  post,  "Public 
Investiture  by  Proclamation." 

*  "Nulli  tenetur  respondere,"  say  the  Charters  in  speaking  of  the  man  who 
has  possession  for  a  year.  Thenceforth  he  does  not  have  to  bring  his  warrantor 
into  the  action  and  it  matters  little  whether  he  have  acquired  "a  domino"  or 
"a  non  domino."  Nor  are  good  faith  and  lawful  title  necessary  for  him.  Cf., 
however,  "Cap.  Olon.,"  825,  c.  11  (I,  .329);  "Cap.  Adelchis,"  866,  c.  5;  Murat, 
"Ant.  Ital.,"  I,  435;  Lahand,  "Vermog.  Kl.,"  p.  315.  —  Minors  and  people 
who  arc  absent  are  not  deprived  of  their  rights;  forfeiture  only  affects  those 
who  know  or  who  are  in  a  position  to  know  that  a  third  party  is  in  possession: 
Schmid,  "Ges.  d.  Angels.";  "Gloss.,"  see  " Verjiihrung";  "Roj^e,"  1188,  3; 
"Summa  Norm.,"  98,  5;  L.  Delisle,  "Jug.  de  I'Echiquier,"  151  (in  1215),  etc.; 
Immcrwnhr,  p.  19  et  f^eq.;  Lnuriore,  "Tc'm.  de  cinq.  Ans.,"  p.  75;  cf.  "Glim.," 

III,  556,  52.  —  Loysel,  721,  on  the  other  hand,  looks  at  it  from  a  new  point  of 
view:  "Every  Customary  prescription  for  a  year  or  a  less  time  runs  against 
persons  who  are  absent  and  minors." 

*  "Cap.,"  825,  c.  11 :  in  case  there  are  two  successive  deliveries,  one  can  say, 

357 


§  285]  OWNERSHIP   AND    REAL    RIGHTS  [Chap.  II 

as  the  theory  of  possession  became  better  estabhshed;  it  became 
an  exception  in  the  Customs  of  the  sixteenth  century;  at  this  time 
the  only  effect  of  a  year's  possession  was  to  accord  a  right  to  the 
possessory  action;  it  did  not  cause  one  to  acquire  the  ownership.^ 

§  286.  The  Tenement  of  Five  Years  ^  (Anjou,  ]\Iaine,  Tours, 
Lodunois)  ^  or  possession  for  five  years,  served  in  the  sixteenth 
century  to  free  immovables  of  rents,  mortgages,  or  real  charges, 
which  encumbered  them ;  the  acquirer  of  the  land  by  color  of  title 
and  in  good  faith  was  the  only  one  authorized  to  avail  himself  of 
this  possession,  and,  again,  only  upon  condition  of  his  not  being 
the  heir  presumptive  of  the  debtor.^  This  was  only  a  transforma- 
tion of  annual  prescription,  as  a  result  of  the  text  or  the  prepara- 
tory work  of  the  Customs,  which  provided  that  the  too  short 
period  of  one  year  be  prolonged  to  three  years,  and  then  to  five.^ 
There  was  a  controversy  as  to  whether  this  prescription  ran 
against  minors,  those  who  were  absent,  or  the  Church.^  It  is  to 
be  noticed  that  the  arrears  of  a  "  constituted  rent,"  for  a  sum  of 
money,  were  lost  by  prescription  in  five  years.^ 

§  287.  Good  Faith  ^  was  required  by  the  Canon  law  ^  in  every 
prescription,  and  this  not  only  at  the  time  of  the  taking  of  pos- 
session, but  again  during  the  entire  duration  of  the  latter.  On 
this  point  it  was  in  accord  with  popular  ideas  ("one  hundred 
years  of  injustice  do  not  make  a  year  of  law"),  and  it  was  in- 

"Der  jungere  Bann.  bricht  den  alterem."  Post,  "Delivery":  "Leges  et  Stat, 
fam.  S.  P.  Worm."  (about  1024),  c.  6,  sale;  c.  1,  appointment  of  dower. 

*  Cf.  Beaumanoir,  8,  9.    Frederick  II  abolished  it:  "Const.  Sic,"  III,  37. 

2  Laurihre,  "Diss.  s.  le  Tenem.  de  cinq.  Ans.,"  1698;  Pothier,  "Propr.,"  no. 
21;  D' Aguesseau,  II,  189;  see  Ferriere.  —  Cf.  Boutillier,  I,  48  (4  years). 

'  It  left  in  existence  rents  on  land  (which  could  be  lost  by  a  prescription 
of  ten  to  twenty  years  or  thirty  years),  the  rights  of  the  lord  (which  could 
not  be  lost  by  prescription)  and  rents  or  charges  with  which  the  immova- 
bles had  been  affected  for  more  than  thirty  years  (old  debts  are  not  so  much 
suspected  of  fraud  as  are  new  ones):  Pothier,  no.  219. 

"  The  heir  presumptive  of  the  debtor  can  only  make  use  of  the  prescription 
of  thirty  years:  "Maine,"  438;  "Anjou,"  423;  Pothier,  224. 

^  Laurihre,  p.  83;  "  Maine,"  Report  on  Art.  482,  "  Mons,"  27  (instead  of  one 
year  to  be  in  possession  henceforth  three  whole  years). 

8  Loysel,  721;  Laurihre,  p.  85;  "Anjou,"  447;  "Maine,"  459;  "Journ.  des 
Aud.,"  I,  6,  13;  Pothier,  nos.  236  et  seq. 

">  "Confer,  des  Ord.  de  Gu6nois,"  IV,  7,  44;  "Ord."  of  June  15,  1510,  Art. 
71;  of  .Jan.,  1629,  Art.  142;  "D6c."  of  Aug.  20,  1792,  3,  1;  Civil  Code,  2277.  — 
Dunod,  II,  "Le  Gouix,"  "These.,"  1901. 

_  *  Mollcntheil,  "Natur  des  gutcn  Glaubens,"  1820;  Hildehrand,  "De  Bona 
Fide,"  1843;  Kroutzrvnld,  "De  Canonica  Praescriptione,"  1873;  Knitschky, 
"De  Praescr.  jur.  Canonica,"  1873;  Reich,  "Kanon.  Verjahrungslehre,"  1880: 
Benzacar,  "Those,"  1890;  Rvffini,  "La  Buona  Fede  in  Mat.  di  Prescrizione, 
1892  (bibl.,  p.  6);  "Encicl.  Giiir.  Ital.,"  see  "Buona Fede";  Horn,  "Bona fides," 
1899. 

»  Dig.  X,  2,  26  ("de  prajscriptionibus"). 

358 


Topic  5]  OWNERSHIP  OF  IMMOVABLES  [§  287 

spired  from  the  old  ]\Iosaic  law  (for  example,  the  Jubilee).^  If 
we  are  to  see  in  this  a  consequence  of  the  confusion  of  mor- 
ality and  law,  which  consequence  is  one  of  the  characteristics  of 
canon  law,  this  doctrine  is  also  to  a  certain  extent  an  expres- 
sion of  the  reaction  against  prescription,  an  institution  which 
becomes  less  and  less  necessary  in  a  well-ordered  society.^  The 
Decree  of  Gratian  still  clung  to  the  Roman  ideas.^  But  the  new 
doctrine  was  not  long  in  appearing  in  the  writings  of  the  canonists, 
and  at  the  end  of  the  twelfth  century  two  Decretals,  one  of  Alex- 
ander III,  the  other  of  Innocent  III,  sanctioned  it;  they  may  be 
summed  up  in  the  rule:  "Possessor  malse  fidei  ullo  tempore  non 
praescribit."  '^  The  canonic  rule  had  a  good  deal  of  difficulty  in 
making  its  way  into  the  secular  forum;  because  of  its  absolute 
character,  it  agreed  better  with  the  "jus"  or  the  "lex  poll"  (that 
is  to  say,  "coeli")  than  with  the  "lex  Fori";  and  if  it  had  the  ad- 
vantage of  preventing  some  spoliations,  it  was  only  at  the  price 
of  the  multiplying  and  prolonging  of  actions  with  relation  to 
ownership.  From  the  time  of  Baldus  the  Italian  practice,  in  spite 
of  the  formal  prescriptions  of  the  "quoniam"  Decretal,  took  no 
account  of  this.^    In  France  it  seemed  at  one  time  as  though  the 

1  From  this  reform  perhaps  comes  the  rule  according  to  which  title  should 
be  provided  (excepting  in  cases  of  immemorial  prescription);  however,  when 
the  man  who  gains  by  prescription  has  the  "jus  commune"  to  support  him, 
good  faith  will  be  sufficient  for  him:  Johannes  Teuionicus,  on  c.  7,  C,  XVI, 
q.  3;  Reich,  p.  28  et  seq.;  Bernard  de  Parme,  on  c.  17;  Dig.  X,  "de  praescr." 
Cf.  "Sexte,"  c.  1,  II,  13. 

2  Churches  were  exempt  from  the  prescriptions  of  tliirty  years:  Mohr,  "C. 
Dipl.  Rh.,"  I,  97. 

^  Cf.  Ruffini,  p.  11  (old  canonic  texts  containing  the  Roman  doctrine,  es- 
pecially the  Prague  collection  of  canons,  first  half  of  the  twelfth  century,  c. 
271,  279;  Hincmar,  "Op.,"  11,  737).  Decree  of  Gratian,  2a,  "Pars,"  "cause," 
XVI,  q.  3  and  4.  A  commentary  which  antedates  the  "Pars  "  VIII,  maintains 
that  the  "Partidas"  VIII  and  IX  were  introduced  into  the  Decree  by  one  of 
the  four  Doctors  Jacobus. 

*  First  mention  of  the  new  opinion:  Ruffmi,  p.  39  et  seq.  Cf.  especially 
"Sommes,"  by  Rufin,  p.  319;  and  Etienne  de  Tournai,  p.  220;  Gross,  op.  cit., 

E.  252.  —  Was  not  this  opinion  based  upon  a  passage  from  St.  Augustine  cited 
y  Gratian,  "Causs.,"  34,  q.  1,  c.  5,  in  which  at  the  same  time  there  was  abso- 
lutely no  thought  of  any  innovation?    In  reality  the  Custom,  "  Mala  fides  super- 
.  veniens  non  nocet,"  was  a  remainder  of  the  old  law  at  Rome  according  to  which 
'  usucaption  occurred  even  if  good  faith  were  lacking;  there  came  a  time  when 
^  good  faith  was  required,  but  it  was  only  required  at  the  beginning  of  the  pos- 
session.   The  canon  law  thought  to  moralize  prescrijition  by  demanding  that 
good  faith  should  be  prolonged  during  the  entire  time  the  possession  lasted: 
Decretal  "Vigilanti"  of  Alexander  III  (Dig.  X,  2,  26,  5.    Cf.  Ruffmi,  p.  61,  who 
upheld  the  authenticity  against  Hildebrand).    Reich  connects  it  with  the  Ger- 
manic law   ("Rechtaverweigung")  —  Dig.  X,   "de  praescr.,  cap.  ult."   (20). 
This  decretal  of  Innocent  III  is  only  the  c.  41  of  the  4th  Council  of  Latran, 
1215  {Hefeh,  "Conciles,"  French  translation,  VIII,  141). 

^  Hostiensis  (contrary  to  Bernard  de  Parme),  Bartolet  and  Balde  decide  that 

359 


§  287]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

Canon  law  were  going  to  triumph.^  But  a  distinction  was  made 
between  the  prescription  of  ten  and  twenty  years,  for  which  good 
faith  and  color  of  title  were  indispensable,  and  that  of  thirty  years, 
for  which  no  title,  and  consequently  they  said,  no  good  faith, 
were  requisite.^  The  only  satisfaction  given  the  canonists  was 
the  rejecting  of  the  Roman  rule,  "Mala  fides  superveniens  non 
nocet,"  with  regard  to  the  prescription  of  ten  years  .^ 

§  2S8.  Immemorial  Possession,^  or  the  prescription  of  one  hun- 
dred years,  ^  which  is  only  an  application  of  this  rule,  serves  to 
establish,  for  example,  the  existence  of  seigniorial  rights,  of  pri- 
vate or  public  rent,  of  local  franchises,  of  Customary  rights  over 
community  lands  or  seigniorial  lands. ^  Where  there  had  never 
been  any  title  establishing  their  formation,  or  the  titles  were  lost, 
which  was  a  very  frequent  thing  in  the  Middle  Ages,  it  was  shown 
that  these  rights  had  been  exercised  "a  tempore  cujus  memoria 
non  extat,"  "cujus  contrarii  non  existit  memoria"  for  a  hundred 
years  or  more;  old  men  attested  that  from  all  antiquity  it  had  not 
been  otherwise.^  This  proof  dispensed  with  title  and  good  faith, 
or,  rather,  a  conclusive  presumption  of  the  existence  of  the  title 
was  seen  therein.^    In  the  sixteenth  century,  and,  without  doubt, 

the  canonic  rule  should  be  applied  by  the  secular  courts,  the  moment  the  safety 
of  the  soul  is  affected.  But  Balde  maintains  that  "de  facto  non  servatur." 
Gerard  de  Sienne,  "De  Prsescriptione "  (a  work  of  which  we  have  only  the  ex- 
tracts in  Jean,  d' Andre,  etc.).  Cf.  P.  de  Ferriere,  "Practica,"  cited  by  Ruffini, 
p.  116;  J.  Faber,  "Inst.,"  "de  Usuc,"  2.  —  As  to  the  Italian  Customs,  cf. 
Lattes,  "Diritto  Consuetudin.,"  p.  121.  —  German  law:  Stobbe,  I,  p.  579. 

1  "Gr.  Gout,  de  Fr.,"  p.  198.  Loysel,  730:  "The  possessor  in  bad  faith 
cannot  have  the  benefit  of  prescription"  (note  and  bibl.)  —  "Siete  Part.,"  3, 
29,  12  (especially).  —  Struve,  "Jurispr.,"  ed.  1733,  p.  134:  The  canon  law  was 
followed  in  lands  of  the  Empire  and  in  Saxony. 

^  Gui  Pape,  "Q.,"  416,  199  {Ferriere  on  the  q.  416  states  that  practice  allows 
one  to  have  the  benefit  of  the  prescription  of  thirty  years  without  lawful  title 
or  good  faith),  "Qusest.  Capellse  Tolos.,"  74  (is  good  faith  required  for  pre- 
scription in  personal  actions?);  Pasquier,  "Inst.,"  p.  299;  Lamoignon,  title  on 
prescription;  Domat,  "Loix  Giv.,"  6,  7;  Pothier,  no.  34.  Dunod,  1,  7,  enumer- 
ates the  five  opinions  which  have  arisen  on  the  point  of  knowing  whether  the 
canon  law  should  be  followed  in  preference  to  the  civil  law. 

'  The  theologians  were  even  in  doubt  whether  one  could  keep  the  thing 
obtained  by  usucaption  without  committing  a  sin:  Buchereau,  "Inst.,"  p.  158. 
—  Cf.  the  question  of  knowing  whether  prescription  can  be  oflficially  supplied 
by  the  judge:  Britz,  p.  964. 

^  Ferriere,  see  "Poss.  imm.";  Guyot,  see  "Frescr." ;  Pasquier,  "Inst.,"  p.  303; 
"Digest.  Ital.,"  "Abimmemor."  (Schupfer) ;  Stobbe,  §  69  (bibl.);  Britz,  1013. 

^  Loysel,  726 etseq.;  Dunod, 2, 13,  distinguishes  them;  Biermann,  "Trad.," 25. 

8  Guyot,  lac.  cit.;  Pasquier,  p.  303;  Masuer,  22,  23.  It  was  applied  especially 
to  servitudes  which  had  been  interrupted.  Contra,  Lamoignon,  p.  214.  Cf. 
Lalaure,  "Servitudes,"  I,  3. 

'  Delays  in  Dunod,  2, 14;  Stobbe,  loc.  cit.   Cf.  Dig.  X.,  5,  40,  21,  26;  "Sexte," 
2   13. 
'  «  "Siete  Part.,"  Ill,  29,  7  (note);  Dunod,  2,  14,  cites  the  "Glose." 

360 


Topic  5]  OWNERSHIP   OF   EVEVIOVABLES  [§  289 

in  later  practice,  "immemorial  possession  is  equal  to  title."  ^ 
This  Customary  institution,  to  which  it  was  an  absolute  mistake 
to  try  to  attribute  a  Roman  origin,^  has  played  a  large  part  in  the 
formation  of  feudal  society;  it  is  this  institution  which  gave  to 
the  latter  its  laws  and  its  rights.^  The  canonists  and  the  regalists 
attacked  it  by  their  theory  of  imprescriptible  rights,  which  they 
understood  as  applying  not  only  to  ordinary  prescription,  but  to 
immemorial  prescription,  in  which,  however,  they  did  not  see  a 
real  prescription :  ^  "he  who  has  eaten  of  the  king's  goose  gives 
back  a  feather  a  hundred  years  later."  ^  In  1850  the  reformed 
Custom  of  Paris  limited  the  application  of  this  institution  to 
private  matters  by  deciding,  for  example,  that  no  servitude  could 
be  acquired  by  virtue  of  long  enjoyment  (Art.  186).^  It  has  dis- 
appeared from  the  modern  codes;  there  was  no  more  room  for  it 
under  a  system  of  strict  regulation  and  general  application  of 
written  proof. 

§  289.  The  Roman  Prescriptions.  Prescriptions  of  Ten  to 
Twenty  Years  and  Prescriptions  of  Thirty  Years.  —  The  Roman 
practice  at  the  time  of  the  invasions  scarcely  recognized  any  but 
the  acquisitive  prescription  of  ten  to  twenty  years  and  the  extinc- 
tive prescription  of  thirty  years  (without  good  title  or  good  faith). ^ 
These  institutions  are  once  more  found  in  the  Frankish  period, 
not  only  in  the  Roman  laws  and  documents,^  but  even  in  those 

^  Loysel,  727.  "Non  tarn  est  praescriptio  quam  titulus,"  says  Dumoulin, 
"Cons.,"  26;  cf.  on  "Paris,"  12,  13,  14,  "Cod.  Fabr.,"  7,  13,  7;  Legrand,  on 
"Troyes,"  Art.  61,  gl.  5;  Pothier,  no.  281.  From  whence  it  follows  that  it  can 
even  be  applied  to  rights  which  the  laws  declare  cannot  be  lost  by  prescription. 

2  Dig.,  39,  3,  1  and  2;  43,  20,  3,  §  4. 

'  Brie,  "Gewohnheitsrecht,"  1899;  Gmy,  "M^thode  d'lnterpr^t.  et  Sources 
en  Dr.  Prive,"  1899. 

^  Cf.,  for  example,  Gui  Pape,  q.  357,  416;  (a)  "jura  superioritatis  non  prae- 
scribuntur"  (as  the  feudal  system  had  only  been  a  long  prescription  of  the 
sovereign  rights);  (b)  controversy  as  to  the  "jura  quae  princeps  possidit  ut  pri- 
vatus,"  such  as  fiefs,  etc.:  Masuer,  23,  13;  Chopin,  "De  Doman.,"  3,  9,  3; 
Bacquet,  "CEuvres,"  ed.  1744,  I,  613:  against  the  king  one  cannot  acquire  by 
prescription  of  however  long  a  time,  even  of  one  hundred  years:  "Ord.,"  1539, 
etc.;  Diinod,  III,  5;  Lefevre  de  la  Planche,  "Dom.,"  12,  7.  Those  who  have  the 
seigniorial  rights,  such  as  the  lords'  immediate  rights  and  rents,  cannot  lose 
them  by  prescription:  Loysel,  735;  "Cout.  Not.  du  ChAt.,"  125;  "Paris,"  123 
et  seq.;  Masuer,  22,  7;  Desmares,  309;  "Gr.  Cout.,"  p.  308;  "Paris,"  114 
("Rentes");  "Toulouse,"  146.  As  to  the  tithes  and  enfeoffed  tithes,  which 
cannot  be  lost  by  prescription,  cf.  Loysel,  728,  729;  Pasquier,  p.  306;  Desmares, 
115;  Masuer,  22,  18. 

*  Loysel,  726;  Chaisemartin,  "Prov.,"  p.  194. 

*  Ferrihre,  on  this  article;  Lalaure,  "Servitudes,"  p.  239. 

^  "Cod.  Thdod.,"  4,  13,  2;  4,  14,  1;  "Nov.  Valcnt.,"  Ill,  t.  26  and  30,  34. 
Cf.  "Cod.  Just.,"  7,  39,  3;  "Reforms  of  Justinian"  in  528  and  531;  "Cod. 
Just.,"  7,  39,  8  and  31,  1;  Esmein,  "Melanges,"  215. 

8  "L.  Rom.  Wis.,"  "Cod.  Thdod.,"  4,  12  (13);  "Nov.  Valent.,"  8  and  9; 

361 


§  289]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

which  are  of  a  Germanic  character,  for  example,  in  certain  for- 
mulae and  in  laws  where  the  Roman  origin  of  these  institutions 
cannot  be  doubted.^  Custom  realized  a  reform  which  Justinian 
must  have  made  at  the  same  time  in  the  East,  by  transforming 
the  extinctive  prescription  of  thirty  years  into  usucaption;  for  this 
very  reason  it  was  given  precedence  over  decennial  or  twenty 
years'  prescription,  which  required  conditions  that  were  rather 
difficult  to  fulfill.^  In  the  books  of  Customs  of  the  thirteenth 
century  these  prescriptions  of  a  Roman  origin  are  almost  the  only 
ones  admitted  under  the  name  of  long  tenure.  For  the  thirty 
years'  prescription  no  color  of  title  is  demanded,  but  there  was 
hesitation  on  the  subject  of  good  faith .^ 

Paul,  5,  2  (prescription  of  10  and  20  years);  Papien,  31;  39,  44;  "Edit.  Theod.," 
12;  "Petrus,"  3,  10;  "Brachyl.,"  2,  9, 10, 11;  "R.  Bourg  de  I'ens.,"  1874,  43. 

1  The  laws  of  the  Burgundians  and  the  Visigoths  only  mention  the  prescrip- 
tion of  thirty  years:  "Burg.,"  79  (in  515),  ed.  Salts,  p.  103;  cf.  ibid.,  17.  As 
to  the  interpretation  of  these  texts,  see  Zeumer,  "Gesch.  d.  Westgoth.  Gesetz.," 
p.  400  ("N.  Arch.  f.  att.  Deutsch.  Gesch.,"  t.  23).  They  deal  with  a  prescrip- 
tion of  fifteen  or  twelve  years  "sine  testiis"  (without  protest)  and  not  "sine 
tertiis":  "Wis.,"  10,  2,  and  "Cod.  Euric,"  277  (50  years,  "sortes  gotice"  and 
"tertia  Romanorum");  Dahn,  "Westgot.  Studien,"  p.  79.  —  "Dec.  Childeb.," 
596,  c.  3:  possession  of  ten  years  as  between  people  who  are  present,  of  twenty 
years  between  people  who  are  absent,  and  with  respect  to  orphans;  in  general, 
"tricenaria  lex."  The  "Praec."  of  Clotaire,  II,  c.  13,  recognizes  the  thirty- 
year  prescription  by  which  property  can  be  acquired  for  the  benefit  of  the 
Church,  of  clericals  and  of  the  "  provinciales "  (Gallo-Romans,  cf.  Loening, 
"D.  Kirchen.,"  II,  284),  provided  it  rests  upon  a  lawful  title  ("Capit.,"  ed. 
Boretius,  I,  15  and  19).  "Capit.,"  I,  107,  c.  17;  293,  c.  9,  206  and  219;  II,  25 
(mention  of  the  prescription  of  forty  years  as  opposed  to  the  Church): 
Schroeder,  p.  378.  See  the  statutes  cited  by  TMvenin,  "Textes,"  Table,  see 
"Prescription"  (it  is  always  the  prescription  of  thirty  years  which  is  contem- 
plated; they  limit  themselves  to  saying  that  the  interested  parties  have  been 
' '  legaliter  vestiti ' '  during  thirty  years,  and  that  they  have  possessed  '  *  quiete  " ) . 
—  As  to  the  Lombard  law,  cf.  Schupfer,  "Allodio,"  nos.  41  et  seq.  "Roth.," 
227,  231,  is  concerned  with  the  possession  of  five  years,  and  Grimoald,  1  et  seq., 
introduces  the  prescription  of  thirty  years:  he  who  can  prove  that  he  has  been 
in  possession  for  thirty  years  is  released  from  the  duel  in  any  litigation  as  to  the 
ownership;  it  is  sufficient  if  he  give  an  oath.  Cf.  "Liut.,"  115  (the  possession 
of  thirt}^  years  based  upon  a  false  grant  is  of  no  value) :  "Ratchis,"  2;  "Aist.,"9, 
14;  "Liut.,"  69  (forty  years  among  relatives);  77  (sixty  years  with  regard  to 
property  of  the  king).  According  to  Schupfer,  possession  of  thirty  years 
would  not  make  one  acquire  the  ownership,  but  would  merely  give  one  a 
means  of  defense  against  reclaiming  upon  the  part  of  the  owner.  But  Albertus 
states  that  practice  did  not  thus  understand  it:  "cum  prescriptione  adquiritur 
dominum"  (p.  141,  ed.  Anschiitz). 

2  See  preceding  note.  "Petrus,"  III,  10:  the  possessor  in  bad  faith  "dominus 
non  erit,  nisi  per  30  annorum  spatium";  Pertile,  IV,  216. 

*  P.  de  Fontaines,  368;  "Artois,"  ed.  Tardif,  p.  68;  30  years,  according  to 
the  general  custom,  which  is  contrary  to  certain  local  Customs  that  have  up- 
held the  tenure  of  a  year  and  a  day,  and  to  the  written  law  according  to  which 
a  possession  of  from  10  to  20  years  is  required  {cf.  t.  26).  Beaumanoir,  24, 
3,  4:  user  for  a  year  and  a  day  gives  the  seisin;  tenure  of  10  years  gives  the 
ownership  and  the  seisin,  provided  that  it  is  based  upon  a  sufficient  consider- 
ation; user  during  thirty  years  has  the  same  effect  without  its  being  necessary 
to  allege  any  consideration;  cf.  8,  9;  16,  4;  20;  "Jostice,"  15;  16,  2:  a  long, 

362 


Topic  5]  OWNERSHIP   OF   IMAIOVABLES  [§  290 

§  290.  In  the  Sixteenth  Century  the  Customary  law  becomes 
fixed;  ^  the  Customs  admit,  as  a  general  rule,  two  acquisitive  pre- 
scriptions, —  that  of  ten  and  twenty  years,^  with  color  of  title  ^  and 
good  faith  (during  the  whole  time  of  the  possession),^  and  that  of 
thirty  years,  with  neither  title  nor  good  faith.^  Possession  only 
leads  to  prescription  if  it  is  peaceful/  public,^  was  not  gained  by 

peaceful  tenure  of  7  or  10  years  and  from  the  lord  (this  last  condition  is  also 
contemplated  by  Beaumanoir) :  "Et.  de  St.  Louis,"  ed.  Viollet,  I,  p.  Ill  (and 
texts  cited);  "Summa  Norm.,"  52,  7;  111,  13  (30  yrs.);  "Gr.  Gout.,"  2,  8; 
Desmares,  232;  Boutaric,  I,  47,  48;  Masuer,  XXII;  "Gonst.  du  Ghatelet," 
§  53  (note,  ed.  Mortet);  "N.  R.  H.,"  VIII,  335;  "Gout.  d'Anjou,"  ed.  Beau- 
temps-BeauprS. 

1  Outside  of  the  writings  of  the  Romanists,  see^the  "Confer,  des  Goutumes, 
de  Guenois,"  II,  6;  Ferriere,  on  "Paris,"  Table,  see  "Prescription";  Loijsel, 
711  et  seq.;  L'Hommeau,  244  et  seq.;  Domat,  "Loix  Giviles,"  3,  7;  Dunod, 
op.  cit.;  Pothier,  id.;  see  Ferribre,  Guyot. — Serres,  "Inst.,"  2,  6  (p.  157,  ed. 
1771):  in  countries  of  written  law  one  can  no  more  acquire  immovables  than 
movables  excepting  by  a  prescription  of  thirty  years  (as  a  consequence  of  a 
false  interpretation  of  the  "Nov.,"  119,  c.  7,  from  whence  was  derived  the 
"Auth.  Malae  Fidei,"  "God.  Just.,  de  Prsescr.  X,  veil  XX  Ann.");  Julien, 
"Elcm.  de  Jurisp.,"  p.  181;  on  "Provence,"  Prescription.  —  Bibl.  in  Brillon, 
"Diet,  des  Arr.,"  see  "Prescr.";  Britz,  p.  962.  —  As  to  the  prescription  which 
applies  to  movables,  cf.  Britz,  p.  1028;  Struve,  "Jurisp.,"  p.  141. 

2  Ten  years  in  the  case  of  people  who  are  present  and  twenty  years  in  the 
case  of  people  who  are  absent:  J.  Faber,  "Inst,  de  Usuc,"  8  et  seq.  Several 
systems:  1st.  Common  Law.  The  parties  are  supposed  to  be  present  when  they 
are  domiciled  in  the  same  diocese.  "Et.  de  St.  Louis,"  II,  161,  in  the  same 
bailiff's  or  seneschal's  jurisdiction  (countries  of  Gustoms),  or  within  the  juris- 
diction of  the  same  Parliament  (countries  of  written  law):  Loysel,  717;  "Paris," 
116.  —  2d.  Exceptional  Customs.  It  is  the  nearness  of  the  immovable  which 
has  been  prescribed  that  settles  the  question  of  presence  or  absence.  "Sedan," 
313:  they  are  present  who  live  within  ten  leagues  of  the  immovable.  Same 
system  in  the  Civil  Code,  2265.  —  3d.  Serres,  p.  159 :  absence  from  the  kingdom 
"reipublicEe  causa"  (Parliament  of  Toulouse).    Cf.  Boutaric,  I,  20,  47. 

3  Beaumanoir,  24,  4;  "Gr.  Gout.,"  2,  8;  Desmares,  232;  "Paris,"  113  et 
seq.  Generally  a  reputed  title  was  deemed  sufficient  because  a  lawful  title 
was  only  required  as  an  element  of  good  faith:  "Paris,"  114;  Dunod,  p.  12; 
Pothier,  no.  97.  Contra:  Lemaitre,  on  "Paris,"  6,  1,  1;  D'Argentre,  on  "Bret.," 
266,  1,  6;  Civil  Code,  2265.  —As  to  defective  title,  cf.  Dunod,  p.  A7.  —  Bu- 
chereau,  "Inst.,"  p.  161. 

*  In  countries  of  written  law,  as  in  the  Roman  law,  it  is  sufficient  if  the 
good  faith  existed  at  the  time  of  the  purchase;  thus:  Civil  Code,  2269.  —  In 
the  countries  of  Gustoms,  on  principle,  it  is  necessary  for  the  good  faith  to 
last  during  the  entire  possession,  thus  following  the  canon  law;  but,  as  a  matter  of 
fact,  it  would  be  necessary  for  bad  faith  which  occurred  during  the  time  of  posses- 
sion to  be  well  established  in  order  to  prevent  usucaption.  This  practical  point  of 
view  seems  to  us  to  decide  in  favor  of  the  opinion  admitted  by  the  Civil  Code: 
Lamoignon,  p.  213.    Cf.  J.  Faber,  "Inst.,"  fo.  37;  Struve,  "Jurisp.,"  p.  239. 

^  "Orl.,"  161;  Pothier,  no.  179;  Dunod,  p.  107.  Prescription  of  twenty 
years  between  persons  who  are  present  or  persons  who  are  absent  with  or  with- 
out title:  Ponthieu,  116;  "  Boulonnais,"  121.    Other  variations:  Britz,  p.  972. 

'  Desmares,  232:  without  disturbance.  That  is  to  say,  not  civilly  inter- 
rupted: Pothier,  no.  .38;  "N.  R.  H.,"  1875,  534.  As  to  disturbance  in  fact 
and  disturbance  at  law,  cf.  Argon,  II,  10;  see  Ferriere,  supra,  "Possession"; 
Civil  Code,  2229,  2233.  —  Things  stolen  or  the  possession  of  which  has  been 
obtained  by  violence  are  not  free  from  prescription;  a  prescription  of  tliirty 
years  runs  against  them:  Serres,  2,  6,  2.     Cf.  Landaberg,  p.  207  ("Glossators). 

^  As  to  concealment,  cf.  "Possession";  "  Melun,"  170;  "Orl.,"  253.    Pothier, 

363 


§  290]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

another's  consent/  and  has  lasted  ^  without  interruption  during 
the  required  time.^  One  can  join  to  one's  own  possession  that  of 
one's  grantor.'*  Once  acquired,  prescription  confers  ownership,^ 
and,  as  nothing  is  to  prevent  an  owner  from  depriving  himself  of  his 
property,  when  he  has  gained  it  by  prescription,  he  can  renounce 
the  benefit  of  the  prescription;  on  the  other  hand,  an  anticipated 
renunciation  cannot  be  lawful.®  Differing  from  short  prescrip- 
tions, that  of  ten  to  twenty  years  or  thirty  years  runs  neither 
against  those  who  are  absent  ^  nor  against  minors.^    Nor  can  it  be 

28,  Dunod,  p.  31,  admit  that  one  must  go  back  to  the  beginning  of  the  posses- 
sion in  order  to  decide  whether  it  is  put)Iic  or  concealed.  Guyot,  see  "Prescr.," 
§17. 

1  Mere  withholders  (usufructuaries,  farm  tenants,  etc.)  cannot  alter  the 
means  by  which  they  hold  possession.  The  status  of  tenure  at  will  lasts 
indefinitely  "etiam  per  mille  annos."  As  to  the  interference  of  the  title,  cf. 
Argou,  II,  10;  Dunod,  p.  36;  Pothier,  no.  35;  Civil  Code,  2236  et  seq.  —  Acts 
of  mere  toleration:  Civil  Code,  2232;  "R.  crit.,"  1880,  p.  450.  —  As  to  acts 
entirely  dependent  upon  one's  power,  cf.  Pothier,  I,  338  (ed.  jB.)  ;  Dunod,  p.  80 
et  seq.;  L'Hotnmeau,  285;  Guyot,  see  "Prescriptions,"  §  VII;  Britz,  p.  967; 
Struve,  "Jurisp.,"  p.  140. 

2  An  interruption  of  the  prescription  (Desjardins,  "N.  R.  H.,"  1877,  293) 
generally  results  from  a  demand  at  law  or  an  adjournment  (Order  of  Jan.  22, 
1655).  It  was  asked  whether  good  faith  ceased  when  this  demand  was  ac- 
cepted: "Ord.,"  1539;  1667,  2,  1;  D' Argentre,  on  "Bret.,"  266.  As  an  exception, 
in  certain  provinces  extrajudicial  summonsing  had  the  same  effect:  Salviat, 
"Jurispr.  de  Bord.,"  p.  100;  Dunod,  I,  9.  Distinct  acts  of  assignment,  pur- 
chasing and  distraint  were  even  more  like  it  in  this  respect:  Pothier,  "Oblig.," 
697.  As  to  acknowledgment,  cf.  Dunod,  p.  58.  —  "Toulouse,"  146;  "L.  d. 
Droiz,"  nos.  420  et  seq. 

^  "Probatis  extremis  praesumitur  media,"  Britz,  p.  966. 

*  Dunod,  p.  19  (Civil  Code,  2235).  Argou,  II,  10:  he  who  wishes  to  gain 
something  by  prescription  may,  if  he  chooses,  make  use  of  the  possession  of 
his  grantors  and  join  it  to  his  own;  he  may  also  make  use  of  liis  own  possession 
only  and  reject  that  of  his  grantors:  L'Hommeau,  249  et  seq.  (the  bad  faith 
of  the  predecessor  injures  the  heir).  As  to  the  doctrine  of  the  Glossators, 
Landsberg,  p.  191;  Thevenin,  no.  25. 

6  "Gr.  Cout.,"  2,  8;  Desmares,  106,  222;  "Cout.  Not.,"  99,  130,  125,  152.  — 
In  countries  of  written  law,  as  in  countries  of  Customs,  the  purchaser  of  an 
immovable  outlaws  mortgages  which  encumber  it  by  a  possession  of  from  ten 
to  twenty  years:  Serves,  p.  157.  L'Hommeau,  269:  the  mortgage  action  which 
is  joined  to  the  personal  action  is  outlawed  in  thirty  years  in  countries  of 
Customs  and  forty  years  in  countries  of  written  law.  Serves,  ibid.,  main- 
tains that  this  prescription  of  forty  years  against  the  mortgage  action  which  is 
given  to  the  debtor  has  never  been  admitted  in  practice:  Guyot,  see  "Prescr.," 
§  l\;Glasson,  VII,  353. 

«  Dunod,  p.  112  (bibl.);  Master,  XXII,  22. 

^  That  is  to  say,  those  who  have  disappeared:  Boutavic,  I,  27;  Guyot,  see 
"Prescr.,"  §  14  (absent  persons),  15  (madmen),  16  (minors);  Britz,  p.  1001. 

^  According  to  our  old  jurisprudence,  prescription  is  suspended  as  long  as 
it  is  impossible  for  the  man  against  whom  it  is  contracted  to  act  and  con- 
sequently to  interrupt  it,  for  he  is  not  at  all  to  blame.  This  rule  seems  to 
come  from  the  Canon  law  (Gvatian,  II,  16,  3,  13  et  seq.),  and  is  consistent  with 
the  spirit  of  this  law  in  matters  of  prescription,  and  is  one  which  has  been 
attributed  to  the  commentary  on  I,  1,  §  2,  "Cod.  Just.,"  "de  annali  except." 
But  no  agreement  was  reached  as  to  its  application:  Masuer,  p.  385,  ed. 
1600;  Gui  Pape,  "Q.,"  416;  Dunod,  p.  62;  Pothier,  no.  22;  "Oblig.,"  no.  680; 

364 


Topic  5]  OWNERSHIP   OF   IMMOVABLES  [§  290 

set  up  against  privileged  persons,  such  as  the  king,  communities, 
or  the  Church.^  The  prescription  of  forty  years  ^  is  usually  the 
period  required  against  the  Church ;  against  the  Holy  See  or  the 
king,  that  of  one  hundred  years.^  These  derogations  of  the  com- 
mon law  have  ceased  to  exist;  one  can  say  as  much,  not  of  the 
rules  concerning  things  which  are  imprescriptible,  —  for  example, 
the  rights  of  sovereignty  (they  have  been  maintained  for  the  most 
part),^  —  but  of  customs  and  jurisprudence  with  regard  to  fiefs, 
manors,  and  ecclesiastical  benefices.^  The  old  feudists  held  out 
logically  for  imprescriptibility  in  the  relations  between  lord  and 
vassal  or  copyholder.  Dumoulin  still  lays  down  the  principle 
that  the  "lord  and  the  vassal  cannot  gain  anything  by  prescrip- 
tion against  each  other."  In  the  eighteenth  century  there  was 
seen  in  this  nothing  but  a  prejudice,  and  for  a  long  time  the  rule 
had  come  to  be  almost  annihilated  by  the  limitations  which  were 
unceasingly  brought  to  bear  upon  it.     According  to  Dumoulin, 

Domat,  "Loix  Civ.,"  3,  7,  5.  The  canonists  decided  that  "prescriptio  dormit 
tempore  hostilitatis  cum  jura  in  civitate  non  redduntur."  Was  it  necessary 
to  apply  this  explanation  to  cases  where  obstacles  of  a  less  absolute  character 
impeded  the  exercise  of  prescription  (minority,  absence,  lack  of  knowledge, 
etc.)?  Civil  Code,  2251.  The  king  was  recognized  as  having  the  right  of 
freeing  one  from  prescription  for  just  cause:  Masuer,  XXII,  1.  Divergences 
among  the  commentators,  details  in:  Landsberg,  p.  201;  Loyseau,  "Dcguer- 
piss.,"  3,  2.  Action  on  a  declaration  of  mortgage  devised  in  order  to  allow  of 
the  interruption  of  the  prescription  running  against  the  mortgage;  the  mort- 
gage action  could  not  be  begun  until  after  the  seizure  and  sale  of  the  property 
of  the  mortgagor:  see  Ferriere.  —  Does  prescription  run  against  married 
women?    Post:  Glasson,  VII,  356. 

1  Desmares,  232;  "Gr.  Cout.,"  p.  199:  thirty  years  against  the  king,  forty 
against  the  Church,  one  hundred  against  the  pope:  Lauriere,  on  "Paris,"  123. 
Other  persons  privileged  in  the  old  law:  the  Crusaders:  Loysel,  731  (bibl.); 
Bridrey,  "These,"  1899.  C/.  Boutaric,  I,  47.  The  Order  of  Malta:  Bourjon, 
I,  1093;  Guyot,  see  "Malte.";  Brillon,  see  "Prescr.";  Britz,  p.  992. 

2  Divergences  between  the  Theodosian  {Gratian,  2,  16,  3;  Dig.  X,  2,  26), 
and  the  Justinian  law  ("Nov.,"  9:  100  yrs.;  Dig.  X,  2,  26,  13;  "Nov.," 
Ill,  131:  40  yrs.;  Hincmar,  "Op.,"  II,  737);  and,  finally,  the  Lombard  law 
("Aist.,"  9);  "Capit.,"  V,  389;  cf.  "Auth.,"  "Quas  Actiones,"  "Cod.  Just.," 
"de  Sacros.  Eccles.,"  taken  from  the  "Nov.,"  131,  c.  6;  Julien,  "Epit.,"  119, 
6;  "Aries,"  in  Giraud,  II,  1;  J.  Fnher,  "Inst.,"  fo.  37,  V;  Loijsel,  722,  729, 
736  (bibl.).  The  canonists  and  the  glossators  are  at  variance:  Landsberg, 
p.  198;  Gui  Pope,  "Q.,"  161;  Ruffini,  "Buona  Fede,"  p.  36;  Desjardins, 
"Ali6nation  et  Prescription  des  Biens  de  I'Eglise  dans  le  Droit  du  Bas-Empire 
et  dans  le  Droit  des  Capitulaires"  ("R.  h.  Dr.,"  VI,  254);  Dunod,  "De  I'Alien 
et  Prescr.  des  Biens  de  I'Eglise,"  following  his  treatise  on  "Prescr.";  Ordi- 
nances; Masuer,  XXII,  21. 

'  Loysel,  725  et  seq.;  Gratian,  "Decret.,"  II,  16,  3,  17;  Biermann,  "Frad. 
F.,"  2.5. 

^  Theory  of  the  Glossators:  cf.  Landsberg,  p.  196.  As  to  the  real 
property  given  by  way  of  marriage  portion:  Masuer,  22,  4;  J.  Faber.  "Inst.," 
10.  38;  Rouss.  de  Lacombe,  "Rec.  de  Jur.  Civ.,"  see  "Prescr.  in  F.  ;  Guyot, 
^21;  Bourjon,  I,  1093. 

»  Guyot,  see  "Prescr.,"  §  36;  Dunod,  pp.  300  to  408. 

365 


§  290]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

himself,  possession  for  one  hundred  years  did  not  give  prescription. 
As  concerns  the  lord,  the  proliibition  of  gaining  the  fief  by  pre- 
scription was  reduced  to  the  single  case  of  feudal  distraint;  by 
means  of  prescription  it  was  possible  to  change  the  fief  into  a 
manor.  Of  this  there  only  remained  the  idea  that  the  vassal  was 
merely  a  holder  at  will  and  could  not  by  himself  alter  the  status  of 
his  possession.  The  nature  of  the  quit-rent  lease  was  opposed  to 
the  copyholder  gaining  freedom  from  the  rent  by  means  of  pre- 
scription ;  by  ceasing  to  pay  it,  he  could  not  thus  change  his  lease 
into  an  allodial  tenure;  moreover,  certain  Customs  ("Auvergne," 
"Bourbon")  laid  down  that  the  rent  was  lost  by  the  prescription 
of  thirty  years,  and  that  everywhere  arrears,  which  were  a  portion 
of  the  rent,  could  be  lost  by  prescription.^ 

In  the  existing  French  law  prescription  has  the  same  "raison 
d'etre"  as  it  had  in  the  Roman  period;  it  strengthens  ownership 
because  it  makes  its  proof  easy;  ^  the  required  periods  of  time, 
and  its  other  rules,  prevent  its  degenerating  into  a  spoliation.^ 
Whilst  it  has  lost  some  of  its  usefulness,  it  is  still  a  necessary  part 
of  our  system  of  real  property.  They  have  only  succeeded  in  doing 
away  with  it  in  the  systems  which  are  called  systems  of  enrolment 
(like  the  Torrens  Act  and  Prussian  Law  of  May  5,  1872),  where 
the  question  of  ownership  is  reduced  to  knowing  whether  one's 
name  is  or  is  not  inscribed  upon  the  public  registers. 

^  Loysel,  735;  Guyot,  see  "Prescr.,"  §  26  et  seq.  (bibl.)- 

^  It  is  not  sufficient  in  practice  to  obtain  this  result:  see  in  Aubry  and  Ran, 
"Cours  de  Droit  Civil,"  II,  219,  the  system  organized  by  French  jurispru- 
dence with  the  object  of  still  further  simplifying  the  task  of  the  o^vTier.  As  to 
the  existence  of  an  action  allowing  the  person  in  possession  to  recover  a  thing 
against  which  usucaption  had  begun  to  run  in  his  favor  in  our  law,  cf.  Apple- 
ton,  "Hist,  de  la  Propr.  Pretor.,"  1889;  E.  Levy,  "Th^se,"  1896. 

'  Discussion  among  our  old  authors  as  to  whether  prescription  sprang 
from  natural  law  {D'Argentre,  on  "Bret.,"  14,  10;  Puffendorf,  "Dr.  de  la 
Nature,"  12,  9;  Vattel,  "Dr.  des  Gens,"  II,  11,  Dunod,  1)  or  from  the  civil 
law  (Cujas,  on  I,  1,  Dig.,  "de  Us.";  Grotius,  "De  J.  Belh,"  2,  4;  Pothier, 
no.  20).  The  supporters  of  this  last  opinion  refused  to  give  foreigners  the 
benefit  of  this  prescription:  Denisart,  see  "Etranger,"  9.  They  also  admitted 
that  a  natural  obligation  survived  prescription:  Guyot,  see  "Prescr.,"  §  19. 


366 


Topic  6]  OWInTERSHIP    OF   BIMOVABLES  —  DELIVERY 


[§292 


Topic  6.    Acquisition  of  the  Ownership  of  Immovables 

Delivery 


§  291.  The  Transfer  of  Ownership  by 

Agreement. 
§  292.  Frankish  Period. 
§  293.  Real  Investiture. 
§§  294,  295.  Symbolical  Delivery. 
§  296.  Putting  in  Posse.ssion  in  Fact. 
§  297.  Juridical  Effects  of  these  Acts. 
§  298.  Delivery  "Per  Cartam." 
§  299.  Feudal  Period. 
§§  300,  301.  Fiefs  and  Copyholds. 
§  302.  Freehold  Tenure. 
§  303.  Monarchic  Period. 
§  304.   (I)  Customs  of  Public  Nams. 
§§  305,  308.  The  "Acts  of  Law." 
§  307.  The  Effects. 
§  308.  The  Public  Nam  Customs. 
§  309.   (II)  Public    Investiture    by 

Means  of  Proclamation. 
§  310.   (Ill)  Investiture  and  Giving  of 

Public  Notice  at  Metz. 
§  311.  (IV)  German  Law. 


§  312.  (V)  The  Common  Law  of  the 
French  Customs.  System  of 
Pretended  Delii-ery. 

§  313.  The  Same.  —  Origin. 

§  314.  Formation  of  the  French  Prac- 
tice. 

§  315.  Conditions  and  Effects  of  Pre- 
tended Delivery. 

§  316.  Estimate  of  the  System  of  Pre- 
tended Delivery. 

§317.  (VI)  Enghsh  Law. 

§  318.  (I)  Freehold.  (A)  _  Feoffment 
with  Livery  of  Seisin. 

§  319.  The  Same. —  (B)  Lease  and  Re- 

§  320.  The'same— (C)  Fine. 

§  321.  The  Same.  —  (D)  The  Common 

Recovery. 
§  322.   (II)  Copyholds. 
§  323.   (Ill)  Formation  of  Uses. 


§  291.  The  Transfer  of  Ownership  by  Agreement  took  place  in 
Rome  by  means  of  delivery:  " traditionibus  et  usucapionibus 
dominia  rerum,  non  nudis  paetis,  transf eruntur "  ("C.  J.,"  2,  3, 
*'de  paetis,"  20).  The  Civil  Code,  on  the  other  hand,  demands 
neither  delivery  nor  any  other  material  act;  ownership  is  trans- 
mitted by  simple  consent  (Arts.  711,  938,  1138,  1583).  The  con- 
tract, sale,  gift,  etc.,  by  virtue  of  which  this  transmission  takes 
place,  were,  at  the  most,  productive  of  obligations  in  the  Roman 
doctrine;  our  old  authors  qualified  it  as  "titulus  ad  adquirendum"; 
it  has  become  a  "modus  adquirendi";  it  gives  at  one  and  the  same 
time  a  credit,  having  for  its  object  the  property  alienated,  and  the 
ownership  of  this  property;  and,  as  this  latter  right  generally  ren- 
ders the  former  one  useless,  it  is  the  latter  alone  which  is  taken  into 
consideration.  The  modern  theory  is  found  to  be  the  reverse  of  the 
Roman  doctrine;  we  must  now  investigate  how  it  came  to  be  formed. 

§  292.  Frankish  Period.  —  The  principle  of  the  Germanic 
legislation  is  none  other  than  that  of  the  Roman  law:  no  transfer 
of  property  "solo  consensu,"  ^  necessity  of  a  material  surrender  or 

'  Mere  consent  is  not  sufficient,  even  to  create  obligations.  Some  of  the 
formulae  of  the  common  Roman  law  might  lead  one  to  believe  the  contrary,  — 
•for  example,  Rozibre,  I,  no.  160;  Marculfe,  II,  19;  "Roth.,"  183. 

367 


§  292]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

delivery.  It  can  be  accounted  for,  as  we  shall  see,  with  regard  to 
contracts,  by  reasons  drawn  from  popular  psychology,  or  relations 
between  families,  —  relations  out  of  which,  to  a  great  extent,  the 
primitive  law  has  sprung.  In  the  eyes  of  a  man  of  the  people  a 
simple  verbal  declaration  has  not  any  very  great  importance;  it 
does  not  bind  him,  it  is  only  recognized  by  the  law  in  proportion 
as  it  is  explained,  is  confirmed,  and  becomes  established  in  the 
eyes  of  all,  by  some  external  manifestation;  the  will  should  in  some 
way  become  incarnate,  take  form  in  the  shape  of  some  formality, 
in  order  to  be  recognized;  the  ceremonial  of  the  oath,  where  the 
formula  is  still  accompanied  by  a  gesture,  is  a  persisting  vestige 
of  the  old  usages;  and  in  former  times  formalities  were  the  more 
necessary  because  the  relations  between  two  important  groups, 
such  as  were  the  ancient  families,  were  being  regulated.^ 

§  293.  Real  Investiture.  —  Delivery  was  originally  extremely 
simple,  without  any  element  of  artificiality;  it  consisted  of  two 
acts:  1st.  The  apprehension  or  taking  possession  of  the  land  by 
the  vendee;  ^  he  went  upon  it  in  person,  installed  himself  there  and 
performed  certain  acts  of  ownership.^  2d.  The  surrender;  ^  the 
grantor,  after  having  taken  the  grantee  upon  the  land,  retired  and 
abandoned  the  land,  declaring  at  the  same  time  that  he  gave  up 
his  rights  over  it;  the  whole  thing  took  place  publicly,  —  that  is  to 
say,  in  the  presence  of  witnesses.^    The  spoken  word  and  the  ges- 

1  As  to  the  origin  of  the  principle,  cf.  Zallinger,  "  Wesen,  u.  Urspr.  d.  Forma- 
lismus,"  1898;  Heusler,  I,  65. 

2  "L.  Rib.,"  60,  1.  C/.  "Bai.,"  15,  2;  17,  2;  "Burg.,"  60,  2.  Mentioned 
in  the  statutes.  "Tradidit  .  .  .  factum  est  super  ipsam  terram";  "Cart. 
de  Redon,"  no.  22;  Thevenin,  "Textes,"  Table,  see  "Tradition  Reele";  Act  of 
848,  nos.  81,  82;  Pollock  and  Maitland,  II,  88.  Cf.  "L.  Sal.,"  46  (appointment 
of  an  heir):  "sessio  triduana"  {Geffcken,  bibl.).  Statutes  of  835  and  846, 
gift  from  Count  Vivien  to  the  Monastery  of  Cunauld,  in  the  county  of  Angers, 
and  delivery  by  his  "advocatus":  "Raynald,"  in  Juenin,  "Hist.  deTournus," 
1733.  As  to  the  fixing  of  the  boundaries  of  the  land  conveyed,  cf.  "Bai.,"  17, 
2  and  tit.  11;  "Alam.,"  81;  Grimm,  "R.  A.,"  527,  542.  See  also  "Liber  Term." 
(first  half  fourteenth  century)  cited  by  De  Ribbe,  "Soc.  Proveng.,"  p.  185; 
Glasson,  "Gr.  Encycl.,"  see  "Bornage";  Schroeder,  p.  59;  Thevenin,  no.  158, 
etc.  Current  forms  for  a  domain:  "terris,"  "domibus,"  "sedificiis,"  "man- 
cipiis  vineis,"  "pratis,"  "pascuis,  "campis,"  "cultis  incultis,"  "aquis  aqua- 
rumque  decursibus,"  etc.,  "rem  exquisitam"  (or  "inexquisitam").  Cf. 
Thevenin,  no.  124;  "Et.  de  St.  Louis,"  I,  138;  Boutaric,  pp.  211,  268,  775; 
"Jostice,"  p.  149  et  seq. 

'  It  may  be  that  at  a  very  early  period  the  taking  of  possession  became 
more  simple  and  was  reduced  to  the  giving  of  a  clod  of  earth  to  the  grantee, 
etc.    When  a  rather  extensive  estate  was  involved  this  was  almost  a  necessity. 

*  "Wcrpitio,  exfestucatio,  resignatio.  Me  exinde  foras  expoli  et  absasito 
feci;  sibi  foras  exitum,  alienum  vel  spoliatum  esse  dixit."  No  essential  for- 
mula? are  given.    Cf.  Grimm,  "R.  A.,"  p.  52  (formulae),  555;  "L.  Sal.,"  58. 

*  "In  presentia  omnium,"  etc.  (market,  court),  "coram  testibus  legitimis": 
"Rib.,"  59,  60  (the  number  of  witnesses  varies  according  to  the  value  of  the 

368 


Topic  6]  OWNERSHIP    OF   IMIMOVABLES DELIVERY  [§  294 

ture  thus  became  united  in  an  indivisible  proceeding,  which  was 
called  in  Latin  "traditio,"  or  "vestitura";  in  the  Germanic  lan- 
guage "sala."  ^ 

§  294.  Symbolical  Delivery  ^  was  established  at  an  early  period 
alongside  of  real  investiture,  and  in  the  end  even  took  its  place.^ 
The  material  acts  of  which  the  original  form  of  delivery  consisted 
and  which  were  carried  out  upon  the  land  itself,  became  simplified ; 
the  grantee  was  limited  to  receiving  from  the  grantor  symbols  ^ 
varying  according  to  peoples,''  and  which  may  be  classified  into 
two  groups :  (a)  some  representing  the  land  itself,  from  which  they 
are  detached;  ^  the  part  is  taken  as  representing  the  whole;  such 
are  the  clod  of  earth  (delivery,  "per  wasonem,"  "per  cespitem"), 
the  branch  of  a  tree  ("per  ramum"),  the  knife  which  has  served 
to  cut  them,^  the  stone  of  the  house,  or  the  door  and  the  hinge,  the 
vessel  full  of  water  (in  the  case  of  a  pond),  the  rope  of  the  bell  of 

object;  there  must  be  twelve,  seven  or  three;  and  the  same  number  of  children 
are  added  to  them,  who  are  given  blows  and  have  their  ears  twisted).  "Bai.," 
16,  2  ("testes  per  aurem  tracti");  "Burg.,"  43,  1;  60;  99;  "Roth.,"  172  ("non 
absconse,  sed  ante  liberos  homines");  "Wis.,"  5,  4,  3;  2,  6;  "Capit.,"  803,  6, 
etc.;  "L.  Rom.  Cur.,"  8,  5,  1;  Chaisemartin,  "Prov.,"  p.  210:  "He  who  wishes 
to  buy  the  land  must  summon  the  people";  Grimm,  "R.  A.,"  4th  ed..  Index, 
see  "Zeuge";  Brunner,  "Forsch,"  p.  88;  " Gerichtszeugniss, "  in  "Festg.  f. 
Heffter  Urk.,"  I,  230  (a  subscription  in  deeds  by  witnesses);  Schupfer,  p.  142 
et  seq.;  "Cart,  de  Redon,"  no.  46,  etc. 

1  "Sala"  (Got.  "saljan"  equals  "tradere,"  "vendere").  — Grimm,  "R.  A.," 
554;  "Capit.,"  I,  380.  Often  the  name  "sala"  is  reserved  for  the  sale  whose 
delivery  is  only  its  carrying  out;  but  such  does  not  seem  to  be  the  language  of 
the  texts.  Moreover,  we  believe  {post,  "Contracts")  that  a  sale  which  was 
brought  about  entirely  by  mutual  consent  was  not  obligatory  in  the  old  Ger- 
manic law;  it  did  not  become  so  until  there  was  total  or  partial  execution,  so 
that  it  was  more  often  than  not  confused  with  investiture.  Cf.  Sohm,  p.  103. 
The  lack  of  a  "justa  causa  traditionis"  would  not  have  prevented  the  latter 
from  being  valid  {cf.  doctrine  of  Julian  at  Rome). 

2  Perard,  "Rec.  de  Pieces  p.  I'Hist.  de  Bourgogne,"  p.  22  (in  840),  25 
("inter  altare  et  corpus  Benedicti  tradidit");  p.  57  (in  882);  cf.  p.  33  (in  756); 
"Cart,  de  Redon,"  no.  165  (in  832);  "Form.  Lindenbr.,"  18,  55,  27,  58,  75, 
82,  etc.;  Mabillon,  "De  Re  Dipl.,"  p.  542  (in  870);  Mollenhech,  "De  Trad. 
Symbolica,"  1708;  Schaumberg,  id.,  1727. 

^  Towards  the  tenth  century  real  investiture  was  not  sufficient  to  transfer 
ownership;  cf.  post,  "Feudal  Period." 

*  As  to  the  symbolism  in  Germanic  law,  cf.  post,  "Contracts";  Grimm, 
"R.  A.,"  110;  Michelet,  "Orig.,"  p.  114;  Thcvenin,  "Textes,"  p.  263;  Dii  Cange, 
see  "Investitura,"  etc.;  Kraut,  "Grundriss,"  nos.  15  to  27;  Ilcusler^  I,  65; 
Schroeder,  p.  59;  Zollinger,  "Wesen  u.  Ursprung  des  Formalismus  im  Alt- 
deutsch.  Privatr.,"  1898;  Huher,  IV,  702. 

5  "Cartul.  Langob.,"  "M.  G.  H.,  L.  L.,"  IV,  595. 

'  In  the  end,  moreover,  they  took  objects  of  some  kind,  "corporeum  quod 
libet,"  whether  they  were  taken  from  the  piece  of  land  or  not:  Sohm,  p.  94, 
n.  3  (they  give  a  stone  out  of  the  road). 

'  "Cart,  de  la  Ste.-Trinitd  du  Mont"  of  Rouen,  p.  455.  In  many  deeds  one 
reads:  "Mittere  terram  super  altare  per  cultellum."  There  are  still  in  exist- 
ence charters  to  which  are  attached  knives,  Pollock  and  Maiiland,  II,  87, 
89. 

369 


§  294]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

a  church,  etc. ;  ^  (b)  others  express  the  power  which  one  has  over 
the  thing  which  is  ahenated:  they  are  the  hand,  the  glove  ("manus 
vestita"),^  the  lance,  the  arrow,^  the  "festuca,"  etc.  This  last 
symbol,  which  was  in  use  especially  among  the  Franks,  is  made 
use  of  alike  for  the  transfer  of  ownership  and  for  the  formation  of 
contracts.* 

^  As  to  these  various  sjmibols,  cf.  Grimm,  p.  110;  Michelet,  "Orig.,"  p.  116. 
In  the  very  old  times  the  vanquished  gave  up  his  land  to  the  conqueror  by 
presenting  him  with  some  grass,  "herbam  porrigere":  Pliny,  "Nat.  Hist.,"  22, 
4;  St.  Augustine,  cited  by  Fournel,  "  Adultere,"  p.  194.  On  the  "herba  pura" 
of  the  fecials,  cj.  "Liv.,"  1,  24.  Cf.  "L.  Sal.,"  58;  "Chrenecruda"  {Geffcken, 
p.  217);  "Melusine,"  V,  145,  1898,  p.  33;  Gaius,  IV,  16,  17.  "Alain.,';  81  (84): 
proceeding  as  to  boundaries;  they  take  a  clod  of  the  ground  in  litigation,  they 
plant  in  it  branches  cut  from  the  trees  that  are  found  there;  at  the  time  of  the 
duel  the  pleaders  touch  the  clod  of  earth  thus  prepared  with  their  swords: 
Michelet,  p.  117  (persistence  of  customs  of  this  nature  in  Flanders);  the  owner 
of  the  land  given  or  sold  cut  from  it  with  a  knife  a  clod  of  turf  in  the  form  of 
a  circle  and  the  width  of  twenty  fingers;  he  put  in  it  a  wisp  of  grass,  if  it  were 
a  pasture;  if  it  were  a  field,  a  little  branch  the  \\'idth  of  four  fingers,  in  order  to 
represent  the  land  granted;  and  he  placed  the  whole  thing  in  the  hand  of  the 
grantee.  These  symbols  could  be  brought  into  court;  also  they  were  kept 
■with  great  care  in  the  churches:  "Melusine,"  VI,  41  (formal  entry  into  Paris 
of  Henri  d'Anjou  as  the  chosen  king  of  Poland).  As  to  the  brotherhood  of 
the  turf,  cf.  Michelet,  pp.  195,  206.  As  to  the  "scolatio,"  or  throwing  of  the 
earth  into  the  breast  of  the  grantee,  see:  Du  Cange,  Dig.  X,  1,  4,  2;  "L.  Sal.," 
58  ("terra?  pulverem").  Biermann,  "Traditio  Ficta,"  p.  131;  "Z.  S.  S.,  G.  A.," 
1890,  p.  255  (clod  of  earth  thrown  into  the  cloak  of  the  purchaser  in  the  pres- 
ence of  witnesses,  after  which  the  two  parties  took  each  other  by  the  right  hand 
and  seized  each  other's  beards,  while  saying  that  the  ownership  of  the  grantee 
shall  be  as  firm  as  the  beard  is  firmly  affixed  to  the  chin.  Swords  thrust  into 
the  ground  in  1680);  1892,  276  ("span"  and  "rasen"  in  1819);  "Cart,  de  St. 
Pere"  of  Chartres,  I,  CXXIV;  of  Cluny,  no.  10,  etc.;  "N.  R.  H.,"  1885,  206. 

2  "Per  ostio  et  anaticula"  or  "et  axadoria,"  door  and  hinge.  Post,  "Eng- 
lish Law." 

*  As  to  the  symbolism  of  the  hand,  cf.  "Mundium."  Investiture  by  simple 
"Handschlag,"  in  giving  the  hand:  Perard,  p.  1-52  (in  875).  As  to  the  "manus 
vestita,"  cf.  Heusler,  I,  96;  Amira,  138.  The  glove  is  not  only  a  symbol  made 
use  of  for  the  formation  of  contracts,  it  is  also  a  symbol  of  investiture:  "per 
wantonem."  Instead  of  a  glove  they  also  make  use  of  a  guantlet(?).  "W[an- 
delanc]:  per  festucam  atque  andelangam,  per  wadium  et  andelangum":  see 
Du  Cange;  Grimm,  "R.  A.,"  186.  Unless  one  translate  "andelang"  by  a  hand 
clasp  ("  Hand,"  hand;  "langen,"  to  clasp).  In  Saxony  the  declaration  is  made 
"curvatis  digitis":  Schroeder,  p.  59;  Amira,  "Dresden.  Bilderhandschrift 
des  Sachsenspiegels,"  1902  (one  is  struck  with  the  care  with  which  the  move- 
ments of  the  hands  and  the  body  are  described;  the  artist  has  enlarged  the 
hands  and  lengthened  the  fingers  in  order  that  one  may  clearly  see  the  gesture 
prescribed  by  custom):  "Annal.,"  of  Einhard,  ad.  in  776;  "Capit.  de  part. 
Saxon,"  27  (I,  70). 

\Schupfer,  p.  148;  "Roth.,"  167,  172,  375,  386;  "IJut.,"  54.  Post,  "In- 
vestiture of  Fiefs."  Investiture  "per  baculum,  fustem,  calamum,  lignum,  veru, 
\'irgam  " :  see  Du  Cange.  The  "  festuca  "  serves  especially  for  abandonment ;  in 
this  case  it  is  thro-^Ti:  Rozibre,  "  Form.,"  286  ("  Sens,"  19) ;  Thevenin,  no.  137.  — 
But,  whatever  may  have  been  said,  it  is  also  made  use  of  as  a  symbol  of  the 
putting  in  possession  (delivery  "per  baculum");  cf.  "Form.  Lindenbrog," 
18;  "Cartul.  Langob.,"  2;  see  Ragueau,  "Fust.,"  "Rain."  As  to  the  nature  and 
the  part  played  by  the  "festuca,"  controversy.  Cf.  post,  "Contracts," 
"Cart,  de  St.-Bertin,"  no.  29;  "L.  Rom.  Cur.,"  24,  2  (Paul,  2,  3,  1);  D.  Vais- 

370 


Topic  6]  OWNERSHIP   OF   IMMOVABLES  —  DELR'ERY  [§  295 

These  methods  allowed  the  parties  to  carry  out  the  deliver}'' 
away  from  the  land,  — in  court,  for  example,  —  and  the  trans- 
fer of  the  immovable  property  was  then  reduced  to  a  simple 
declaration  confirmed  by  the  throwing  of  the  "festuca"  ("per 
festucam  se  exitum  dicere,  se  absacitum  facere"),^  "exfestucatio," 
"warpitio  resignatio"  {cf.  the  "Auflassung"  of  the  German  law  of 
the  Middle  Ages). 

§  295.  The  Same.  — The  symbolical  delivery  originally  appeared, 
so  it  seems,  under  the  form  of  delivery  in  court.^  Before  the  tribu- 
nal of  the  Frankish  king,^  in  actions  relating  to  claims  to  immov- 
ables,^ the  party  who  lost  was  held  bound  immediately  to  carry  out 
the  restitution  of  the  land  to  the  party  who  won;  the  land  was  aban- 
doned, "per  festucam."  The  same  procedure  was  made  use  of  at 
the  end  of  the  eighteenth  century  before  the  ordinary  tribunals.^ 
It  could  not  have  been  long  before  symbolical  delivery  not  per- 
formed in  court,  was  looked  upon  as  regular.^  It  does  not  seem  that 
delivery  "in  mallo"  was  made  obligatory.'^    The  Capitulary  of  809, 

sette,  "Preuves,"  no.  64.  The  monk  renounces  the  world  "cum  stipula."  In 
the  "Roman  de  Renart"  the  king,  taking  the  w-isp  of  straw,  pardons  Renart 
for  all  his  misdeeds.  The  "Proceres  Francorum"  declare  while  throwing  the 
"festuca"  that  they  no  longer  recognize  Charles  the  Simple  as  their  "senior": 
Pertz,  "M.  G.  H.,  S.  S.,"  IV,  124.  The  "festuca"  is  sometimes  replaced  in  the 
twelfth  and  thirteenth  centuries  by  the  thread  of  a  garment  or  a  hair  of  the 
beard:  Ibid.,  II,  374;  "Ord.  des  Maiours,"  pp.  318,  322  ("N.  R.  H,"  1878). 

1  Cf.  the  preceding  note.  In  title  58  of  the  "L.  Sal.,"  "de  Chrene  cruda," 
the  insolvent  throws  earth  upon  his  relatives.  Then  he  goes  away,  —  that  is 
to  say,  abandons  the  house  and  the  enclosure  by  climbing  over  the  hedge  which 
serves  to  close  it  in:  Geffcken,  "  L.  Sal.,"  p.  217.  —  There  is  no  mention  made  of 
the  throwing  of  the  "festuca":  "App.  Marculfi,"  19;  Thevenin,  "Textes," 
nos.  136,  141,  148,  etc.  As  to  delivery  to  a  third  party  ("Salmarm"),  who  is 
charged  with  giving  the  thing  to  some  designated  person,  cf.  Stobbe,  "Z.  R.  G.," 
VII,  405;  Thevenin,  no.  124.  Post,  "Testamentary  Executors,"  "Appointment 
of  an  Heir." 

2  Example  in  Thevenin,  "Textes,''  Table,  see  "Tradition"  (no.  132,  etc.).  — 
It  is  clear  that  symbolical  delivery  is  not  by  itself  a  legal  act  any  more  than 
investiture. 

3  Pertas  "Dipl.,"  I,  M.  35  (in  658),  73  (in  709  fictitious  action);  A.  16,  18, 
21,  22  (in  746-750).    Cf.  Hiibner,  "Z.  S.  S.,  G.  A.,"  1891;  Stiitz,  ibid.,  1896,  154. 

*  Schupfer,  p.  110. 

6  D.  Vaissette,  "Preuves,"  no.  5  (in  781);  "Trad.  Fuld.,"  in  819. 

8  According  to  Sohyn,  p.  91,  the  validity  of  extrajudicial,  symbolical  de- 
livery was  only  recognized  in  the  middle  of  the  ninth  century;  the  Capitulary 
of  817,  c.  6,  still  looked  upon  real  investiture  as  a  necessity,  because  it  com- 
pelled the  man  carrying  out  the  delivery  to  give  "fidejussores  vestituraj." 
But  I  have  difficulty  in  considering  this  argument  as  decisive.  The  "fide- 
jussore  vestituraj"  are  only  necessary  if  the  delivery  is  carried  on  at  a  distance. 
Already  delivery  "per  cartam"  was  admitted  with  its  full  effect  in  the  bar- 
barian legislation.  Cf.  "Capit.  Leg.  Add.,"  803,  c.  6  (I,  113);  817  (I,  282, 
379).    Cf.  I,  113.  151,  182  (Index,  see  "Traditio"). 

■^  The  "L.  Rib.,"  59,  1,  declares  that  delivery  should  be  made  "in  mallo," 
the  price  paid,  and  tlie  thing  received  (clod  of  earth,  sod?)  if  the  purchaser 
wishes  to  have  a  "testamentum  venditionis."     Cf.  t.  60  (nothing,  in  t.  59, 

371 


§  295]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

Chap.  26,  is  limited  to  the  prohibition  of  secret  dehveries  ("de 
traditionibus  ut  in  abscondito  non  fiant  propter  contentiones 
diversas");  they  must  take  place  "coram  testibus  legitimis."  But 
the  publicity  with  which  the  "traditio  legitima"  was  sought  to  be 
surrounded  was  better  realized  than  ever  when  the  act  took  place 
"in  mallo";  in  order  to  give  voluntary  alienation  the  same  effects 
as  forced  alienation,  recourse  to  the  expedient  of  fictitious  actions 
of  claims  was  devised;  ^  whether  it  were  a  question  of  real  or  ficti- 
tious actions,  the  intervention  of  the  tribunal  had  the  advantage 
of  setting  aside  beforehand  the  claims  of  third  parties,  and  of  giving 
the  grantee  a  secure  position.^ 

§  296.  Putting  in  Possession  in  Fact  was  thenceforth  distin- 
guished from  delivery  in  law,  as  it  had  not  been  in  primi- 
tive times.^  The  former  became  the  necessary  complement  of 
the  latter.  The  terminology  commonly  adopted  in  our  day  re- 
serves for  delivery  in  law  the  name  of  "traditio,"  whereas,  the 
taking  of  possession  is  preferably  termed  "vestitura,"  and  the 
agreement  which  precedes  delivery,  and  which  is  ordinarily  a 
sale,  is  sometimes  called  "sala."  But  the  wording  of  the  sources 
is  far  from  being  as  clearly  defined  as  this;  these  words  are  often 
used  for  one  another.^    The  entering  into  possession  is  described, 

indicates  that  a  piece  of  land  is  being  dealt  with;  should  one  not  understand  it 
as  applying  to  a  sale  of  a  movable,  contrary  to  the  general  opinion?).  See 
supra,  Capitularies  of  803  and  817.  Billow,  "Utrum  ad  Transfer  dom.  Resig- 
natione  solemni  in  Judicio  facta  Opus  fuerit,"  1870;  Fertile,  IV,  227.  Cf. 
"Edict.  Th^od.,"  53:  if  there  is  no  magistrate,  defendant  "duumvir,"  the  de- 
livery must  take  place  before  at  least  three  "curiales  ";  even  then  it  is  not  valid 
unless  the  entering  into  possession  takes  place  to  the  knowledge  of  the  neigh- 
bors: Marculfe,  I,  14;  Thevenin,  nos.  81,  82,  121,  124.    Cf.  Sohm,  n.  41. 

1  In  England  fictitious  actions  were  resorted  to  for  transfer  of  ownership 
until  1833. 

2  Post,  "Auflassung"  in  Germanic  law. 

^  Various  systems  to  account  for  this  splitting  up  of  one  act  into  two  dis- 
tinct acts,  the  delivery  and  the  "vestitura."  —  1st.  Public  delivery  "in  mallo" 
in  the  presence  of  the  popular  assembly  is  connected  with  the  collective  form 
of  ownership.  If  this  were  so,  it  would  have  been  rigorously  demanded  in  the 
most  ancient  documents,  and  just  the  contrary  is  what  has  been  estabhshed. 
—  2d.  Advantages  in  fact  resulting  from  public  delivery  (facility  of  proof, 
protection  for  grantee).  Secret  purchase  seems  like  a  fraud.  Those  who  take 
part  in  the  public  assembly  can  set  up  their  rights.  According  to  this  opinion 
delivery  "in  mallo"  must  have  been  required,  and  this  is  not  so.  —  3d.  A 
borrowing  from  the  Roman  common  law,  imitation  of  the  delivery  "per  car- 
tam."  It  seems  to  us  more  correct  to  say  that  these  two  forms  of  delivery  are 
derived  from  the  same  tendency.  —  4th.  Symbolical  delivery  was  applied  in 
cases  of  gift  for  the  benefit  of  the  Church:  "Cart  de  Redon,"  no.  99  (in  866), 
142,  143,  etc.  Example  in  the  sixteenth  century  in  Switzerland:  Huber,  IV, 
702.  —  5th.  The  cases  of  the  giving  up  of  possession  at  law  are  the  oldest  cases 
of  symbolical  delivery  that  we  know  of. 

''  Th4venin,  "Textes,"  see  Index,  no.  82  et  seq. ;  see  Du  Cange;  Grimm,  "R. 
A..,"  555  ("Sale"  and  "  Gewere  ").    Expressions  such  as  "  vendidi  et  tradidi." 

372 


Topic  6]  OWNERSHIP   OF   IMMOVABLES  —  DELFVERY  [§  297 

sometimes  with  great  lavishness  of  detail,  in  the  documents  of  the 
^Middle  Ages  up  to  a  recent  period :  the  new  owner  is  shown  riding 
over  the  land  on  horseback  or  in  a  cart  "in  signum  realis  et  vere 
apprehense  possessionis,"  cutting  branches  of  trees,  tearing  up 
tufts  of  grass,  causing  the  earth  to  be  worked,  entering  the  house, 
making  a  fire  therein,  embracing  a  column,  sitting  down  upon  a 
seat,  etc.  It  was  not  a  rare  thing  for  analogous  ceremonies  to  be 
practised  in  the  installation  of  functionaries,  the  crownings  of 
kings,  the  enthroning  of  popes  and  bishops.^ 

§  297.  Juridical  Effects  of  these  Acts.  —  The  real  investiture  of 
the  primitive  law  conferred  possession  and  ownership  at  one  and 
the  same  time.^  When  the  delivery  and  the  investiture  became 
separated,  each  one  of  these  acts  had  its  own  special  effects.  If 
the  descriptions  which  are  found  in  documents  (the  "notitiae," 
made  of  the  transaction)  are  any  indication  of  the  importance 
which  the  taking  of  possession  in  fact  had,  it  is  no  less  true  that 
the  symbolical  delivery  constituted  in  law  the  essential  portion  of 
the  operation.  It  carried  with  it  the  transfer  of  ownership;  the 
grantee  had  the  right  to  put  himself  in  possession  in  spite  of  the 
opposition  of  the  grantor,  or  of  third  parties  who  might  have  re- 
ceived the  land  from  him  (real  action).^  Between  two  successive 
assignees  of  the  same  assignor,  the  one  who  had  first  received 
delivery  was  preferred,  and  not  the  one  who  had  first  taken 
possession.^ 

'  Grimm,  p.  184;  Michelet,  loc.  cit.;  Schupfer,  p.  159;  Fertile,  IV,  228; 
"R.  h.  Dr.,"  1869,  1.51;  XII,  p.  85  (taking  possession  of  a  village  in  Alsace  in 
1728);  "Acad.  leg.  Toulouse,"  IV,  28.  In  the  archives  of  the  Haute-Garonne 
are  to  be  found  documents  establishing  the  conveyance  of  the  building  of  the 
Temple  to  the  Order  of  Saint  Jean  in  1.326  by  the  cowl  and  the  keys  of  the 
doors;  the  giving  of  a  garden  by  the  spade  and  the  ring  of  the  door,  etc.  (com- 
municated by  M.  Pasquier).  To  what  extreme  details  they  went  one  may 
judge  by  tliis  citation  borrowed  from  Pollock  and  Maitlund,  II,  89,  3:  (the 
grantor) ' '  reversus  versus  parietem  cepit  mingere. ' '  As  to  the  ' '  sessio  triduana ' ' 
in  Germany,  cf.  Grimm,  p.  190;  Kraut,  p.  172;  Thevenin,  nos.  121,  146,  etc.; 
solemn  "  Circuitus,"  Beselcr,  "Erbvertr.,"  I,  90. 

^  The  previously  existing  contract,  for  example,  the  "sala"  or  sale,  was  only 
effective  if  it  was  made  a  part  of  the  investiture,  cf.  Sohm,  p.  98. 

'  Brunetti,  "Cod.  Dipl.  Tosc,"  I,  103.  —  Was  the  payment  of  the  price 
necessary  to  the  validity  of  the  delivery?  "Rib.,"  59,  60;  "Bai.,"  15,  2; 
Marculfe,  II,  19;  Schupfer,  p.  141  (Lombard  deeds) ;  Pertile,  IV,  225.  The  deeds 
and  formula;  according  to  the  Roman  law  constantly  mention  the  payment  of 
the  price;  the  Germanic  doeda  insist  rather  upon  the  symbols  of  the  delivery, 
and  it  seems  that  the  transfer  of  the  ownership  had  become  an  independent  act 
which  was  valid  when  removed  from  the  consideration  upon  which  it  fl(i)onded. 

*  "Capit.,"  817  (I,  282,  380),  c.  6:  delivery  carried  out  outside  of  the  county 
where  the  land  was  situated;  it  is  sufficient  to  give  surety  that  one  will  per- 
form the  "  vestitura";  the  ownership  is  transferred  independently  of  the  actual 
taking  of  possession:  "Cap.  Olon.,"  825,  c.  11  (I,  331);  Ansegise,  IX,  19; 

373 


§  298]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

§298.  Delivery  "Per  Cartam."  ^  —  It  was  customary  among 
the  Romans  to  draw  up  a  writing  in  order  to  establish  the  transfer 
of  property,  and  to  give  it  to  the  grantee,  to  whom  it  served  as  a 
title.  The  Germans  had  recourse  to  this  proceeding  because  of 
its  practical  advantages,  but  they  gave  it  a  new  bearing  and  char- 
acter: the  giving  of  the  "carta"  became  for  them  the  symbol  of 
alienation;  ^  they  saw  a  delivery  "per  cartam"  ^  where  there  was 
only  a  "traditio  cartse"  for  the  Romans.  The  fusion  of  Roman 
practice  and  German  law  took  place  so  thoroughly  that  formulae 
are  met  with  according  to  which,  upon  the  "carta"  laid  on  the 
ground,  there  was  placed  the  clod  of  earth  and  the  bough  of  the 
tree;  the  whole  thing  was  then  taken  up  from  the  ground  and 
presented  to  the  grantee.^ 

§  299.    Feudal  Period.  —  The  transformation  of  the  system  of 

Thevenin,  no.  105,  etc.;  D.  Vaissefte,  no.  88;  FumagalU,  "Cod.  Dipl.  Ambros.," 
no.  57;  Meichelbeck,  "Hist.  Eccl.  Fris.,"  no.  611.  See  especially  the  example 
cited  by  Schupfer,  p.  154  et  seq.  (dipl.  of  791:  the  grantor  takes  possession  of 
his  own  authority) .  —  Fertile,  IV,  228,  maintains  that  delivery  does  not  transfer 
ownership,  but  only  creates  an  obligation  to  put  the  purchaser  in  possession; 
the  "fidejussores  vestiturise"  would  be  necessary,  because  the  obligation 
would  not  pass  to  the  heirs.  CJ.  Capitulary,  7,  362,  CJ.  -post.,  "Gift  is  not 
Equivalent  to  Seisin." 

1  Example  in  Thevenin,  "Textes";  in  the  formulae  and  in  the  Cartularies, 
where  the  symbols  are  often  lacking,  —  for  example,  Cart,  of  Savigny,  of 
Beaulieu,  etc.).  Cf.  the  rule,  "Ecclesia  vivit  lege  Romana":  Biermann, 
"Trad.  Ficta,"  1891,  p.  18  et  seq.,  33. 

2  Delivery  "per  cartam"  is  looked  upon  as  the  equivalent  of  delivery  by 
the  Germanic  methods.  For  example,  "Form.  Lindenbr.";  "Cart,  de  Redon," 
no.  142.  Importance  of  the  giving  of  the  "carta"  in  the  Anglo-Saxon  law: 
"Bocland."  Sohrn,  p.  101,  n.  3,  believes  that  the  Frankish  law  did  not  with- 
out difficulty  admit  the  delivery  "per  cartam";  thus  in  the  "Cart.  Lombard," 
he  points  out  that  the  delivery  takes  place  by  the  clod  of  earth,  the  glove,  etc. ; 
after  which  the  "carta"  is  given  to  the  notary  "ad  scribendum."  To  the 
contrary,  Brunner,  op.  cit.    Cf.  "K.  V.  J.,"  7,  3,  388  (Tyrol). 

'  The  Frankish  king  transfers  the  ownership  by  the  giving  of  a  "Prae- 
ceptum":  Sohm,  p.  101,  no.  3,  "in  f."  (bibl.),  p.  116.  Cf.  post,  Anglo-Saxon, 
"bocland." 

*  The  "levatio  cartse"  seems  to  have  been  especially  in  use  among  the 
Franks:  Brunner,  "Urk.,"  107;  "Z.  S.  S.,  G.  A.,"  1883,  113.  Examples  in 
Roziere,  "Form.,"  nos.  159,  314  et  seq.;  Thevenin,  "Textes,"  nos.  136,  137 
(Index,  see  "Tradition,"  "Charte");  "Cart.  Langob.";  "M.  G.  H.,  L.  L." 
IV,  595;  "M.  G.  H.,  Dipl.."  no.  280;  "Burg.,"  41;  "Alam.,"  1,  19,  20;  "Bai.," 
15,  2  and  12;  "L.  Rom.  Cur.,"  24,  2;  Brunner,  "Urk.,"  pp.  130,  288;  Prost, 
"N.  R.  H.,"  1880,  10;  Fertile,  IV,  226  et  seq.  In  the  thirteenth  century  deliv- 
ery "per  cartam"  in  Bavaria:  Haeberlin,  "System.  Baarb.  Meichelb.,"  1824, 
p.  204.  One  must  distinguish  between  the  giving  of  the  parchment  to  the 
notary  in  order  that  he  may  draw  up  the  deed  ("traditio  ad  scribendum") 
from  the  giving  of  it  to  the  purchaser  ("traditio  ad  proprium"):  "Cart. 
Langob.,"  form  2;  Forro,  "Cod.  Dipl.  Lang.,"  482.  The  notary  confirms 
the  giving:  "post  traditam  ["  cartam "  understood]  complevi  et  dedi " ;  Schupfer, 
p.  149  et  seq.;  Stouff,  "R.  Bourg.,"  1899.  —  C/.  English  law:  livery  in  deed 
and  giving  of  the  deed  and  a  clod  of  earth,  a  bough,  etc.:  Brunner,  "Urk.," 
p.  539. 

374 


Topic  6]  OWNERSHIP   OF   IMMOVABLES  —  DELIVERY  [§300 

the  ownership  of  land  which  characterizes  Feudalism  had  its  re- 
sult upon  the  methods  of  ahenation.  Between  grantee  and 
grantor  the  lord  was  interposed,  which  resulted  in  making  the 
operation  more  complicated.  Even  originally,  the  fief  and  the 
copyhold,  grants  which  are  made  "intuitu  personae,"  are  inalien- 
able, just  as  they  cannot  be  transmitted  by  inheritance;  the  vas- 
sal and  the  tenant  could  not  alienate  them;  the  most  that  was 
allowed  them  was  the  power  of  abandoning  the  land  which  they 
occupied,  in  which  case  it  reverted  to  the  lord;  he  kept  it  for  him- 
self or  disposed  of  it  for  the  benefit  of  whom  he  pleased  by  mak- 
ing a  new  grant.^  Fiefs  and  copyholds  became  patrimonial,  — 
that  is  to  say,  they  could  be  inherited  and  they  were  alienable. 
But  the  feudal  theory  of  the  transfer  of  ownership  for  a  long  time 
felt  the  result  of  this  primitive  conception :  ^  this  is  the  point  of 
departure  and  the  foundation  of  it. 

§  300.  Fiefs  and  Copyholds.^  —  Alienation  is  divided  into  two 
acts:  (a)  Disseisin  or  divesting;  the  vassal  or  the  copyholder  gives 
back  the  land  to  the  lord  from  whom  he  holds  it  (lord  of  the  land), 
at  the  same  time  declaring  that  he  disseises  himself  of  it  into  the 
hands  of  the  lord;  (b)  Investiture  for  the  fief,  giving  of  seisin  for 
the  copyhold;  they  still  say  "vest,"  "vesture,"  "werp,"  etc.;  the 
lord  delivers  the  land  to  the  grantee,  at  the  same  time  declaring 
that  he  seises  him  of  it.  Thus  one  can  say  that  alienation  takes 
place  by  means  of  disseisin-seisin,  vesting  and  divesting ^    If  a  fief 

1  "L.  Feud.,"  2, 9,  44,  55;  "Ass.  de  J^rus.,"  I,  64,  288,  297  (ed.S.);  "Schwab- 
enspiegel,"  p.  68  (ed.  Matile).  Influence  of  these  ideas:  (a)  on  the  capacity 
to  acquire  the  fief  (commoners,  people  in  mortmain):  Mourmant,  "Those" 
("Precedents  de  I'Edit.  de  1749,"  1900).  (6)  on  partial  alienation  (pro- 
hibition of  cutting  down  the  fief) :  cf.  "T.  A.  C,  Norm.,"  89  etseq.;  "Gr.  Cout. 
Norm.,"  32,  115.  England:  measures  relative  to  sub-inf eudation ;  "Magna 
Charta,"  32;  "Statute  Quia  Emptores,"  1290,  which  had  the  effect  of  greatly- 
extending  the  alienation  of  fiefs;  Pollock,  "Land  Laws,"  p.  70.  No  one  but 
the  king  was  any  longer  permitted  to  make  alienations  in  Frankalmoigne; 
it  was  desired,  in  fact,  that  the  grantee  of  a  portion  of  the  fief  become  the 
immediate  vassal  of  the  dominant  lord.  Post,  English  Law;  Glasson,  "Inst.," 
IV,  253;  Gui  Pape,  pp.  46,  102,  112;  Bucherellus,  "Inst.,"  p.  138. 

2  Merlin,  in  Guyot,  see  "Devoirs  de  Loi,"  p.  526  (ed.  1778):  he  who  sells  the 
feudal  or  servile  inheritance  does  not  transfer  the  ownership  thereof  to  the 
buyer;  he  merely  renounces  the  right  which  he  holds  from  the  lord  and  de- 
prives himself  of  it,  handing  it  to  the  overseers  of  the  latter,  who  then  give  it 
to  the  purchaser,  about  as  the  titulary  of  a  benefice  hands  in  his  resignation 
to  the  collator,  who  then  confers  it  upon  the  person  whom  the  man  resigning 
has  pointed  out  to  him.    Cf.  also  "Resigning  from  an  Office." 

3  Pitou,  "These,"  1899  ("Invest,  f^odale  en  Dr.  Germanique"). 

■•  "L.  Feud.,"  2,  2;  "Cout.  d'Artois,"  ed.  rardif,  XXIII  (p.  64):  a  personal 
belonging  can  be  sold  in  three  cases:  by  agreement  of  the  heir,  because  of 
poverty,  and  to  buy  a  more  fitting  inheritance.  After  the  lord  and  the  men 
of  his  court  have  ascertained  that  the  vendor  has  not  encumbered  the  land 

375 


§  300]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

is  concerned,  swearing  of  fealty  and  homage  are  joined  to  the  in- 
vestiture; this  is  the  principal  difference  that  is  to  be  observed 
between  the  alienation  of  the  fief  and  that  of  the  copyhold.^  In 
both  cases  the  land  is  supposed  to  revert  to  the  grantor,  which 
permits  him  to  exercise  the  right  of  repurchase  by  way  of  reten- 
tion,^ and  the  more  easily  to  demand  the  transfer  tax.^  Disseisin 
and  seisin  were  ordinarily  carried  out  by  means  of  the  giving  of 
the  twig,  or  the  stick,  the  piece  of  wood  and  some  earth,  the  stick 
from  the  border  of  the  wood;  these  symbolical  objects  passed 
from  the  hands  of  the  grantor  into  those  of  the  lord,  and  from  the 
latter  they  passed  to  the  grantee,'*  For  the  investiture  of  large 
fiefs,  either  at  the  death  of  the  vassal  or  in  case  of  alienation,  use 
was  made  of  the  banner,  the  sceptre,  the  lance,  or  the  sword.^    It 

(by  means  of  an  assignment,  post,  "Mortgages")  the  latter  buys  back  the 
inheritance  by  the  branch  and  the  rod  ("raim  et  baston")  from  the  lord. 
The  court,  upon  the  demand  of  the  lord,  pronounces  judgment  to  the  effect 
that  the  lord  give  the  seisin  to  the  purchaser;  and  the  lord  then  does  so,  after 
having  asked  the  seller  if  he  has  been  paid  and  if  he  is  sure  of  the  integrity 
of  the  purchaser,  by  saying  to  the  purchaser,  "I  give  you  the  seisin,  except- 
ing all  my  rights":  "Gr.  Gout,  de  Fr.,"  II,  23  (p.  264).  Cf.  c.  25,  26;  Des)nares, 
189;  "Gout.  Not.,"  124,  135,  72,  53;  Boutillier,  I,  67,  p.  397  (ed.  IGO^) ;  Loysel, 
641.  The  "Grand  Gout.,"  loc.  cit.,  no  doubt  establishes  the  general .  custom 
by  saying  that  one  should  obtain  letters  of  seisin.  Cf.  Beaiunanoir,  20,  35; 
6,  4;  "Gonst.  du  Ghat.,"  §§  82,  85,  86;  "Schwabenspiegel,"  ed.  Mat.,  p.  75; 
"Ass.  de  Jerus.,"  "G.  des  Bourg.,"  II,  253,  271  et  seq.,  ed.  B. 

1  According  to  the  "L.  Feud.,"  2,  4,  investiture  should  precede  fealty  and 
homage:  "Gr.  Gout.,"  p.  271. 

2  See:  "Retrait  Beam.,"  51,  21;  Desmares,  204;  "Gr.  Gout.,"  2,  25.  Cf. 
"Paris,"  20. 

3  Beaumanoir,  27,  7;  Desmares,  189  et  seq.,  201,  364;  "Gr.  Gout.,"  pp.  265, 
273.  For  the  fief,  the  lord's  fifth;  for  copyholds,  the  lord's  due  and  sales: 
Loysel,  572  et  seq.,  and  treatises  on  the  Feudal  law,  —  for  example,  Boutaric. 
The  "Gr.  Gout.,"  op.  cit.,  distinguishes  between  sales  and  seisins,  the  due  to 
be  paid  because  of  the  sale  and  the  due  to  be  paid  because  of  the  investiture. 
Beaumanoir  only  speaks  of  sales  (see  especially  c.  27  and  c.  52);  according 
to  him  it  is  the  vendor  who  pays  them;  but,  as  they  come  out  of  the  inherit- 
ance, the  buyer  is  authorized  to  keep  back  a  portion  of  the  price  in  order  to 
pay  them  if  it  is  necessary;  the  parties  may  furthermore  agree  that  this  pay- 
ment shall  be  made  by  the  buyer.  And  no  doubt  it  is  upon  the  buyer  that  the 
obligation  comes  in  the  last  analysis.  The  lord  only  proceeds  to  give  seisin 
after  he  has  been  paid:  "Gr.  Gout.,"  pp.  267,  276  ("Quint  et  Requint"); 
"Paris,"  24. —  C/.  "Toulouse,"  135,  137,  142  et  seq.;  "Montpelher,"  11,  41, 
61,  66,  108,  VIII;  "Bordeaux,"  128. 

'*  Du  Cange,  loc.  cit.;  Ragueaii,  see  "Rain,"  "Mettre  la  main  au  baston" 
(the  vassal  can  have  the  use  of  his  fief  until  it  is  taken  possession  of  by  the 
rod  or  until  he  is  freed  from  his  oath),  "Adhcritance"  (taking  of  seisin  by 
the  purchaser),  "Desh^ritance"  (disinheriting);  Brodeau,  on  51,  "Paris," 
no.  7  (bibl.);  Pasquier,  "Rech.  de  la  France,"  8,  58:  sometimes  it  is  the  seller 
and  sometimes  it  is  the  judge  who  gives  the  rod  to  the  buyer  {cf.  post,  "Free- 
holds"): "Ass.  de  J(5rus.,"  I,  p.  218  (ed.  B.);  II,  p.  253  (at  law);  "Parloir 
aux  Bourg.,"  pp.  145,  162;  supra,  p.  317,  2. 

*  "L.  Feud.,"  2,  2.  Cf.  2,  33,  etc.;  Ragueau,  see  "Rain";  Du  Cange,  loc.  cit. 
To  the  lance  was  also  added  the  standard  for  the  investiture  of  principalities. 
The  bishops  and  abbots  were  invested  with  their  offices  by  the  giving  of  the 

376 


Topic  6]  OWNERSHIP   OF   IMMOVABLES  —  DELR'ERY  [§  300 

was  not  upon  the  land  itself  that  these  formalities  took  place,  but 
at  the  lord's  court,  before  the  lord  or  his  officer.^  By  this  means 
the  exigencies  of  the  old  law  were  satisfied,  as  far  as  publicity  was 
concerned,  and  the  usage  of  symbolical  deliveries  and  deliveries  in 
law  was  upheld.  It  would  have  been  hardly  practical,  and  scarcely 
in  accord  with  the  part  played  by  the  lord  in  this  act,  to  compel 
him  to  go  upon  the  land.^  Under  these  conditions  the  investiture 
of  the  fief,  or  the  taking  of  the  seisin  of  the  copyhold,  had  to  be 
accompanied  by  a  putting  in  possession  in  fact,  in  order  to  pro- 
cure for  the  grantee  all  the  advantages  of  possession ;  ^  it  was  also 
preceded  by  a  preliminary  agreement,  a  sort  of  "justa  causa  tra- 
ditionis."  ^  But  of  these  three  acts,  the  one  which  carried  out 
the  transfer  of  ownership  was  the  investiture  or  giving  of  seisin.^ 
One  may  even  ask  oneself  if  this  did  not  mean  the  acquiring  of 
the  possession  in  law,  —  that  is  to  say,  of  the  right  to  bring  the 
possessory  actions.^  It  is  beyond  a  doubt  that  the  grantee  who 
was  invested,  or  given  the  seisin,  had  the  right  to  enter  into 
possession  upon  his  own  authority.^    The  investiture  was  estab- 

"virga  pastoralis,"  of  the  crozier  and  the  ring:  "Sachsensp.,"  3,  80,  1.  As  to 
the  "querelle  des  investitures"  (assizes  of  investitures),  cf.  Schroeder,  p.  399; 
Esmein,  "Bibl.  Ec.  Hautes  Et.,"  I,  {Yves  de  Chartres). 

1  Supra,  notes.  To  the  contrary,  "Bayonne,"  91,  1:  the  lord  of  the  manor 
goes  upon  the  land  and  withdraws  the  seller  from  it  upon  payment  of  a  due 
for  going  out  and  installs  the  buyer  upon  it  upon  payment  of  a  due  of  entry. 

2  "Paris,"  63;  Lo!/se/,  531  (portable  rent). 

3  Can  the  tenure  of  a  year  and  a  day  take  the  place  of  the  seigniorial  in- 
vestiture as  against  third  parties?    Desmares,  189. 

■•  The  man  selling  keeps  the  ownership  until  the  lord  has  conferred  seisin; 
but  the  seller  can  be  compelled  to  carry  out  the  investing  or  the  conferring  of 
the  seisin:  Boutaric,  I,  67;  Bemimanoir,  c.  27,  7,  8  (if  there  has  been  a  giving 
of  seisin  the  seller  cannot  take  back  his  land  excepting  by  virtue  of  a  new  sale) ; 
Benumanoir,  35,  20  (deed  of  sale);  23  (letters  of  leasing);  "Gr.  Cout.,"  pp.  266, 
267,  301;  Biermann,  "Trad.  Ficta,"  p.  277  (bibl.). 

5  Procedure  in  a  case  where  the  lord  refuses  to  give  the  seisin:  "Gr.  Cout.," 
pp.  268,  280,  285. 

*  Does  not  the  seigniorial  giving  of  seisin  which  makes  the  buyer  the 
owner  also  make  him  the  possessor?  Desmares,  62,  177;  "Cout.  Not.,"  53; 
"Gr.  Cout.,"  2,  19,  p.  234;  Ragueau,  "Gloss.,"  see  "Vest:  investitura  non 
facit  posscssorem " ;  Loysel,  747.  — The  tendency  of  the  Romanists  i.s  to  re- 
quire a  material  delivery.  Practice  resisted  this:  Biermann,  "Traditio  Ficta," 
p.  61;  Ciui  Pape,  "Q.,"  415;  the  investiture  does  not  give  possession,  but 
the  right  of  putting  oneself  in  possession  of  one's  own  authority:  cf.  "Q.," 
46  (where  he  distinguishes  between  copyholds  and  freeholds,  post,  "Clause  of 
Tenure  at  Will"). 

^  Beaumanoir,  c.  34,  13:  the  purchaser  who  has  been  given  the  seisin  by 
the  lord  wishes  to  take  possession  of  the  inheritance;  the  farm  tenant  or  the 
mortgagor  repulses  him;  their  chiims  will  bo  set  aside  by  tho  law.  Tiie  only 
moans  that  the  farm  tenant  and  tlu;  mortgagor  have  of  obtaining  a  right  whifh 
th(!y  can  oppose  to  the  purchaser  consists  in  having  the  seisin  conferred  upon 
themselves  by  the  lord  from  whom  the  land  is  held.  Cf.  post,  "Sale  is  pre- 
ferred to  lease." 

377 


§  300]  OWNERSHIP    AND    REAL    RIGHTS  [Chat.  II 

lished  at  an  early  period  by  a  written  deed;  but  in  the  eighteenth 
century  these  deeds  were  no  longer  required,  as  we  shall  see;  the 
acts  of  fealty  and  homage  took  their  place  as  regards  fiefs,  and 
the  performance  of  the  seigniorial  rights  as  regards  copyholds. 
INIoreover,  one  knows  that  tlie  seigniorial  rights  of  acknowl- 
edgment and  census  were  often  established  by  means  of  the 
Rolls} 

§301.  The  Same. — The  lord  gave  the  investiture,  "always 
saving  all  rights."  ^  The  result  of  this  reservation  was  that  the 
rights  of  third  parties  were  not  cleared  away,  as  one  would  be 
tempted  to  believe,  as  a  consequence  of  the  reversion  of  the  land 
to  the  lord.  It  is  probable  that  this  was  not  the  primitive  law; 
the  lord  ought  to  take  back  the  property  free  from  all  rights;  at 
least,  those  which  his  vassal  or  his  copyholder  had  granted 
could  no  more  be  set  up  in  opposition  to  him  than  could  an  aliena- 
tion of  the  whole  property.^  The  only  doubtful  case  was  that  in 
which  ownership  was  contested;  the  grantor  might  be  only  an 
apparent  owner;  had  the  "verus  dominus"  the  right  to  reclaim 
the  property  as  his  own  after  the  investiture  or  giving  of  seisin  to 
a  third  party?  The  answer  depended  on  the  role  one  gave  to  the 
lord  and  to  the  feudal  court;  if  they  were  compelled  to  look  into  the 
circumstances  upon  which  the  alienation  was  based,  to  pass  upon 
the  rights  of  the  grantor,  then  the  confirmation  of  the  deed,  if  it 
was  done  with  a  knowledge  of  the  facts,  might  have  the  result  of 
extinguishing  the  rights  of  third  parties,  even  supposing  that  they 
had  not  been  present.*  It  seems  as  though  this  tendency  were  to 
be  found  in  the  early  Feudal  law;  ^  but  it  was  the  contrary  tend- 
ency which  prevailed.^  The  intervention  of  the  lord  and  of  his 
court  becomes  almost  a  mere  formality;  they  were  contented  with 
estimating  the  apparent  irregularity  of  the  deed,  leaving  to  the 
tenure  of  a  year  and  a  day  the  effect  of  speedily  wiping  out 
the  claims  of  third  parties,  as  well  as  those  of  the  assignees  of 

1  See  Ferriere,  "Le  Parfait  Notaire,"  I,  15,  c.  7  and  8. 

2  " Artois,"  "Gr.  Gout.,"  etc.;  Beaumanoir,  20,  2;  Varin,  "Arch,  de  Reims," 
I,  844. 

»  See  "Alienation  of  the  Fief." 

*  Precedents  in  Barbarian  law. 

*  This  is  what  may  be  deduced  from  the  provisions  of  the  "Ass.  de  Jerus.," 
Jean  d'lhelin,  c.  185,  187  (I,  pp.  64,  288,  297,  etc.);  from  the  "Gout.  d'Artois," 
XXIII,  and  from  Beaumanoir,  51,  18.  The  feudal  court  assures  itself  of  the 
validity  of  the  rights  of  the  grantor. 

6  "L.  Feud.,"  2,  8;  "Gout.  d'Artois,"  ed.  Tardif,  XXV;  Beaumanoir,  51, 
18.  Simply  because  the  man  who  has  been  put  out  of  possession  had  the 
seisin,  the  lord  should  invest  the  third  party  in  whose  interest  the  disseisin 
has  been  made. 

378 


Topic  6]  OWNERSHIP    OF    EVLMOVABLES DELR'ERY  [§  302 

the  grantor,  or  those  of  his  family.^  The  investiture  or  giving  of 
seisin  thus  only  took  place  with  a  reservation  of  the  right  of  the 
lord  himself  and  the  rights  of  others. 

§  302.  Freehold  Tenure.^  —  There  could  be  no  question,  as  far 
as  a  freehold  estate  was  concerned,  of  the  investiture  or  giving 
of  seisin  by  the  lord,  because  disseisin  into  the  hands  of  the 
lord  would  have  been  a  denial  of  the  right  of  the  freeholder.^ 
The  law  of  the  barbarian  period  thus  persisted  on  principle,  ex- 
cepting for  a  tendency  to  assimilate  the  alienation  of  freeholds  to 
that  of  fiefs  or  copyholds.  In  the  South,  in  countries  of  written 
law,  delivery  takes  place  "per  cartam,"  or,  at  least,  a  deed  is 
drawn  up  by  the  notary  in  order  to  establish  the  sale  and  the 
delivery  or  "guirpitio."  ^  Without  doubt,  there  was  not  any  tak- 
ing of  possession  by  the  grantee ;  the  parties  were  content '  with 
declaring  before  the  public  officer  that  they  had  sold  and  de- 
livered ("vendidi  et  tradidi").^  The  deed  once  drawn  up  and 
delivered  to  the  grantee,^  it  is  the  delivery  of  the  deed  ''  which  is 
sometimes  accompanied  by  symbolical  acts,  like  the  delivery  of 
the  notary's  pen.^  The  grantee,  by  virtue  of  this  act,  has  the  right 
to  put  himself  in  possession  by  his  own  authority.^  But  under 
the   influence   of   the  Roman  law,  an  actual  delivery  prevailed 

1  See  "Tenure  of  a  Year  and  a  Day." 

2  "Dig.Ital.,"  see  "Allodio."  See  investiture  and  tlie  giving  of  public 
notice  at  Metz.  As  to  burgage  and  free  urban  tenure,  cf.  Genestal,  "These," 
1900;  Desmares,  "Et.  sur  la  Propriety  fonciere  dans  les  Villes  du  Moyen  Age," 
1898. 

3  "Gr.  Gout.,"  2,  33  (p.  325);  Boutillier,  I,  83  (p.  490,  ed.  1603). 

*  Examples  in  the  Gartularies  ("Cart,  de  St.-Sernin,"  numerous  deeds  of 
the  twelfth  century;  we  read  there  merely  "gurpivit  et  vendidit"  or  similar 
formulse;  "facta  carta"  and  the  date;  "hujus  rei  sunt  testes  N."). 

6  "Gout,  de  Toulouse,"  Art.  93  (ed.  TardiJ);  Tardif,  "Dr.  Priv4  au  XIIP 
siecle,"  1886. 

8  These  deeds  of  purchase  have  served  as  a  basis  for  the  drawing  up  of 
the  Gartularies. 

^  "G6de"  or  "c6dule"  (from  "scheda"),  deed,  writing:  Serves,  "Inst.," 
II,  1,  44:  feigned  delivery,  which  takes  place  by  the  delivery  of  the  keys  as 
well  as  that  which  takes  place  by  the  lease  of  the  deed  or  of  the  pen  of  the 
notary,  which  are  mentioned  in  the  I,  1,  "God.  Just.,"  "de  don.";  Soulatgcs, 
"Gout,  de  Toulouse,"  1770,  p.  236;  "Th6orie  et  Prat,  des  Notaires,"  Grenoble, 
1629,  p.  141.  —  This  means  the  lease  or  handing  over  of  the  contract  of  sale, 
and  not  the  deeds  of  ownership  of  the  seller;  this  is  what  the  e.xpression  "lease 
of  the  deed"  means.  —  As  to  the  doctrine  of  the  Glossators  and  the  post- 
Glossators  on  the  subject  of  the  "instrumentalis  traditio,"  cj.  Bierinann, 
"Traditio  Ficta,"  pp.  22,  47,  102,  273.  See  especially  Azo,  "Lect.  ad.  1.  1, 
C.  de  don.  si  vendidi  et  traditur  instrumentum  emptionis."  Post,  nos.  22 
et  sea. 

*  It  is  the  pen  with  which  they  write.  Sometimes  a  touching  of  the  hands 
of  the  seller  and  the  purchaser.  —  The  Romanists  protest  against  these  old 
practices;  thus  Ilosliensis  (cited  by  Gui  Fape,  "Q.,"  22). 

9  "Toulouse,"  93.    Post,  nos.  22  et  seq. 

379 


§  302]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

over  a  symliolical  delivery;  practice  had  to  find  a  means  of  pre- 
serving for  the  deed  its  former  effects  (see  below,  agreement  in  lieu 
of  delivery,  clause  of  tenure  at  will).^  —  In  countries  of  Customary 
law,  where  the  freehold  is  more  rarely  found,  the  law  is  rather 
confused.  The  drawing  up  of  a  written  matter  and  material  de- 
livery are  sometimes  required.^  At  other  times  the  parties  go 
before  the  lord  ^  and  proceed  with  the  disseisin-seisin  without  the 
lord  himself  taking  any  part;  the  stick  passes  directly  from  the 
grantor  to  the  grantee;  or,  at  least,  if  the  lord  gives  it,^  it  is  not 
as  a  sign  of  his  soverign  power;  he  only  takes  part  in  the  matter 
in  order  to  give  it  the  required  publicity,  because  of  his  judicial 
authority,  which  extends  over  freeholds  as  it  does  over  fiefs  and 
manors  of  his  tenure.  This  is  the  system  of  the  Customs  of  public 
nams  described  below.^ 

§  303.  Monarchic  Period.  —  The  system  of  transfer  just  de- 
scribed followed  the  vicissitudes  of  feudal  ownership,  and  was 
modified  like  the  latter,  or  even  almost  entirely  disappeared,  — 
so  much  so,  that  Customary  France  was  divided  into  two  parts 
upon  this  question  of  the  transfer  of  ownership.  1st.  Countries 
of  public  nams,^  an  important  group  of  provinces  of  the  North 
and  East,  to  which  the  Netherlands  were  attached  as  a  natural  de- 
pendency. 2d.  The  provinces  which  followed  the  common  law, 
—  that  is  to  say,  the  larger  portion  of  the  Customary  country, 
which  was  here  subjected  to  a  legislation  almost  identical  with 

*  Biermann,  "Traditio  Ficta,"  p.  37  et  seq. 

^  Boularic,  I,  84:  a  declaration  made  before  a  notary  and  letters,  or  made 
under  his  seal  before  witnesses,  if  he  has  a  seal  that  is  known,  "Laon.,"  133: 
taking  of  actual  possession:  "Sedan,"  217;  "Vitry,"  126;  "Troyes,"  144, 
etc.;  Chenon,  "Alleux,"  191. 

'  "Hainaut,"  106,  94,  30,  34  (giving  of  seisin  before  four  o'wners  of  free- 
holds and  a  fifth  one  who  asks  them  to  establish  the  regularity  of  the  trans- 
action ["les  conjures"]):  Merlin,  "Rep.,"  see  "Francq-Alloetier";  "Guisnes," 
16;  "Luxembourg,"  tit.  V;  Prost,  "N.  R.  H.,"  1880  (Metz);  Vann,  "Arch,  de 
Reims,  Gout.,"  I,  711. 

*  "Reims,"  139,  162  et  seq.  (the  method  of  alienation  which  is  used  for  the 
copyhold  is  applied  to  the  freehold). 

5  There  is  every  reason  to  believe  that  it  is  connected  with  the  method 
of  alienation  of  the  feudal  period:  Salvioli,  "R.  Ital.  p.  1.  sc.  Giur.,"  18,  2. 

'  [The  French  word  "  Nantissement,"  so  important  as  a  classification,  has 
so  many  and  various  suggestions,  that  any  common  English  word,  conveying 
fixed  implications,  would  be  radically  misleading.  "Nantir"  is  to  pledge 
or  to  assure;  yet  "nantissement"  conveys  the  notion  of  a  public  registration. 
Etymologically,  the  word  is  identical  in  origin  with  our  now  obsolete  "nam" 
(as  in  "withernam");  this  is  seen  especially  in  the  history  of  mortgages 
(post,  Topic  VI).  To  avoid  misunderstanding,  the  term  "public  nams"  has 
here  been  coined  (see  "nam,"  "nim,"  in  the  Century  Dictionary).  This  keeps 
the  French  root,  and  also  the  implication  inherent  in  the  French  word.  — 
Trans.] 

380 


Topic  6]  OWNERSHIP    OF    IMMOVABLES  —  DELIVERY  [§  304 

that  of  the  countries  of  written  law.  To  these  two  systems, 
which  were  still  in  force  at  the  time  of  the  Revolution,  we  may 
add  by  way  of  interesting  variations  the  Breton  Public  Investiture, 
Taking  by  Proclamation  at  ]\Ietz,  the  "Auflassung"  of  the  Ger- 
man law,  and,  finally,  the  English  practice  under  its  different 
forms.  In  general,  everywhere  there  is  a  tendency  to  get  away 
from  the  feudal  forms,  because  they  are  troublesome,  and  be- 
cause they  no  longer  agree  with  the  condition  of  the  law.  The 
majority  of  the  Customs  went  too  far  in  obeying  this  need  of 
simplification  and  logic.  Others,  more  faithful  to  tradition,  re- 
spected the  old  forms;  they  even  finished  by  giving  them,  while 
they  touched  them  up  a  bit,  a  signification  and  a  bearing  which 
they  scarcely  had  when  they  originated;  by  diverting  them  from 
their  object,  they  were  brought  into  conformity  with  new  needs, 
and  there  were  discovered  in  them  advantages  of  a  nature  to 
make  up  for  the  fetters  upon  the  freedom  of  contracting  which 
they  carried  with  them.  Between  these  two  tendencies  the  Nine- 
teenth Century  has  hesitated. 

§  304.  (I)  Customs  of  Public  Nams.^  —  The  practice  of  public 
nams  ^  (of  duties  or  acts  of  law,^  seisin  taken  by  a  purchaser,  etc.)^ 
is  only  a  changed  form  of  the  old  feudal  system,  and  was  main- 
tained in  the  North  of  France  and  in  the  Netherlands^  because 
of  practical  advantages  which  were  foreign  to  the  original  con- 

*  Ragueau,  Guyot,  see  "Nantissement,"  "V^ture,"  "Devoirs  de  Loi," 
"Adheritance,"  "Main  Assise,"  "Mise  de  Fait,"  "Werp,"  "Gurpir,"  "Vest," 
etc.;  Britz,  p.  903  (Belgian  bibl.);  Hericourt,  "Vente  des  Imm.  par  Decret.," 
1739,  p.  264;  Desmares,  op.  cit. 

2  This  word  has  two  meanings:  1st,  a  judicial  deed  or  group  of  the  formali- 
ties of  acts  of  law;  2d,  the  effect  of  this  deed,  —  that  is  to  say,  the  acquisition 
of  an  inheritance  by  right  of  ownership,  usufruct,  mortgage,  etc.  Cf.  "nam," 
"namps,"  "nants"  pledge,  a  word  which  is  connected  v/ith  the  German 
"nehmen,"  to  take  {Haliaus,  "Gloss.,"  1405);  "Summa  Norm.,"  VII,  "de 
liberatione,  namnorum";  Schmid,  "Ges.  d.  Angels.,"  "Gloss.,"  see  "Nam," 
"Gout,  de  Reims."  In  Varin,  "Arch,  de  R.,"  I,  733,  the  creditor  presents  to 
the  lord  (or  to  his  court)  binding  letters  of  debt  and  asks  him  to  secure 
them  out  of  the  inheritances  held  from  him  as  fiefs  or  copyholds,  so  that 
he  shall  not  invest  any  one  with  these  inlieritances  excepting  subject  to  a 
mortgage. 

'  As  to  the  word  "loi,"  cf.  Ragueau  ("lois  de  ville  jurde"  means  body  of 
aldermen;  "villes  de  loi  "  means  a  body  of  aldermen,  etc.).  "GEuvres  de  loi" 
(acts  of  law)  thus  means  "ccuvres  de  justice"  (acts  of  justice,  or  of  the  court). 
Cf.  "leges,"  or  legal  proofs  of  the  "Summa  Norm.,"  10,  2  ("loi  simple"  means 
proof  of  oath;  "loi  apparaissant "  means  proof  by  duel,  etc.). 

*  They  also  say  "werp,"  disseisin-seisin,  conversion  into  money,  etc. 

s  "Hainaut,"  94;  "Li^ge,"  6;  "Artois,"  71;  "Lille"  ("La  Salle"),  10; 
"Vcrmandois,  N.C.,"  126  etseq.;  "Cambrav,"  5;  "Amiens,"  137;  "Chauny," 
2;  "Reims,"  142,  162;  "Boulonnais,"  115;  "Ponthieu,"  111;  "Douai,"  ("des 
don.  et  vend.");  "Ribemont,"  51;  "P(5ronne,"  259;  "Laon,"  126;  "Valois," 
13  et  seq.;  "Sedan,"  258;  "Senlis,"  19;  "Noyon,"  34. 

381 


§  304]  OWNERSHIP    AND    REAL    RIGHTS  [Chap.  II 

ception.  The  solemnities  of  the  investiture,  or  the  giving  of 
seisin,  which  were  destined  to  assure  to  the  lord  the  payment  of 
his  profits,  served  especially  to  give  to  the  transfer,  or  to  the 
establishment  of  real  rights,  the  authenticity  and  publicity  which 
are  demanded  by  a  well-organized  system  of  land  credit.  At  least 
it  is  in  this  sense  that  the  law  progressed,  tending  more  and  more 
to  depart  from  its  feudal  connection.^ 

§  305.  The  "Acts  of  Law "  consisted  in  the  vesting  and  divesting, 
such  as  we  have  described  them,  but  with  this  difference,  that 
they  were  not  generally  carried  out  before  the  lord,-  but  before 
the  seigniorial  or  royal  judges.  The  tribunal  to  which  one  must 
applj'^  varies.  Sometimes  a  distinction  is  made  between  fiefs  and 
villein  tenures,  in  conformity  with  the  Feudal  law;  in  the  case  of 
fiefs  it  is  the  feudal  court,  composed  of  a  bailiff  and  men  who  hold 
fiefs;  in  the  case  of  copyholds  the  aldermen's  court,  which  is  com- 
posed of  a  provost,  mayor  and  the  copyholders.  These  two  courts 
are  those  of  the  lord  of  the  tenure  within  which  the  property  is 
to  be  found;  sometimes,  due  to  a  noticeable  progress,  it  is  the  tri- 
bunal or  the  lawyers  of  the  locality  where  the  land  is  situated.^ 
Freeholds  are  subjected  to  these  formalities  as  well  as  fiefs  and 
copyholds,  —  at  least,  in  the  Netherlands  (for  example,  the  pres- 
ence of  four  freeholders,  and  a  summonser  who  calls  upon  them, 
that  is  to  say,  requires  them  to  establish  the  regularity  of  the 
transaction).^  The  "  acts  of  law  "  are  thus  judicial  acts;  the  sym- 
bolical formalities  have  lost  their  importance  and  have  become 
detached  from  it  in  certain  Customs.  There  are  localities  where 
everything  is  reduced  to  a  simple  recognizing  of  the  contract  at 
law;  ^  the  same  person  could  then  play  the  part  of  grantor  and 

1  This  is  what  was  declared  in  the  Placards  of  the  princes  of  the  House  of 
Austria  for  the  Netherlands  of  Februarj^,  1528,  and  Dec.  6,  1586:  to  avoid 
frauds  and  deceitful  selling;  cf.  especially  the  "Edit  Perpetuel"  of  1611.  This 
motive  accounts  for  the  extending  of  the  feudal  custom  to  freeholds  {cf.  as  to 
this,  "Hainaut,"  106),  publicity  by  means  of  registers.  Ordinarily,  it  was 
required  that  contracts  transferring  real  rights  should  be  authentic:  "Ver- 
mandois,"  119;  "  Reims,"  180';  Regulating  Order  of  the  Parliament  of  Flanders, 
Oct.  4,  1765;  Aug.  27,  1676;  "Roisin,"  p.  444. 

*  Cf.,  however.  Merlin,  in  Guyot,  see  "Devoirs  de  Loi"  (the  lord  can 
replace  his  bailiff  or  his  provost,  because  this  comes  within  his  gracious 
jurisdiction). 

2  Details  in  Merlin,  loc.  cit.;  Britz,  p.  906;  Raepsaet,  "Orig.,"  no.  103; 
Placard  of  Sept.  16,  1673. 

^  Placards  of  Feb.  10,  1538:  Dec.  6,  1586.    Holland:  vassals  also.    "Hai- 
naut,"   69,  106;  "Luxembourg,"  5,  7  (under  the  azure  of  the  sky), 
"conjure"   is  in   the    Netherlands  a   formality    essential  to  every   public 
nams. 

5  "Amiens,"  137;  "P^ronne,"  264;  "Douai,"  2,  2. 

382 


Topic  6]  OWNERSHIP    OF   niMOVABLES  —  DELIVERY  [§  306 

grantee,  could  disseise  himself  in  the  name  of  the  grantor  and 
seise  himself  in  his  own  name,  which  would  have  been  too  repug- 
nant in  a  place  where  the  custom  of  the  giving  of  the  stick  or 
the  fagot  had  persisted.^  Several  Customs  demanded  that  con- 
tracts by  virtue  of  which  legal  duties  passed  should  be  proved  by 
means  of  authenticated  deeds.  As  in  the  case  of  vesting  and  di- 
vesting, the  extent  and  the  limits  of  an  inheritance  which  was 
sold  or  mortgaged  had  to  be  specified  therein.^  From  this  it  re- 
sulted that  general  mortgages  were  not  possible  in  countries  of 
public  nams,  any  more  than  were  secret  mortgages.^  The  pub- 
licity which  constituted  an  essential  element  of  the  system  of 
public  nams  would  have  been  temporary  if  it  had  been  limited 
to  the  formalities  of  vesting  and  divesting;  it  was  made  permanent 
by  demanding,  in  order  to  make  legal  duties  valid,  that  they 
should  be  registered  in  the  clerk's  office  of  the  judges  who  had 
received  them;  ^  for  the  register  upon  which,  in  the  order  of  their 
dates,  the  giving  of  pledges  was  inscribed,  was  accessible  to  the 
public. 

§  306.  The  Same.  —  This  system  was  only  applied  to  the  alien- 
ation of  immovables  "inter  vivos";  alienations  "mortis  causa" 
(by  intestate  succession  and  by  will)  did  not  give  rise  to  it;  it 
was  then  said  that  the  transfer  took  effect  by  operation  of  law. 
This  no  doubt  was  due  to  two  reasons,  —  first  of  all  to  the  feudal 
origin  of  public  nams,  and  then  again  to  the  fact  that  in  the  case 
of  changes  caused  by  death  the  transmission  of  property  was  sur- 
rounded with  a  sufficient  publicity  because  of  the  circumstances 
under  which  it  took  place.^  Subject  only  to  this  distinction,  one 
can  say  that  alienations  of  a  part  were  not  treated  differently 
from  alienations  of  the  whole;  the   "acts   of  law"  were  thus 

1  "Verm.  T.  A.  C,"  91;  "N.  C,"  126;  "Lille,"  80;  "Artois,"  2,  7. 

2  "Reims,"  176;  Edict  of  Apr.,  1676,  etc. 

^  At  least,  generally;  for  in  Vermandois,  at  Reims,  etc.,  public  nams 
was  only  required  in  cases  of  mortgages  formed  by  agreement.  CJ.  Merlin, 
see  "Nant.,"  §  2;  "Cambrai,"  5,  11. 

*  "Vermandois,"  119  el  seq.;  "Reims,"  177;  "Amiens,"  145;  Placard  of 
Sept.  16,  1673.  —  Contra:  "Artois"  "Hainaut,"  Merliii,  see  "Devoirs  de 
Loi."  —  Giry,  "Hist,  de  St.-Omer,  p.  187:  "greffe  des  werps"  in  the  four- 
teenth century. 

^  Partitions  because  of  their  declaratory  character  and  contracts  of  mar- 
riage because  they  include  advancements  of  heirship  were  treated  in  the  same 
manner  as  wills.  Let  us  observe  outside  of  any  divergencies  upon  these  points 
that  there  is  a  tendency  to  submit  wills  to  a  judicial  ratification  and  to  regis- 
tration. Guyot,  see  "Rapport  de  Loi,"  " Nantissement " ;  Dritz,  p.  912. — 
Alienations  carried  out  by  the  sovereign  and  alienations  of  fictitious  immova- 
bles, such  as  a  constituted  rent  or  an  office,  are  also  converted  into  money 
of  absolute  right  because  of  other  motives:  Varin,  loc.  cit.,  supra. 

3S3 


§  306]  OWNERSHIP    AND    REAL   RIGHTS  [Chap.  II 

required  in  order  to  establish  real  rights/  and  especially  for  the 
establishment  of  a  mortgage.^ 

§  307.  The  Effects  of  public  nams  are  remarkable.  —  (I)  "In- 
ter partes."  The  ownership  is  not  transmitted  nor  the  real  right 
established  as  long  as  the  public  nams  has  not  taken  place.  This 
does  not  mean  that  the  contract  —  for  example,  the  sale  —  is 
not  valid;  it  holds  good,  and  there  results  therefrom  a  personal 
action  for  the  benefit  of  the  buyer  against  the  vendor.^  (II)  "  Erga 
alios."  All  the  more  can  the  alienation  not  be  challenged  by  third 
parties  on  the  ground  of  lack  of  investiture.  Of  two  grantees, 
the  first  who  takes  public  nam  prevails  over  the  other;  of  two 
mortgage  creditors,  the  first  who  takes  public  nam  is  preferred 
to  the  other  (excepting  if  there  has  been  fraud).  Thus  the  effect 
of  the  public  nam  is  to  get  rid  of  the  rights  of  third  parties  over 
the  immovable,  if  these  rights  have  not  themselves  been  vested 
by  means  of  the  taking  of  seisin  by  the  purchaser.  But  the 
"verus  dominus"  by  public  nam,  and  the  mortgage  creditor  by 
public  nam,  preserve  their  rights,  pursuant  to  the  feudal  rule 
(ante,  §  301)  that  the  lord  gives  the  seisin,  always  saving  his 
right  and  that  of  others.  The  effect  of  Breton  public  investiture 
was  different,  as  we  shall  see;  for  the  basis  of  the  formalities  of 
that  system  was  a  summons  to  the  interested  parties  to  set  forth 
their  rights,  under  penalty  of  losing  them.  —  The  taking  of  pos- 
session in  fact  '^  could  not  take  the  place  of  public  nams;  the 
most  that  it  allowed  a  grantee  was  to  make  use  of  the  posses- 
sory action;  ^  but,  undoubtedly,  under  the  influence  of  the  Roman 
law,  in  the  end  it  was  admitted  that  prescription  (ten  years  in 
Vermandois)  was  as  good  as  taking  of  seisin  by  the  purchaser.^ 

§  308.  The  Public  Nam  Customs  differed  too  greatly  from  the 
common  law  of  monarchic  France  to  remain  immune  from  an 
attempt  to  assail  their  special  system  with  relation  to  the  alien- 
ation of  immovables.  The  Edict  of  June,  1771,  Art.  35,  and  the 
Declaration  of  June  23,  1772,  abolished  the  usage  of  seisin  and 

1  "Edit  Perp.,"  July  12,  1611,  Art.  24  (Netherlands):  no  real  right  over 
immovables  can  be  acquired  unless  by  acts  of  law. 

2  "Cambrdsis,"  5,  1;  "Cout.  de  La  Salle  de  Lille,"  three  motives  for  creat- 
ing a  mortgage. 

3  Merlin,  p.  125  (in  Guyot,  see  "Nant.,"  ed.  1781,  XLI). 

*  The  taking  of  seisin  by  the  purchaser  gives  him  the  ownership  of  the 
property  and  the  right  to  take  possession  of  it  of  his  own  authority:  "Li^ge," 
6,  8.  In  Vermandois  taking  possession  in  fact  is  sufficient  in  the  case  of 
freeholds. 

5  "Vermandois,"  129;  "Chauny,"  34;  "Reims,"  167. 

6  "Sedan,"  261:  possession  of  ten  years  is  equivalent  to  investiture. 

384 


Topic  6]  OWNERSHIP   OF  IMMOVABLES  —  DELIVERY  [§  309 

public  nam  in  so  far  as  it  applied  to  mortgages.  But  their  pro- 
visions were  only  applied  in  Picardy  and  in  Vermandois  within 
the  jurisdiction  of  the  Parliament  of  Paris;  the  Parliament  of 
Flanders  and  the  Sovereign  Council  of  Artois  refused  to  record 
them.  Public  nam  was  only  really  done  away  with  by  the  Law 
of  September  19-27,  1790,  Art.  3,  and  if  it  was  proscribed,  it  was 
because  of  its  feudal  character.  Moreover,  the  Revolutionary  law 
was  less  radical  in  reality  than  in  appearance;  if  the  idle  formalities 
of  vesting  and  divesting  disappeared  from  localities  where  routine 
had  preserved  them,  the  registering  w^hich  accompanied  them  was 
preserved  under  the  name  of  transcription.^  Deeds  of  conveyanc- 
ing and  mortgage  had  to  be  copied  upon  a  register  at  the  clerk's 
office  of  the  court  of  the  district  in  which  the  property  was  situ- 
ated, under  penalty  of  not  being  valid  against  third  parties  who 
had  contracted  with  the  vendor  and  had  conformed  to  the  law: 
such  was,  at  least,  the  distinction  made  by  the  Law  of  the  11th 
Brumaire  of  the  year  VII  (2,  26). ^  Thus,  public  nam  survived 
under  this  simplified  and  more  modern  form  of  transcription,  and 
the  Law  of  the  11th  Brumaire,  year  VII,  was  able  to  make  of  it 
the  basis  of  our  system  of  mortgages,  for  there  were  met  with 
therein  the  advantages  which  are  especially  sought  for:  facility  of 
proof,  publicity,  and  specialty.  If  the  Civil  Code  retrograded  by 
not  demanding  transcription  for  the  validity  of  the  alienation  of 
immovables,  the  Law  of  March  23,  1855,  revived  the  provisions  of 
the  Revolutionary  law  upon  this  point. 

§  309.    (II)    Public    Investiture    by   Means    of    Proclamation^ 

*  Transcription  means  copy.  The  ordinances  dealing  with  registration 
prescribe  that  all  or  part  of  the  deed  of  gift  should  be  transcribed  on  the 
register.  Cf.  post,  "Gifts." — As  to  transcription,  cf.  "R.  h.  Dr.,"  1855,  97,  471; 
Dramard,  "Bibl.  du  Code  Civil."    Post,  "System  of  Mortgages." 

^  Law  of  the  11th  Brum.,  year  VII,  2,  26:  transcription  in  the  office  where 
mortgages  are  kept.  The  Law  of  Sept.  20,  1790,  made  the  alienation  de- 
pendent upon  the  fact  of  transcription  without  making  any  distinction  be- 
tween third  parties  and  the  parties  themselves.  It  has  been  contended  that 
the  Law  of  the  11th  Brum.,  year  VII,  made  this  distinction  as  a  consequence 
of  a  mistake  made  by  the  reporter,  Crassous  (de  l'H6rault),  upon  the  legisla- 
tion of  the  countries  of  public  nams.  It  is  rather  a  result  of  the  change 
brought  about  by  the  Revolution  in  the  theory  of  public  nams.  The  prin- 
ciples of  the  Feudal  law  led  people  to  say  that  the  ownership  was  not  transferred 
even  "inter  partes"  if  there  were  no  public  nams;  but  in  the  modern  law  we 
have  ceased  to  be  concerned  with  the  rights  of  the  lord  and  only  take  into 
consideration  those  of  third  parties. 

'  "T.  A.  C,  Bret.,"  ed.  Planiol,  c.  39,  40,  44  (com.  of  the  14th  cent.;  cf. 
as  to  the  date,  Brunner,  "Z.  S.  S.,  G.  A.,"  1898,  110);  "A.  C."  (1.539),  267; 
"N.  C."  (1580),  269;  "Comment."  by  D'Argentr6,  Sauvageau,  etc.  —  See 
Guyot;  Couchouren,  "ThSse,"  1888  (bibl.);  Planiol,  "N.  R.  H.,"  1890,  463; 
CMnon,  "L'Ancien  Droit  dans  le  Morbihan,"  1894. 

385 


§  309]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

according  to  the  Custom  of  Brittany.^  —  This  institution,  the  ex- 
istence of  which  is  not  verified  before  the  thirteenth  century,^  is 
connected  with  the  tenure  of  a  year  and  a  day.^  It  serves  to  pro- 
tect the  grantee,  in  the  first  place,  when  there  has  been  a  sale,  and 
aftenvards  when  there  has  been  a  gift,  an  exchange,  or  an  aliena- 
tion of  part  of  a  nobleman's  inheritance  when  he  has  been  put  in 
actual  possession  by  an  owner  who  has  himself  been  in  possession 
during  a  year.'*  Three  "bannies"  or  proclamations  take  place 
when  Mass  is  over,  on  three  consecutive  Sundays,  with  the  ob- 
ject of  letting  the  purchase  become  known  to  the  public.^  In  the 
fourteenth  century  petitions  are  even  addressed,  in  order  to  be 
more  sure,  to  the  relatives  of  the  vendor.^  The  procedure  is 
concluded  by  the  certification  of  the  proclamation,  made  by  the 
tribunal  within  whose  jurisdiction  the  inheritance  which  has  been 
sold  is  to  be  found;  ^  and  this  tribunal  is  not  content  with  giving 
effect  to  the  formalities  which  have  been  accomplished;  it  pro- 
nounces a  real  adjudication  of  title  for  the  benefit  of  the  pur- 
chaser.^ The  Edict  of  August,  1626,  demanded  the  registration 
of  the  contract  before  any  taking  of  possession,  so  as  to  avoid 
alienations  which  were  sudden  and  of  such  a  nature  as  to  escape 
the   knowledge   of  interested  parties  (thus,  in  the  Civil  Code, 

1  Normandy  had,  as  it  were,  an  embryo  of  this  institution.  It  is  not  dealt 
with  in  the  "Summa,"  c.  116,  but  the  "Cout."  of  1583,  Art.  452  et  seq.,  pro- 
vides for  a  reading  of  the  contract  of  sale  after  Mass  is  over  on  three  consecu- 
tive Sundays;  and  these  publications  are  entered  on  the  back  of  the  contract. 
They  merely  constitute  the  beginning  of  the  delay  of  a  year  and  a  day  within 
which  the  repurchase  by  a  person  of  the  same  lineage  may  be  exercised;  if 
these  readings  have  not  taken  place  this  repurchase  may  be  exercised  during 
thirty  years:  Basnage,  on  "Norm.,"  p.  355;  Houard,  "Diet.,"  see  "Clameur." 
Cf.  also  Beaumanoir,  44,  25,  26. 

2  Deeds  of  the  eleventh  and  twelfth  centuries,  —  no  proclamations;  but 
publicity  (witnesses,  sureties,  seals).  In  the  thirteenth  century  the  procla- 
mations are  looked  upon  as  being  an  ancient  custom:  Planiol,  p.  438.  _The 
oldest  deeds  in  which  they  are  mentioned  relate  to  compulsory  sales. 

'  Or,  rather,  with  the  procedure  of  the  "missio  in  bannum."  Post,  "Dis- 
tinction between  Persons  who  are  Present  and  those  who  are  Absent."  The 
necessity  of  a  year's  possession  on  the  part  of  the  grantor  is  only  a  discordant 
element  in  the  Breton  system  of  public  investiture,  a  borrowing  from  the 
theories  of  the  Romanists.  Post,  "Common  Customary  Law."  Cf.  pro- 
cedure of  the  forced  decree  or  adjudication  upon  a  distraint  of  immovables. 

*  No  public  investiture  for  transactions,  judgments  other  than  those  of 
an  adjudication,  nor  for  a  mortgage  which  is  an  accessory  of  claims. 

^  In  the  eighteenth  century  the  proclamations  are  read  and  posted  up. 

'  Cf.  "Repurchase  by  a  Person  of  the  Same  Lineage"  (offer).  Afterwards 
these  petitions  fell  into  disuse,  which  is  to  be  accounted  for  by  the  weakening 
of  the  rights  of  the  family. 

^  "T.  A.  C,"  40.  A  certificate  given  by  the  court  upon  the  record  of  the 
sergeant  who  has  made  the  proclamations.  Cf.  Certification  of  the  public 
announcements  in  case  of  a  compulsory  decree. 

8  Practice  has  a  tendency  in  this  direction:  it  admits  of  the  appeal. 

386 


Topic  6]  OWNERSHIP   OF   IMMOVABLES  —  DELIVERY  [§310 

transcription  precedes  paying  off).    Before  proceeding  to  the  first 
proclamation  it  was  compulsory  to  wait  for  the  expiration  of  six 
months,  dating  from  the  time  of  registering.^    Public  investiture 
had  for  its  effect  the  confirming  of  the  purchase  by  making  it 
almost  invulnerable.^    Interested  parties  who  were  present,  that 
is  to  say,  who  happened  to  be  in  Brittany,  only  had  eight  days 
after  the  last  proclamation  to  offer  opposition ;  this  period  having 
expired,  they  were  foreclosed;  by  reason  of  its  shortness  it  was 
found  necessary  to  prolong  it  until  the  certification  of  the  proc- 
lamations.   As  to  those  who  were  absent^  they  were  only  barred 
by  the  tenure  of  a  year  and  a  day  on  the  part  of  the  purchaser.^ 
The  normal  encumbrances  on  ownership,  such  as  servitudes,  feudal 
rents,  and  ground  rents,  survived  public  investiture;   but  every 
other  right  over  the  immovable  disappeared  as  though  by  the  effect 
of  a  paying  off  :^  thus  the  power  of  repurchasing  by  the  relatives  or 
the  lord,  the  rights  of  mortgage  creditors,  those  of  the  true  owner, 
and  even  those  which  guaranteed  the  payment  of  the  price  to  the 
vendor.    Public  investiture  remained  in  force  until  the  first  of 
Nivose,  year  IV  (December  22,  1795);  the  Decree  of  the  9th  Mes- 
sidor  of  the  year  III,  which  repealed  them,  as  well  as  public  nams 
and  the  "acts  of  law"  (Art.  276),  went  into  effect  that  same  day. 
§  310.    (Ill)  Investiture  and  Giving  of  Public  Notice  at  Metz.^ 
— In  the  old  times  at  Metz,  according  to  the  old  Customs,  the  trans- 
fer of  the  ownership  of  real  property  took  place  by  proclamation 
in  court,  that  is  to  say,  in  the  presence  of  the  court  held  by  the 
aldermen  with  the  assistance  of  the  mayor,  who  alone  had  the 
right  to  pronounce  the  proclamation;  ^  the  grantor  himself  in- 
vested the  purchaser  in  the  presence  of  the  aldermen  and  the  lead- 
ing men.    But  at  the  beginning  of  the  thirteenth  century  it  was  the 

1  People  complained  that  public  investiture  was  degenerating  into  a  de- 
spoiling. 

-  In  a  system  of  property  which  was  as  complex  as  that  oT  the  old  law 
the  public  investiture  must  have  appeared  as  a  real  benefit:  it  avoided  actions 
and  allowed  the  purchaser  to  dispense  with  an  investigation  of  the  rights  of 
his  grantor. 

'  A  thing  which  allowed  of  fraud:  people  who  were  absent  lent  their 
names  to  the  relatives  who  were  present  and  took  back  the  land  for  the 
latter. 

*  The  purchaser  becomes  the  owner,  although  the  seller  may  not  have 
been.  Neither  the  voluntary  decree  nor  the  public  nams  have  such  far-reaching 
effects 

6  P'rost,  "N.  R.  H.,"  1880,  1  and  301;  1878,  " L'Ordonnance  des  Maiours," 
189  and  283;  "R.  de  L6gisl.,"  1876  (Judgment  at  Metz  in  the  thirteenth 
century). 

*  As  to  the  proclamations  in  court  at  the  opening  of  the  term  of  the  latter, 
Prost,  "N.  R.  H.,"  1878,  209.  —  See  post,  Judicial  "  Auflassung." 

387 


§  310]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

mayor,  assisted  by  the  aldermen,  who  performed  the  investiture, 
that  is  to  say,  who  gave  the  purchaser  the  seisin;  this  act  became 
one  of  pubUc  authority,  perhaps  as  a  consequence  of  the  influ- 
ence of  the  Feudal  law.  It  was  not  long  before  they  went  further 
in  this  direction  and  gave  to  public  authority  a  more  important 
place;  during  the  course  of  the  thirteenth  century  *  investiture 
was  supplanted  by  another  procedure,  the  giving  of  public  notice, 
that  is  to  say,  the  solemn  proclamation  of  the  taking  possession 
by  the  purchaser,  which  was  made  by  a  public  officer  under  the 
authority  of  the  mayor.  There  took  place  as  many  as  four  of  these 
public  notices;  the  first  fixed  in  an  authentic  manner  the  begin- 
ning of  the  possession  of  a  year  and  a  day,  which  should  do  away 
with  all  adverse  claims;  the  first  three  public  notices  were  pro- 
claimed within  the  year  at  the  courts  of  Easter,  Christmas,  and 
the  middle  of  August;  at  the  fourth,  that  is  to  say,  at  the  begin- 
ning of  the  following  year,  the  proceeding  was  closed  and  the  right 
was  acquired.^  Up  to  that  time,  at  each  giving  of  notice,  inter- 
ested parties  had  the  right  to  offer  opposition  ("escondit");  they 
were  even  asked  to  do  so,  as  is  shown  by  the  formulae  which  were 
made  use  of:  the  master  alderman  said,  "I  give  public  notice  for 

■ in  copyholds  and  freeholds,"  upon  which  the  mayor  got 

up  and  cried  out  three  times,  "Does  no  one  speak  against  these 
public  notices?  no  one  speaks";  and,  without  doubt,  if  no  one 
raised  any  protest,  the  master  alderman  replied,  "and  it  goes  on." 
These  formalities  accomplished,  the  public  notice  was  cried  through 
the  town.  The  giving  of  public  notice  was  thus  superior  to  simple 
investiture;  it  was  surrounded  with  greater  publicity;  it  cleared 
off  the  rights  of  third  parties  who  had  neglected  to  appear  before 
the  aldermen  to  offer  opposition.  This  accounts  for  the  giving  up 
of  investiture;  this  also  accounts  for  the  extension  which  was  af- 
forded to  the  method  of  public  notice;  it  was  made  use  of  for  every 
change  of  ownerhsip^  "inter  vivos"  or  "causa  mortis,"  ^  by  act 
of  law  or  by  extrajudicial  act.^    In  time  the  municipal  institution 

*  Before  1220  no  giving  of  public  notice;  after  1263  no  more  investiture. 

'  Inscribing  of  the  giving  of  public  notice  upon  rolls  (which  were  kept 
from  1220  until  1546).  —  "Amiens,"  1209,  46  (three  terms  of  court  a  year). 

*  Or  establishing  of  a  real  right.  Investiture  "en  aine  et  en  fond,"  "inani 
et  tranfifundo"  (c/.  "aysina"  meaning  "superpositum,"  "suppellex")  is  the 
granting  of  absolute  ownership;  on  the  contrary,  investiture  in  "gagifire" 
is  carried  out  by  way  of  a  pledge.  In  the  case  of  a  fief  the  lord  alone  conferred 
the  investiture;  it  seems  that  the  giving  of  public  notice  was  possible  without 
his  intervention. 

*  Inheritance  upon  intestacy,  gift,  dower,  partition,  etc. 

^  Judicial  deeds  (which  were  no  doubt  the  beginnings  of  the  procedure): 


Topic  6]  OWNERSHIP   OF   IMMOVABLES  —  DELR'ERY  [§311 

became  modified ;  ^  the  forms  of  the  giving  of  public  notice  were 
simpHfied;  it  fell  into  decline,  and  in  the  sixteenth  century  we 
find  it  scarcely  made  use  of,  excepting  on  the  occasion  of  loans 
upon  immovables,^  until  in  1641  it  disappeared,  to  make  room 
for  the  mortgage  system  of  the  Custom  of  Paris.  If  it  is  easy 
to  understand  that  the  Customary  common  law  replaced  these 
archaic  usages,  their  origin  is,  without  doubt,  in  the  Frankish 
practices  of  the"missio  in  bannum,"  and  one  is  struck  by  their 
analogy  to  certain  institutions  of  countries  of  public  nams,  such 
as  the  seizure  and  delivery  in  fact.^ 

§311.  (IV)  German  Law. — Three  phases  are  to  be  distin- 
guished therein :  (o)  the  practice  of  the  barbarian  period,  which  we 
have  already  described;  (6)  the  system  of  the  judicial  "  Auflassung" 
of  the  thirteenth  and  fourteenth  centuries;  (c)  the  modern  system 
of  land  registers,  which  is  derived  therefrom,  although  it  is  inspired 
by  a  practical  object  which  is  entirely  different.  The  "Auflas- 
sung"  of  the  Middle  Ages  is  especially  designed  to  protect  the  in- 
terests of  the  lord,  of  communities  and  of  families;  it  is  only  as  a 
side  issue  and  in  addition  to  this  that  third  parties  and  the  parties 
themselves  get  any  advantage  out  of  it.  On  the  other  hand,  under 
the  system  of  land  registers,  the  interest  of  third  parties  and  of 
the  parties  themselves  is  alone  taken  into  consideration.  It  was 
possible  for  evolution  to  take  place  in  this  direction  as  soon  as  the 
judicial  assemblies  in  which  the  free  men  only  had  the  right  to 
take  part,  upon  condition  of  being  land  owners,  ceased  to  be  held, 
and  in  proportion  as  plebeian  ownership  gained  strength  at  the 
expense  of  the  seigniorial  ownership,  individual  ownership  at  the 
expense  of  the  rights  of  the  family.  The  Roman  law  contributed 
to  these  changes,  but  at  the  same  time  acted  as  a  disturbing 
force  in  the  progress  of  jurisprudence. 

The  "  Auflassung,"  or  giving  of  seisin  at  law,  is  very  closely  con- 
nected with  the  Frankish  usages;  we  have  already  seen  in  them 

delivery  in  court  (following  a  judgment);  "estault,"  or  distraint  upon  the 
movable  property  (entirety)  of  the  debtor  by  the  creditor  who  is  upheld  by 
the  law;  "conduit,"  or  being  put  in  possession  of  an  inheritance  by  the  author- 
ity of  law  after  the  "huchement"  (proclamation)  of  the  Thirteen  (authority 
of  the  poHce  power);  "exurement"  and  "relevement,"  taking  of  possession 
by  the  creditor  of  the  inheritances  encumbered  with  rents  and  their  taking 
back  by  the  debtor. 

1  In  1552.  After  1641  there  were  no  more  aldermen,  mayors,  or  giving  of 
public  notice. 

2  Prost,  "N.  R.  H.,"  1880,  p.  371.  "Ord.,"  1564:  only  one  giving  of  public 
notice.    Delay  of  two  years  and  one  day. 

*  See  Guyot  ("Main  Assise,"  etc.).    Post,  "Mortgages." 

389 


§  311]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

that  alienations  of  immovables  often  took  place  at  law  "in  mallo," 
in  the  Prankish  practice.  The  "  Sachsenspiegel "  makes  the  inter- 
vention of  law  an  absolute  condition  of  the  transfer  of  prop- 
erty (I,  52,  1:  without  the  consent  of  the  heirs  and  without  the 
"echte  Ding,"  no  one  can  dispose  of  his  possessions  and  his  men). 
This  is  owing  to  the  fact  that  the  majority  of  possessions  are  fiefs 
or  copyholds,  and  that  their  alienation  assumes  a  reversion  to 
the  lord,  —  a  reversion  which  takes  place  in  the  presence  of  the 
feudal  court  or  of  the  plebeian  court  (which  is  the  old  "mallus" 
in  survival).  In  towns  the  jurisdiction  belonged  to  the  municipal 
authorities;  now  the  latter  must  have  some  interest  in  an  act 
which,  like  the  acquisition  of  land,  confers  important  rights  and 
imposes  obligations  (such  as  that  of  contributing  to  the  public 
expenses);  also,  it  is  not  rare  to  find  the  townsmen  of  a  locality 
forbidden  to  dispose  of  their  lands  for  the  benefit  of  anybody  ex- 
cepting one  of  their  fellow  townsmen.^  From  this  it  resulted  that 
in  the  towns  the  "Auflassung"  took  place  before  the  "Stadtrath" 
or  Council  of  the  town.  From  the  "Hofrecht"  ^  and  the  "Stadt- 
rath"  the  necessity  of  the  act  at  law  extended  without  difficulty 
to  the  "Landrecht"  and  the  "Landgerichte."  ^  Moreover,  out- 
side of  motives  due  to  the  feudal  system  and  the  town  laws,  the 
interest  of  the  parties  and  that  of  third  parties  justified  this  ex- 
tension :  facility  of  proof,  publicity  of  the  deed,  guarantees  against 
third  parties,  —  such  were  the  advantages  of  the  system  of  the 
"Auflassung."'* 

The  formalities  of  the  "Auflassung"  are  the  following.  The 
parties,  after  having  come  to  terms  by  means  of  a  preliminary 
agreement  ("Geliibde,"  for  example,  sale)  which  corresponds  to 
the  "justa  causa  traditionis"  of  the  Roman  law,^  proceeded  at 
law  with  the  transfer  of  the  ownership  or  the  "Auflassung";  the 
giving  of  material  possession,  or  the  "  Einweisung,"  completes  the 
act.  The  "Auflassung"  is  nothing  at  bottom  but  the  disseisin- 
seisin  of  the  French  law;  the  word  itself  signifies,  properly  speak- 

»  Heusler,  II,  85;  Huber,  IV,  706.    Id.,  in  France,  cf.  Giraud,  II,  260. 

*  Examples  in  Huber,  IV,  706. 

»  "Schwabensp.,"  I,  38,  40;  Huber,  IV,  706. 

*  The  parties  received  a  writing  attesting  the  conveyance  and  furnished 
with  the  seal  of  the  judge  ("Fertigung");  this  was  the  chief  advantage  con- 
templated first  of  all:  Huber,  IV,  703.  The  judicial  deed  did  not  become 
obligatory  in  Romanic  Switzerland,  whereas  it  was  obligatory  in  German 
Switzerland. 

*  From  this  there  arises  an  obligation  which  can  be  transmitted  to  the  heirs : 
"Sachsensp.,"  1, 9,  §  1  et  seq.;  Brunneck,  "Geach.  d.  Grundeigenth.  i.  Preussen," 
1895. 

390 


Topic  6]  OWXERSHIP   OF   IMMOVABLES  —  DELR'ERY,  [§311 

ing,  disseisin  or  quitting;  but  it  also  serves  to  designate  by  an 
extension  of  the  whole  operation,  the  disseisin  and  the  giving  of 
seisin  which  follows  it.  The  grantor  declares  that  he  abandons  the 
land  for  the  benefit  of  the  grantee;  and  to  this  declaration  there  are 
joined  or  not,  according  to  localities,  the  old  formalities  of  the 
giving  of  the  glove,  the  stick,  the  clod  of  earth,  or  the  making 
of  the  symbolical  gesture  ("curvatis  digitis")-^  Upon  which,  the 
judge  calls  upon  the  participants  three  times  to  plead  their  rights, 
and  in  default  of  any  claims,  declares  that  the  right  has  been 
transferred,  that  is  to  say,  he  ratifies  the  act  and  places  his  peace 
upon  the  property,  or,  in  other  words,  forbids  anyone  from  dis- 
turbing the  grantee.^  A  report  of  the  proceeding  is  drawn  up 
in  the  same  way  as  for  a  judgment  or  municipal  debate,  and 
inscribed  on  the  registers  of  the  court  or  of  the  Council  of  the 
town,  or  even  on  special  registers,  "libri  resignationum,"  which  are 
the  origin  of  the  modern  land  registers  ("Grundbiicher").  The 
inscribing  in  these  registers  constituted  a  proof,  just  as  the  testi- 
mony in  court.  In  certain  localities  this  inscription  came  to  be  the 
most  important  formality  and  the  "Auflassung"  a  secondary  one 
(Bohemia,  thirteenth  century).^ 

The  effects  of  the  judicial  feoffment  in  German  law  are  more 
radical  than  those  of  the  French  public  nams.  The  ownership 
w^hich  was  transmitted  ^  was  not  such  as  the  man  making  the  grant 
had,  but  such  as  the  judge  declared  it  to  be,  so  that  the  situa- 
tion of  the  grantee  might  be  better  than  that  of  his  grantor;  ^ 
in  fact,  he  found  himself  protected  from*  any  attack  by  virtue  of 
the  legal  formalities.  The  most  that  third  parties  had  was  the 
resource  of  acting  within  a  year  and  a  day  before  the  "rechte 
Gewere"  was  required  by  him.^    The  part  played  by  the  tribunal 

1  In  many  localities  giving  of  the  ownership  to  the  judge  by  the  grantor  and 
a  transfer  of  it  by  the  judge  to  the  grantee.  Cf.  Saxony,  "  investitura  allodialis." 

^  Legal  forms,  c/.  Lahand,  "Verm.  Kl.,"  p.  236,  which  does  not  mean  to 
say  that  there  was  a  fictitious  action.  — Brunner,  "Urk.,"  p.  286. 

'  Sometimes  conveyances  and  the  formation  of  real  rights  are  written  one 
after  the  other  in  the  order  of  their  date;  sometimes  a  chapter  is  opened  upon 
each  piece  of  land  so  as  to  include  every  act  of  what  might  be  called  its  civil 
status:  searches  then  become  easier  and  more  certain.  Letters  were  delivered 
to  the  parties  ("Gerichtsbrief,"  "Wehrebrief"),  Stobbe,  §  67. 

*  As  to  possession  ("Gewere")  there  is  a  controversy:  Stobbe,  II,  191. 
Often  a  procedure  was  organized  for  the  "Einweisung":  "Sachsensp.,"  Ill,  83 
("sossia  triduana"). 

'  His  grantor  could  have  been  evicted  by  the  "verus  dominus";  the  assign 
is  not  exposed  to  this  danger.  But  this  consequence  was  not  at  first  recognized 
because  in  the  beginning  the  judicial  deed  was  not  necessary.  Huber,  IV, 
704. 

*  Prescription  may  make  up  for  a  lack  of  "Auflassung." 

391 


§  311]  OWNERSHIP   AND    REAL    RIGHTS  [Chap.  II 

makes  this  consequence  a  reasonable  one;  it  took  an  active  part  in 
the  deed,  summoned  third  parties  to  plead  their  rights,  and,  if  they 
did  not  raise  any  claims  over  the  property,  placed  its  peace  upon 
the  latter.  In  certain  localities  it  even  went  so  far  that  control  of 
the  court  modified  the  contract  itself,  which  served  as  a  foundation 
for  the  alienation  (sale,  gift,  etc.).^  And,  in  order  to  give  more 
publicity  to  the  transaction,  when  justice  was  no  longer  rendered 
by  popular  assemblies,  it  was  sought  to  bring  it  to  the  notice 
of  everybody  by  means  of  public  placards. 

Thus  we  see  that  the  modern  system  of  land  registers,^  and  the 
principle  of  the  "legal  title"  which  gives  the  grantee  so  much 
security,  and  which  places  landed  credit  upon  such  a  firm  basis, 
have  their  origin  in  the  "Auflassung"  of  the  Middle  Ages,  very 
much  as  registration  sprang  out  of  public  nams  in  France.  But  the 
influence  of  Roman  law  disturbed  and  complicated  in  a  singular 
manner  the  German  practice  from  the  sixteenth  century.^  The 
modern  legislator  has  had  to  make  it  over  and  put  some  order  into 
this  chaos,  so  as  to  educe  from  it  the  system  of  mortgages  which 
has  been  proposed  in  our  days  as  a  model  for  other  countries.^ 

§  312.  (V)  The  Common  Law  of  the  French  Customs.^  System 
of  Pretended  Delivery.  —  The  common  law  of  the  Customs  of  the 
sixteenth  century  is  formulated  by  Loysel,  746,  in  the  following 

^  Huber,  IV,  710:  they  even  go  so  far  as  to  make  the  legal  "Fertigung" 
obligatory  for  the  formation  of  a  contract,  in  the  same  way  as  elsewhere  they 
require  the  drawing  up  of  a  notarial  deed.  It  is  only  in  our  century  that  the 
contract  and  the  transfer  of  property  have  been  clearly  separated.  See  also 
the  system  practised  at  Bremen  since  the  thirteenth  century:  Frommhold, 
p.  150;  Challamel,  "Bull,  de  la  Soc.  de  Legisl.  Comp.,"  1878,  p.  482. 

2  Bibl.  on  the  history  of  the  "Grundbiicher":  Brunner,  "Grimdz.,"  p.  176; 
Huher,  IV,  711;  Flammer,  "Dr.  Civil  de  Geneve,"  p.  168;  "Z.  S.  S.,  G.  A.," 
1893,  1;  Aubert,  "Z.  Gesch.  Deutch.  Grundbiicher";  Rehme,  "Gesch.  d.  Miin- 
chen.  Grundb.,"  1903  (in  the  "Festg.  f.  Fitting,"  Halle). 

'  Thus  was  revived  the  double  ownership  of  the  classic  Roman  law,  by 
contrasting  the  "dominum  civile"  or  ownership  inscribed  upon  the  land  regis- 
ter, upon  which  a  reclaiming  could  be  based,  and  which  could  be  lost  only  by 
another  registration,  and  the  "dominum  naturale,"  or  possession  based  upon 
title,  protected  by  the  action  and  a  defense  "rei  venditae  et  traditse."  Cf. 
Prussian  "Landrecht,"  I,  10,  1  et  seq.  In  various  locahties  the  old  formahties 
were  abandoned,  where  they  were  looked  upon  as  a  hindrance  (every  citizen 
has  his  own  chancery,  they  say  in  Zurich,  —  that  is  to  say,  that  he  himseK 
seals  and  authenticates  his  deeds):  Biermann,  "Traditio  Ficta,"  1891.  Post, 
"Common  Law  of  the  Customs." 

*  Besson,  "  Les  Livres  Fonciers  et  la  Reforme  Hypothecaire,"  1891 ;  "  Proc6s- 
verbaux  de  la  Commission  Extraparlem.  du  Cadastre,"  1891  et  seq. 

*  Texts  in  the  "Confer,  de  Guenois,"  pp.  344  and  315;  Ferriere,  on  "Paris," 
82  (bibl.);  Tiraqueau,  "De  Jure  Constituti  Possessorii,"  "Opera,"  1597,  IV; 
Domat,  "Loix  Civ.,"  I,  2,  2;  Pothier,  "Propriete,"  IX,  p.  101,  ed.  Bug.;  Guyot, 
see  "Tradition,"  "Clause  de  Constitut.,"  etc.;  see  Ferriere,  Denisart;  Bourjon, 
I,  pp.  270,  470  (ed.  1770).  Works  on  Arts.  711  and  1138  of  the  Civil  Code,  cf. 
Dramard,  "Bibl.  du  Code  CivU";  "Encicl.  Giur.  Ital.,"  see  "Const.  Poss." 

392 


Topic  6]  OWNERSHIP   OF   IMMOVABLES  —  DELIVERY  [§313 

terms:  "Disseisin  and  seisin  made  in  the  presence  of  notaries  and 
witnesses  are  as  good  as,  and  are  the  equivalent  of,  deHvery  and 
release  of  possession."  ^  In  contracts  which  transfer  immovable 
property  there  is  inserted  a  clause  setting  forth  that  the  formalities 
of  disseisin-seisin  have  taken  place;  the  majority  of  the  time  this 
is  contrary  to  the  truth;  the  notarial  report  is  untrue;  but  none  the 
less  are  these  formalities  held  to  have  been  carried  out.  The  de- 
livery on  paper  has  the  same  effect  as  actual  delivery.^ 

§  313.  The  Same.  —  Origin.^ — Alongside  of  actual  delivery,  we 
already  find  in  the  Roman  laws  cases  of  the  transfer  of  owner- 
ship without  an  actual  giving  of  the  thing  to  the  grantee:  "inter- 
dum  etiam  sine  traditione  nuda  voluntas  domini  sufficit  ad  rem 
transf erendam "  ("Inst."  of  Just., 2, 1,  44).  Let  us  cite,  as  examples 
of  these,  the  delivery  of  the  keys  of  a  warehouse  containing  goods 
sold,  the  delivery  of  documents  for  a  sale  of  slaves,  the  deliv- 
ery "brevi  manu"  when  the  occupant  (for  example,  a  tenant) 
acquires  the  land  which  he  occupies,  the  agreement  in  lieu  of 
delivery  when  the  possessor  becomes  a  holder  "pro  alio,"  for 
example,  by  reserving  the  usufruct  of  the  property  which  he  alien- 
ates, or  by  becoming  the  tenant  of  the  grantee.^  These  proceed- 
ings had,  it  seems,  neither  revolutionized  the  doctrines  nor  the 
practice  which  always  adhered  on  principle  to  material  delivery. 
But  during  the  barbarian  period  delivery  "per  cartam"  may  be 
connected  with  it.  In  cases  where  it  was  hard  to  carry  out  an 
actual  delivery  of  the  land  alienated,  this  delivery  was  dispensed 
with  at  first  by  conveying  with  a  fictitious  reservation  of  the 
usufruct  (for  a  few  days  only);  from  the  sixteenth  century,  in 
Romagna,  the  "retentio  usufructus"  is  considered  as  the  equiva- 
lent of  the  "solemnis  et  corporalis  traditio."  ^  A  little  later  on, 
in  the  eighth  century,  the  fiction  of  the  reserving  of  the  usufruct 
was  abandoned  for  the  giving  of  the  deed  which  established  the 
intent  to  convey;  it  was   customary  to  draw  up  deeds  of  tliis 

1  "Lorris,"  XI,  7;  "Orleans,"  278;  "Meaux,"  3,  13;  "Sens,"  230. 

2  Judicial  sentence,  Masuer,  X,  9  (feigned  delivery  useless);  Landsberg, 
pp.  140,  142. 

'  Brunner,  "Rom.  u.  Germ.  Urk.,"  I;  Landsberg,  "Glossedes  Accursius," 
1883;  Biermann,  "Traditio  Ficta,"  1891;  cf.  Savigny,  "Possession,"  etc. 

*  Dig.,  18,  174  ("clavcs  apud  horrca  traditi");  18,  6,  14,  1  ("trabes 
signatas"),  cf.  1,  2  ("dolium  signatum");  41,  1,  9,  5  (delivery  "brevi  manu"); 
41,  1,  18  "  pr."  (agreement  for  possession,  in  lieu  of  delivery;  18,  1,  75;  19,  1,  21, 
4,  lease;  21,  3,  tenure  at  will);  "Cod.  Just.,"  8,  53,  28  (reservation  of  the  usu- 
fruct); "Cod.  Just.,"  8,  53,  1. 

^  Marini,  "Papiri  Diplom.,"  1805,  no.  86  (in  553);  Spangenberg,  "Juris. 
Rom.  Tabula;  negot.  sollemn.,"  1822,  no.  183,  etc.  On  the  "epistulae  tradi- 
tionis,"  cf.  Biermann,  p.  24. 

393 


§  313]  OWNERSHIP   AND   RE.\L   EIGHTS  [Chap.  II 

nature  from  the  time  of  the  Roman  period;  the  deUvery  was  set 
forth  therein,  but  they  were  merely  means  of  proof;  in  the  eighth 
century  the  giving  of  the  writing  had  the  effects  of  the  "  corporaUs 
traditio."  ^  Already,  before  this  period,  delivery  "per  cartam"^ 
had  been  introduced  into  France,  a  fact  established  both  by 
formulae  and  by  deeds,  and  which  the  Germanic  ideas  no  doubt 
favored  as  to  symbolical  delivery.  The  school  of  the  Glossators 
could  not  fail  to  respect  the  Roman  principle  of  the  necessity 
of  the  actual  delivery,  but  it  understood  the  exceptional  cases 
which  figured  in  the  texts  in  a  broader  way.  Thus  the  Gloss 
holds  that  the  giving  of  the  deed  ^  bearing  the  word  "tradidit" 
and  analogous  terms  has  the  effect  of  transmitting  possession, 
and  Azo  declares  that  "traditione  instrumentorum  acquiritur 
dominium  vel  possessio";^  so,  too,  it  recognizes  unrestrictedly 
the  delivery  ^  by  formal  recital,  and  the  practice  of  the  time  fol- 
lowed it,  as  is  evident  from  the  notarial  formulary  of  Rolandinus 
Passagerius,^  which  was  so  widespread.  With  true  inconsistency, 
or,  rather,  owing  to  a  scrupulous  regard  for  the  text,  the  Gloss 
does  not  recognize  the  "investitura  abusiva,"  or  symbolical  de- 
livery, as  having  the  effect  of  transferring  possession.  The  Post- 
Glossators  gave,  as  it  were,  a  practical  meaning  to  these  doctrines, 

1  We  already  read  in  a  gift  from  Justinian  to  the  Church  of  Ravenna: 
"Corporaliter  per  epistolam  tradi  fecit";  "Z.  S.  S.,  G.  A.,"  142.  Texts  and 
proofs  in  Bierrnann,  p.  28;  Brunner,  "Urk.,"  p.  112. 

*  Brunner,  p.  288.  The  "Interpr."  of  Paul,  1,  12,  6,  does  not  yet  attribute 
to  the  conferring  of  a  title  the  effect  of  transmitting  a  real  right.  But  the  "L. 
Rom.  Cur."  is  to  the  contrary:  Zanetti,  "La  Legge  Romana  Ret.  Coir.,"  1901; 
"Form.  Turon.,"  14,  15;  various  statutes  (804  at  Angers,  etc.);  Bierrnann, 
p.  31;  "Petrus,"  2,  3,  13:  the  grantee  only  becomes  owner  if  he  is  "corporaliter 
inductus  in  possessionem";  but  "pro  traditione  rei  habetur,  quocumque  modo 
res  vendita  remaneat  apud  venditorem  nomine  emtoris,  sive  nomine  depositi, 
sive  commodati;  sive  conductionis  jure;  vel  etiam  si  venditor  usumfructum 
retinuerit."  According  to  this  idea  the  "Petrus"  settles  the  conflict  between 
two  successive  buyers  or  two  donees;  but  in  this  last  case  it  is  only  a  question 
of  the  "investitura  corporalis." 

'  Is  the  deUvery  of  the  "instrumenta  emtionaUa"  understood  to  apply  to 
the  title  deeds  of  the  vendor  or  to  the  deed  of  sale?    Controversy. 

*  Commentary  on  the  words  "tradita  sit"  in  law  2,  "Cod.  Just.,"  7,  32: 
"vel  per  haec  verba  tradidit  vel  per  hoc  confiteor  me  tuo  nomine  possidere,  cum 
constat  me  possidere."    Cf.  law  48,  "D.,"  4,  1. 

'  It  is  probable  that  this  name  is  due  to  Azo,  "Summa,"  on  "Cod.  Just.," 
7,  32;  "illud  quod  meo  nomine  possideo  constituo  me  possidere  nomine  aheno." 
The  word  "constituto"  seems  to  be  borrowed  from  law  17,  §  1,  D.,  41, 
1.  The  Commentators  see  cases  of  agreement  in  lieu  of  delivery  in  the 
reservation  of  the  usufruct,  the  tenure  at  will,  and  the  lease.  The  valid- 
ity of  the  agreement  in  lieu  of  delivery  is  not  dependent  upon  any  special 
form. 

8  Formula  of  sale  (cited  by  Bierrnann,  p.  65).  "Summa  Totius  Artis 
Notariffi,"  ed.  1583;  G.  Durand,  "Specul.,"  1,  IV,  t.  "emt.,"  nos.  30, 
32. 

394 


Topic  6]  OWNERSHIP   OF   IMMOVABLES  —  DELIVERY  [§  313 

without  succeeding  in  establishing  them  on  fairly  secure  theo- 
retical foundations.^  For  them,  feigned  delivery  contrasted  with 
real  delivery,  and  it  has  scarcely  less  importance.  If  they  re- 
fuse to  recognize  the  transferring  of  property  "solo  consensu,"^ 
if  they  do  not  take  into  account  the  frequent  clause  "vendidit  et 
tradidit,"  ^  it  is  in  order  to  give  the  "formal  recital"  of  delivery 
the  widest  extent/  and  in  practice  this  comes  to  the  same  thing: 
they  tell  us  that  there  is,  so  to  speak,  no  act  of  alienation  in  which 
the  clause  of  "  formal  recital "  does  not  figure,  and  several  of 
them  maintain  that,  if  it  has  been  forgotten  to  insert  it,  it  should 
be  implied;  ^  it  is  the  "communis  consuetudo  Italise. "  ^  As  in  the 
case  of  real  delivery,  they  demand  that  the  grantor  should  be  in 
possession  at  the  moment  when  it  takes  place,  without  which  it 
would  be  of  no  effect.^  In  the  case  of  two  successive  deliveries  of 
the  same  land,  the  first  one  pretended  and  the  second  one  real, 
they  say  that  the  first  one  prevails.^  At  the  same  time,  they  did 
not  go  so  far  as  to  give  symbolical  delivery  the  same  effects  as 
had  the  "recital"  in  lieu  of  delivery.  But  the  "usus  modernus 
Pandectarum,"  in  Germany,  did  not  hesitate  to  do  so.  For  the 
authors  who  have  formulated  it,  the  giving  of  possession  is  only  one 
form  of  the  declaration  of  the  will  to  alienate  and  acquire,  which 

1  One  will  find  in  Biermann  a  sketch  of  these  theories,  according  to  which  the 
feigned  deUvery  would  consist  of  an  "actus  corporalis":  "Siete  Part.,"  Ill, 
30. 

*  BaUe,  "Com.  in  Usus  Feud.,"  no.  28;  "Consil.,"  337,  n.  12. 

'  Jason  and  others  state  that  this  clause  "semper  dici  solet  in  instrumen- 
tis";  a  minority  see  therein  a  tacit  agreement  in  lieu  of  delivery:  Biermann, 
p.  80. 

*  Thus  they  not  only  allow  of  the  agreement  in  lieu  of  delivery  which  is  de- 
pendent upon  a  "  causa  detentionis  "  (for  example,  a  reservation  of  the  usufruct) 
but  the  abstract  agreement  in  lieu  of  delivery,  simply  because  the  grantor  de- 
clares: "constituo  me  tuo  nomine  possidere."  Biermann,  p.  107.  Cf.  as  to 
this.  Commentary  on  "tradita  sit." 

'  Biermann,  p.  197. 

8  Cf.  Biermann,  p.  308  (the  agreement  in  lieu  of  delivery  is  very  frequent : 
"apud  Gallos,  Italos,  Germanos,"  they  say  in  the  sixteenth  century).  —  Cf. 
the  Italian  practice:  in  Sicily,  sales  before  the  tribunals  in  the  fourteenth  cen- 
tury; publications  in  the  popular  assemblies  in  the  public  squares.  In  Venice, 
"  judices  ad  contractus,"  public  registers.  In  Floreace,  register  of  transcriptions 
with  immovables  in  the  fourteenth  century.  In  Naples,  a  sort  of  cadastral 
survey.  —  "Acta  tirolensia,"  II,  1899. 

^  Biermann,  p.  112.  Some  justify  this  solution  by  the  notion  that  "nemo 
dat  quod  non  habet":  "Cout.  de  Toulouse,"  93. 

»  Guido  de  Suzaria,  Jean  d' Andre,  cf.  Qui  Pape,  "Q.,"  112,  101,  126.  The 
contrary  opinion  has,  however,  some  partisans,  see  the  notes  on  Gui  Pape. 
The  question  is  asked  with  respect  to  the  interpretation  of  the  law:  "  Quoties," 
15;  "Cod.  Just.,"  "de  Rei  Vind.,"  3,  32.  The  "Cout.  de  Toulouse,"  93,  147, 
148,  also  admits  that  the  vendor  keeps  the  ownership  with  respect  to  third 
parties  so  long  as  the  purchaser  has  not  taken  physical  possession.  Cf.  on 
this  Casaveteri  and  Soulatges;  Serves,  "Inst.,"  2,  1,  44. 

395 


§  313]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

comes  to  the  same  thing  as  saying  that  the  transfer  of  ownership 
results  only  from  agreement.^ 

§  314.  Formation  of  the  French  Practice.  —  The  application  of 
these  doctrines,  in  which  there  was  betrayed  a  marked  tendency 
towards  simplification,  took  place  at  a  very  early  period  in  the 
countries  of  written  law,  where  allodial  holdings  were  very  numer- 
ous; from  the  eleventh  century  deeds  mentioned  the  "vendidit  et 
tradidit";  the  delivery  of  the  deed,  the  delivery  of  the  notary's 
pen,^  are  obviously  connected  with  the  Frankish  period.  Ficti- 
tious agreements  of  tenure  at  will,  of  lease,  of  a  reservation  of  the 
usufruct,  are  also  in  use  as  a  consequence  of  this;  the  grantee  is 
authorized  to  take  possession  when  it  shall  suit  him  and  of  his  own 
authority;  until  that  time  the  grantor  has  possession  in  his  own 
name.^  These  clauses  became  typical  ones  and  were  understood, 
if  need  be,  in  deeds.*  Moreover,  in  the  case  of  fiefs  the  Customs 
of  the  thirteenth  and  fourteenth  centuries  still  clung  to  the  old 
system  of  disseisin-seisin.^ 

In  the  North,  the  general  custom  from  the  fourteenth  cen- 
tury seems  to  have  been  to  recite  in  deeds  the  imaginary  act 
of  formal  disseisin-seisin;  this  clause  became  typicial,  as  did  the 
clauses  of  tenure  at  will  and  reservation  of  the  usufruct,  which 
were  frequently  joined  to  it,^  but,  thus  differing  from  what  had 
taken  place  in  the  South,  it  was  not  presumed  when  it  was  not 
recited.  "He  who  does  not  wish  seisin,  does  not  take  it."  Such  is 
already  the  rule  of  the  "  Grand  Coutumier,"  "^  and  an  exception  is 
only  made  in  the  case  of  fiefs;  investiture  by  the  lord  had  for  a  long 
time  been  looked  upon  as  indispensable  for  this  category  of  pos- 
sessions,^ but  in  the  end  they  were  not  treated  any  differently  from 
copyholds,  and  the  only  difference  which  has  lasted  between  fiefs 
and  copyholds  is  the  necessity  in  the  case  of  the  latter  for  the 

*  See  in  Biermann,  p.  217,  details  on  the  German  law  since  the  time  of 
Carpzov. 

*  Soulatges  on  "Toulouse,"  p.  237. 

»  "Theorie  et  Pratique  des  Notaires,"  1629,  p.  130.  Masuer,  XI,  40:  the 
buyer  or  the  donee  can  only  take  possession  of  his  own  authority  if  the  deed 
specifies  that  there  has  been  delivery.  —  Cf.  G.  Durand,  "Spec,"  IV,  3. 

*  Serres,  "Inst.,"  2,  1,  41.  Cf.  Domat,  "Loix  Civ.,"  1,  2,  2,  5;  Julien, 
"E16m.  de  Jurisp.,"  p.  306;  Astruc,  "Tr.  des  Tutelles,"  1758. 

»  "Toulouse,"  129;  "Agen.,"  38;  "Tonneins,"  161,  etc. 

«  "Paris,"  175,  and  the  "Conf.  des  Ord.  de  Guenois";  Pothier,  IX,  no.  67, 
ed.  Bug.;  Masuer,  XI,  37,  61  (tenure  at  will);  "Meaux,"  3,  13,  etc.  (retaining 
of  usufruct). 

'  "Gr.  Gout.,"  2,  19,  p.  233;  "Gout.  Not.,"  72. 

8  "Gr.  Gout.,"  2,  19,  p.  233;  from  this  passage  it  would  seem  to  follow  that 
nothing  can  take  the  place  of  investiture  by  the  lord,  neither  lease  nor  letters 

396 


Topic  6]  OWNERSHIP   OF  IMMOVABLES  —  DELIVERY  [§  315 

swearing  of  fealty  and  homage;  "true  seisin  of  a  fief  cannot  be  ac- 
quired without  fealty  or  the  consent  of  the  lord"(Loysel,  747).^ 

At  the  same  time,  let  us  notice  that  the  giving  of  seisin  by  the 
lord  has  not  lost  its  entire  usefulness.^  The  year  accorded  for  re- 
purchase by  a  person  of  the  same  lineage  begins  to  run  from  this 
time,  according  to  various  Customs  which  have  remained  faithful 
to  the  old  traditions.  Sometimes  this  formality  was  dispensed 
with  by  admitting  that  "taking  possession  in  fact  equals  seisin" 
(that  is  to  say,  the  giving  of  seisin  by  the  lord).  In  some 
localities,  for  example,  at  Senlis,  in  Valois,  there  is  a  special  kind 
of  giving  of  seisin  in  the  case  of  rents;  their  establishment  is 
written  on  the  public  register;  rents  given  by  means  of  seisin  are 
preferred  to  others. 

§  315.  Conditions  and  Effects  of  Pretended  Delivery.^  —  Pre- 
tended delivery  did  not  transmit  ownership  excepting  under  cer- 
tain conditions;  it  assumes:  (a)  a  notarial  deed;^  this  is  at  least 
a  necessity  in  fact;  ^  (6)  the  clause  of  disseisin-seisin,  or  a  clause 
which  is  its  equivalent;  ®  (c)  a  grantor  in  actual  possession  of  the 
land,  in  such  a  way  that  the  grantee  can  put  himself  into  posses- 
sion.; in  this  way  the  fiction  approached  the  reality;  it  is  only  ac- 
cepted when  it  is  not  too  much  opposed  to  fact.    If  the  grantor 

of  sale,  nor  the  keeping  back  of  the  usufruct;  but  this  is  only  true  as  appHed 
to  fiefs. 

^  Thus  it  was  no  longer  necessary  to  receive  the  seisin  from  the  lord.  More- 
over fealty  and  homage  were  themselves  reduced  to  the  drawing  up  of  a  written 
deed. 

2  An  Order  of  the  Council  of  August  7,  1703,  regulated  the  conferring  of  the 
seisin  of  property  situated  upon  the  land  held  from  the  king.  Pothier  still 
speaks  of  the  giving  of  seisin  and  the  right  of  seisin  to  which  it  gave  rise, 
independently  of  the  lord's  due  and  sales.  As  to  prices,  cf.  KSrallain,  "Th.," 
p.  142.  —  The  formahties  of  the  giving  of  seisin  were  only  completely  abro- 
gated by  virtue  of  the  Law  of  Dec.  5-17,  1790. 

3  Charondas,  "R^p.,"  II,  62;  Ricard,  "Don.,"  I,  901;  Argou,  "Inst.,"  Ill,  23. 

*  Necessity  for  a  notarial  deed  for  every  contract  relating  to  immovables 
according  to  the  Statutes  of  Vaud.,  I,  6,  4;  Huber,  IV,  709;  Loysel,  746. 

^  Pasquier,  "Inst.,"  p.  256.  The  notarial  deed  assures  to  the  vendor  a 
claim  over  the  thing  sold  as  security  for  the  payment  of  the  price.  Sale  by  deed 
under  private  seal  or  a  verbal  sale  would  not  give  him  this;  it  would  be  diffi- 
cult to  prove,  especially  a  verbal  sale,  since  the  Ordinance  of  Moulins.  Fur- 
thermore, the  mortgage  creditors  under  a  public  deed  would  be  preferred  to 
grantees  by  deed  under  private  seal.  Soulatges  on  the  "Cout.  de  Toulouse," 
p.  238,  assuming  a  conflict  between  two  purchasers,  —  one  by  public  deed, 
the  other  by  private  deed,  —  gives  the  former  precedence  unless  the  latter 
has  been  put  in  actual  possession.  —  The  public  deed  is  absolutely  necessary 
in  the  case  of  a  gift. 

*  Clause  of  the  agreement  in  lieu  of  delivery  by  which  the  vendor  who  keeps 
the  property  declares  that  he  appoints  himself  possessor  for  and  in  the  name 
of  the  owner.  Clause  of  tenure  at  will,  by  means  of  which  he  declares  that  he 
only  possesses  at  will,  subject  to  the  pleasure  of  the  owner.  Retaining  of  the 
usufruct. 

397 


§  315]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

who  declares  that  he  disseises  himself  is  not  in  possession,  the  facts 
contradict  the  recitals  of  the  deed,  and  it  is  only  these  facts 
which  are  taken  into  account.^  So  that,  if  the  owner  of  a  piece  of 
land  had  made  a  real  delivery  of  it  to  a  first  grantee,  the  latter 
would  be  preferred  to  a  later  grantee  who  had  obtained  the  pre- 
tended delivery  of  the  land.^  There  was  discussion  as  to  the  op- 
posite case:  did  a  pretended  delivery  prevail  over  a  real  delivery 
which  was  later  in  date?  Pothier  believed  so,  but  Ferriere,  Guyot, 
and  Henrys  maintain  that  the  real  delivery  should  have  preference 
over  the  other;  according  to  these  authors,  because  of  the  clauses 
by  which  the  seller  reserves  the  usufruct  and  others,  the  own- 
ership is  not  transferred  as  against  third  parties.^  The  same 
difficulties  were  presented  in  case  there  was  a  conflict  between  a 
grantee  and  a  creditor  of  the  seller  who  had  a  mortgage  or  levied 
a  distraint  upon  the  land  sold.  If  the  vendor,^  or,  in  a  more 
general  way,  the  grantor,  was  the  owner,  the  grantee  became  the 
owner;  but,  on  the  other  hand,  he  had  no  more  rights  than  had  his 
grantor  (differing  in  this  from  what  took  place  in  the  other  systems 
of  transfer,  where  the  buyer  could  become  the  owner  without  the 
vendor's  having  been  so).  Secret  alienation  could  not  virtually 
create  a  new  title  for  the  grantee;  he  steps  into  the  place  of  his 
grantor;  the  most  that  he  has  is  the  advantage  of  the  usucaption 
of  from  ten  to  twenty  years. 

§  316.  Estimate  of  the  System  of  Pretended  Delivery.  —  The 
practice  which  we  have  just  described  constituted  an  absolute 
rupture  with  the  old  law  and  its  system  of  symbolical  deliveries 
surrounded  by  publicity  and  hampered  by  the  rights  of  the  lord 
and  those  of  the  family.    This  practice  corresponds  to  that  phase 

*  As  to  the  rule,  "to  give  and  to  withhold  is  invalid,"  cf.  post,  "Gifts"; 
Argou,  "Inst.,"  I,  292:  delivery  is  necessary  that  the  gift  may  be  valid;  but 
outside  of  the  countries  of  public  nams  a  pretended  delivery  carried  out  by 
means  of  the  retention  of  the  usufruct  and  the  clauses  of  the  agreement  in  lieu 
of  delivery  and  the  tenure  at  will  are  deemed  sufficient :  "Paris,"  275;  Louet,  I, 
V,  s.  1;  La  Thaumassi^re,  on  "Berry,"  VII,  1;  Denisart,  see  "Clause";  Masuer, 
XI,  36. 

*  "A.  C,  Bourg.,"  62,  in  Giraud,  II,  279. 

*  Pothier,  "Vente,"  no.  322;  Guyot,  Ferrihre,  see  "Tradition";  Soulatges, 
op.  cit.,  p.  238;  Henrys,  "CEuvres,"  IV,  5th  ed.,  p.  528  (sale,  no.  20).  Cf.  P.  de 
Fontaines,  17.  18;  "Petrus,"  2,  3,  13;  Gluck,  "Pandect.,"  XVII,  215. 

*  Let  us  observe  that  in  the  case  of  a  sale  it  is  required,  in  order  that  the 
ownership  may  be  transferred,  that  the  price  shall  have  been  paid  in  conform- 
ity with  §  41,  "Inst.  Just.,"  "de  t6v.  div.":  Pothier,  no.  242.  Rousseaud  de  La- 
combe,  see  "Prdcaire":  the  purchaser  declares  that  he  holds  by  virtue  of  a 
tenure  at  will  until  the  entire  payment  of  the  price:  the  only  result  in  favor  of 
the  vendor  is  a  security  upon  the  land:  D'Olive.,  "Quest.  Not.,"  4,  9;  2,  17; 
Despeisses,  1,  6,  19;  Landsberg,  p.  114. 

398 


Topic  6]  OWNERSHIP   OF   IMMOVABLES  —  DELIVERY  [§  316 

of  the  history  of  real  property  in  which  the  rights  of  the  lord  and 
the  family  were  becoming  weakened;  as  against  persons  of  the 
same  lineage,  the  right  of  the  individual  stands  out;  as  against  the 
lord,  the  inheritability  of  fiefs  and  copyholds.  The  formalities  of 
symbolical  deliveries  thenceforth  fell  into  disuse,  for  they  served 
especially  to  enforce  rights  which  had  disappeared;  there  only  re- 
mained of  them  their  mention  in  notarial  deeds.^  Actual  delivery 
had  already  been  thrust  into  the  background  by  those  usages;  it 
was  left  there  excepting  for  the  Romanists,  who  in  memory  of  the 
past  gave  it  a  Platonic  worship :  it  was  understood  jn  the  South  as 
vesting  and  divesting  was  in  the  North.  Thus,  as  far  as  the  larger 
part  of  France  was  concerned,  a  uniform  system  of  feigned  de- 
livery was  arrived  at;  and  from  this  issued  the  simpler  rule  of  the 
Civil  Code  that  ownership  is  transferred  by  consent  alone.^ 

The  theorists  of  natural  law  had  already  formulated  this  rule; 
it  is  found  in  Grotius,  and  his  opinion,  which  is  accepted  by  Puf- 
fendorf,  did  not  pass  unobserved  by  the  civil  jurists,  because 
Pothier  mentions  it.^  It  is  true  that  the  civilians  avoid  saying  that 
ownership  is  transferred  by  consent  alone;  this  would  be  a  direct 
attack  on  the  venerated  texts  and  an  open  break  with  tradition; 
they  preferred  to  connect  their  explanations  with  the  clauses  which 
were  in  use  in  notarial  deeds.  From  the  sixteenth  century  certain 
Customs  speak  of  clauses  transferring  ownership.^  A  little  later  on, 
Loysel,  alongside  of  customs  wherein  the  past  still  finds  expression, 
recognizes  the  new  law:  "One  has  no  sooner  sold  a  thing  than  he 
has  nothing  left";  if  there  could  be  any  doubts  as  to  the  meaning 
and  the  bearing  of  this  rule,  his  commentator,  Lauriere,  under- 
took to  dissipate  them:  "Thus,"  says  he,  "among  us,  as  soon  as 
the  sale  is  perfected,  the  dominion  over  the  thing  sold  is  trans- 
ferred without  delivery,  contrary  to  the  provision  of  Law  20,  *de 
Pactis.'"  Domat  implies  the  clause  of  "tenure  at  will"  in  sale 
and  arrives  at  the  same  result.    Ricard  complains  that  delivery 

*  Vain  protestations  of  Dumoulin,  on  "Paris,"  I,  20,  5,  16:  "neque  vera 
neque  ficta  traditio." 

*  Almost  the  only  innovation  of  the  Civil  Code  consisted  in  doing  away  with 
the  inserting  in  deeds  of  a  clause  which  had  become  popular  and  in  no  longer 
demanding  the  drawing  up  of  a  notarial  deed:  Hericourt,  "  Ventes  par  Decret," 
186,  352;  Endemann,  op.  cit.,  II,  83. 

3  Grotius,  "De  J.  Belli,"  2,  8,  25;  2,  12,  15;  Puffendorf,  "Dr.  de  la  Nature," 
2,  9,  8;  Pothier,  "Propr.,"  no.  245.  —  Already  the  Commentary  on  I,  23,  "Cod. 
Just.,"  1,  2,  and  on  the  "Inst.,"  2,  1,  45,  admits  that  the  Church  and  the 
"civitas"  acquire  ownership  as  a  result  of  the  agreement  without  any  delivery: 
Covarruvias,  "Resol.,"  II,  19,  3,  and  others  hold  the  same  thing  with  respect 
to  the  .sovereign :  Landsberg,  p.  140,  12. 

*  "Sens,"  250. 

399 


§  316]  OWNERSHIP  AND   REAL   RIGHTS  [Chap.  II 

no  longer  serves  to  swell  the  number  of  the  clauses  in  contracts. 
The  Romanists,  and  among  others  Pothier,  are  the  only  ones 
to  resist  the  general  impulse;  and,  again,  this  is  only  as  far  as 
form  is  concerned.^ 

The  system  of  our  old  jurisprudence  has  been  variously  esti- 
mated. It  seems  that,  having  to  choose  between  two  systems,  the 
one  secret  and  full  of  inconveniences,  and  the  other  consisting  in 
publicity  and  offering  the  greatest  possible  advantages,  it  rather 
blindly  pronounced  itself  in  favor  of  the  worse.  But  those  who 
look  upon  these  things  from  this  point  of  view  mistakenly  carry 
into  the  past  ideas  which  may  be  all  right  for  our  own  times.  The 
most  serious  reproach  charged  to  the  system  of  feigned  delivery  is 
that  it  leaves  ownership  uncertain:  the  third-party  grantee  and 
the  mortgage  creditor  are  never  sure  that  they  are  negotiating 
with  the  owner  of  the  property  which  one  of  them  is  buying  and 
upon  which  the  other  takes  a  mortgage,  because  a  secret  alienation 
can  at  any  moment  cause  the  ownership  to  pass  from  one  person  to 
another.  But  this  inconvenience  existed  more  in  theory  than  in 
practice.  Generally,  the  grantee  of  the  piece  of  land  was  a  neigh- 
bor; it  was  hard  to  take  him  unawares.  And,  when  there  was  a 
risk  of  this  happening,  the  intervention  of  the  notaries  prevented 
it  nine  times  out  of  ten,  for  the  notary,  who  had  to  be  resorted  to 
for  conveyances  as  well  as  for  the  creating  of  mortgages,  was  well 
aware  of  the  rights  of  the  parties;  he  could  only  act  knowingly, 
under  penalty  of  involving  his  own  responsibility.  Thus  there 
were  in  customs  and  usages  palliatives  which  rendered  the  sys- 
tem adopted  by  the  French  Customary  law  tolerable.  Otherwise 
it  could  not  be  explained  why  the  Civil  Code  came  back  to  it  in  an 
exaggerated  form  when  it  was  contemplating  the  system  of  public- 
ity borrowed  by  the  Revolution  from  the  "public  nam"  Customs.^ 

Nor  must  we  forget  that  royal  legislation  had  itself  attempted 
to  react  against  the  secret  transfer  of  real  rights.  Thus,  the  Or- 
dinance of  Villers-Cotterets,  1539,  Art.  132,  prescribed,  under 
penalty  of  nullity,  the  entering  or  registering  of  gifts  at  the  clerk's 
office  in  the  royal  jurisdiction.^    (C/.  Ord.  1566-1731.) 

1  Damat,  "Loix  Civ.,"  1,  2,  2,  5;  Ricard,  "Don.,"  no.  902;  Ferriere,  see 
"Constitut.";  Pothier,  nos.  186,  245:  Serres,  "Inst.,"  p.  130. 

2  This  is  not  the  best  thing  done  oy  the  Civil  Code;  but  it  would  be  ridicu- 
lous to  think  that  its  framers  have,  from  mere  caprice  or  from  hatred  of  Revo- 
lutionary institutions,  resuscitated  a  system  absolutely  condemned  by  long 
experience.  —  Cf.  Flammer,  "Dr.  Civil  de  Geneve,"  p.  169. 

^  Ordinance  of  Villers-Cotterets,  Aug.,  1539,  Art.  132;  Ordinance  of  Moulins, 
Arts.  57,  58;  Ordinance  of  1731,  on  gifts. 

400 


Topic  6]  OWNERSHIP   OF   IMMOVABLES  —  DELIVERY  [§317 

By  this  means  it  was  suggested  that  they  be  made  pubHc,  so  as 
to  avoid  every  kind  of  fraud  and  to  protect  third  parties,  whoever 
they  might  be,  who  might  be  injured  by  them,  even  creditors  by 
simple  contract,  legatees,  and  heirs.  When  the  Law  of  the  11th 
Brumaire,  year  VII,  established  transcription,  gifts  of  immov- 
ables were  found  to  be  subject  to  the  double  formality  of  registry 
and  transcription.  It  is  thus  also  that  the  Edict  of  J\Iay  3,  1553, 
decided  that  neither  ownership  nor  rights  in  land  could  be  acquired 
without  registration  of  the  sale  and  of  the  deed  relating  to  it;  but 
this  edict  was  not  carried  out.  The  Edict  of  December,  1703, 
which  was  commonly  called  the  "Edict  of  Lay  Registrations,"^ 
and  the  Edict  of  October,  1705,  ordered  the  registration,  not  only 
of  gifts,  but  of  every  contract  and  deed  which  the  public  is  inter- 
ested in  knowing  about,  and  especially  of  deeds  transferring  owner- 
ship. All  these  deeds  could  not  be  served,  could  not  be  produced  in 
court  or  made  use  of  to  draw  up  other  deeds,  and,  as  a  general  rule, 
could  not  be  established  in  public  usage,  excepting  upon  condition 
of  being  registered;  unless  they  were  registered,  they  had  abso- 
lutely no  effect  "in  law  or  otherwise."^  We  shall  see  further 
on  that  measures  were  also  taken,  but  without  success,  for  the 
publishing  of  mortgages. 

§317.  (VI)  English  Law. — Leaving  aside  the  Anglo-Saxon 
period,  about  which  little  is  known,^  it  is  easy  to  prove  that  in 

1  Guyot,  see  "Controle,"  "Insinuation."  As  to  control  see  Edicts  of  1581, 
1693,  1699;  Isambert,  see  Table,  Restricted  publicity;  cf.  Edict  of  1581,  Art. 
8,  and  Law  of  22  Frim.,  year  VII,  Art.  58.    Fiscal  object  of  the  edicts. 

2  Guyot,  "Insinuation";  Ferriere,  "Sc.  des  Notaires,  in  F." 

'  A  remarkable  characteristic  of  the  Anglo-Saxon  law  is  the  distinction 
between  "Bocland"  and  "Folcland":  Schmid,  "Ges.  d.  Angels.,"  see  "Gloss." 
By  "bocland"  is  understood  a  land  granted  "per  cartam"  (from  whence  its 
name,  "boc,"  "liber,"  "carta",  and  "land,"  or  the  Latin  equivalents,  "terra 
codicillaria,"  "testamentaria");  thus  it  is  that  in  the  ninth  and  tenth  centuries 
the  king,  with  the  consent  of  his  "witan,"  grants  domains. to  churches,  to 
monasteries,  and  sometimes  to  the  laity,  by  conferring  upon  them  very  ex- 
tensive rights,  —  the  full  ownership  (from  whence  is  derived  the  translation 
"  allodium  "  which  we  sometimes  find).  This  would  have  been  individual  owner- 
ship as  opposed  to  collective  ownership  represented  by  the  "folcland"  (land 
of  the  people,  "ager  publicus").  But  this  meaning  of  "folcland"  (generally 
received  from  the  time  of  J.  Allen,  1830)  is  rejected  to-day;  Vinogradoff  ("Eng. 
Hist.  Rev.,"  Jan.,  1893)  restoring  to  honor  an  explanation  by  Spebnan  ("Gloss. 
Archaiol.,"  1689)  has  shown  that  the  "folcland"  was  the  land  possessed  by 
virtue  of  popular  law,  of  the  Custom,  without  a  written  title.  All  land,  on 
principle,  comes  within  this  category,  "bocland"  being  only  an  exception,  an 
institution  of  foreign  origin  introduced  in  the  int(!rest  of  the  Church.  The 
"  folcland  "  may  belong  to  the  king  or  to  ordinary  individuals,  may  be  an  object 
of  individual  or  collective  ownership;  but  everything  leads  us  to  believe  that 
common  lands  were  very  numerous  at  this  period.  As  to  alienation,  cf.  Pollock, 
"Land  Laws,"  199;  Maitland,  "Domesday  Book,"  p.  226  et  seq.;  Brunner, 
"Rechtsg.  d.  Rom.  u.  Germ.  Urk.,"  1880. 

401 


§  317]  OWNERSHIP   AND   REAL  RIGHTS  [Chap.  II 

England  evolution  took  place  towards  simplification,  as  it  did  in 
the  common  law  of  the  French  Customs/  towards  the  security  of 
the  grantee  as  in  countries  of  public  nams.  But  the  system  of 
landed  property  is  so  complex  there  that  the  question  of  the  con- 
veyance of  immovables  shows  the  effects  of  it;  it  was  solved  in 
various  ways,  according  to  the  nature  of  possessions  and  the  char- 
acter of  the  rights  transferred.  Perhaps  it  would  be  a  good  thing 
to  remember  now  that  there  is  no  allodial  ownership  in  England. 
All  land  is  held  mediately  or  immediately  from  the  crown.  Also, 
Williams  was  able  to  say,  "  The  first  thing  which  a  student  in  law 
should  do  is  to  disabuse  himself  of  the  idea  of  an  absolute  owner- 
ship; no  one,  according  to  our  law,  is  the  absolute  owner  of  land; 
he  can  only  have  over  it  an  estate."  And  Lord  Sherbrooke,  sub- 
stituting a  modern  formula  for  that  of  the  Feudal  law,  affirms  that 
"  the  land  is  a  kind  of  property  in  which  the  public  has,  by  reason  of 
its  very  nature,  in  common  with  the  owner,  a  kind  of  interest  which 
slumbers."  ^  Without  wishing  to  find  out  whether  "the  awaken- 
ing of  the  one  jointly  interested"  is  not  likely  to  give  rise  to  crises 
of  a  formidable  seriousness  in  the  future,  let  us  note  that  in  the 
past  this  kind  of  ownership,  combined  with  entails,  with  various 
incumbrances,  with  rights  of  reversion  (remainder,  reversion)  ^  has 
offered  a  thousand  difficulties  to  transactions  with  relation  to 
immovables. 

§  318.  (I)  Freehold  or  frank  tenement,  which  is  a  tenure  simi- 
lar to  the  French  fief.  —  (A)  Feoffment  icith  Livery  of  Seisin  (in- 
feudation  with  putting  in  possession,  "feoff amentum,"  "traditio 
saisinse").  In  the  strictness  of  the  law,  the  granting  (''dare  et 
concedere,"  give  and  grant)  of  an  inheritable  right,  or  a  right  for 
life,  a  frank  tenement  requires  as  an  absolute  necessity  the  ac- 
tual putting  in  possession  of  the  grantee.    It  takes  place  in  fact  or 

1  Pollock,  "Land  Laws,"  p.  73:  they  passed  from  a  simple  but  annoying 
publicity  to  the  most  absolute  secrecy  with  regard  to  transactions  in  immova- 
bles, without  the  legislator  having  done  anything  to  bring  this  about,  and  even, 
to  tell  the  truth,  contrary  to  his  will. 

2  "Ann.  de  Leg.  Etr.,"  1887,  p.  43. 

'  Statutes  "DeDonis  Conditionalibus,"  1285;  "Quia  Emptores,"  1290;  of 
Mortnaain  (c/.  the  Mortmain  Act  of  1890,  1892).  The  first  of  these  statutes 
contributed  especially  towards  complicating  the  system  of  the  ownership  of 
land  in  allowing  of  the  creation  of,  or  rather,  in  the  developing  of,  the  fee 
tail  ("feodum  talliatum,"  that  is  to  say,  limited).  Its  inconveniences  were 
infinite,  says  Coke;  if  all  the  estates  had  been  in  fee  simple,  purchasers  would 
have  been  sure  of  their  purchases,  farm  tenants  of  their  leases,  and  creditors 
of  their  claims;  the  king  and  the  lords  would  have  had  their  escheats,  for- 
feitures and  other  seigniorial  rights.  The  "forma  doni"  caused  trouble  and 
confusion  ever>-Tvhere  by  substituting  for  simple  rules  the  entanglement  of 
individual  caprices. 

402 


Topic  6]  OWNERSHIP   OF   EVIMOVABLES  —  DELrV'ERY  [§319 

at  law.^  (a)  In  fact,  when  the  parties  are  on  the  premises;  the  lord 
who  is  making  the  grant  places  in  the  hands  of  the  grantee  the 
hammer  or  the  knocker  of  the  door  ("tradere  per  ostiam,  per  has- 
pan  vel  annulum"),  where  a  house  is  concerned;  a  rod  or  a  glove 
("per  fustem,"  "baculum,"  etc.),  where  a  piece  of  land  is  con- 
cerned.^ (6)  In  law,  when  the  land  is  in  sight;  the  lord  shows  the 
immovable  to  the  tenant  and  asks  him  to  take  possession  of  it 
("tradere  per  aspectum")  and  the  latter  takes  advantage  of  this 
invitation.^  In  the  thirteenth  century,  at  least,  it  was  customary 
without  being  a  legal  necessity  (excepting  since  1845)  to  establish 
the  transaction  by  a  sealed  writing  (deed  equals  "factum")  and  the 
symbol  and  the  writing  are  given  at  one  and  the  same  time.^  But 
ownership  is  not  transferred,  says  Bracton,  either  by  homage,  or 
by  the  drawing  up  of  a  writing,  or  by  a  fictitious  delivery;  nothing 
can  take  the  place  of  actual  delivery.^  It  is  difficult  to  account 
for  the  strictness  of  this  exigency  at  a  time  when  symbolical  de- 
livery was  so  widespread  on  the  continent,  and  wlien  its  effica- 
ciousness was  not  at  all  doubtful.  Here  we  have  a  phenomenon 
of  regression  towards  the  materialism  of  the  primitive  law,  the 
cause  of  which  must  perhaps  be  sought  in  the  Anglo-Saxon  customs 
or  in  a  return  to  barbarism  following  the  Norman  Conquest.  It 
even  found  a  support  in  the  doctrines  of  the  Glossators,  in  whose 
opinion  material  delivery  was  necessary  on  principle.  Whatever 
the  reason  may  be,  these  ceremonies  often  rendered  impossible 
the  transfer  of  ownership  (absence,  illness,  etc.). 

§  319.  The  Same.  —  (B)  Lease  and  Release  (lease  and  relinquish- 
ment, "laxare  et  relaxare").^  This  is  the  "brevi  manu"  transfer 
of  the  Roman  law.  At  the  same  time  that  it  adhered  strictly  to 
the  necessity  of  an  actual  handing  over,  the  English  practice  ad- 
mitted, from  the  thirteenth  century,  probably  under  the  influence 

^  In  deed  and  in  law  (Coke). 

2  Bracton,  f.  40;  Britton,  II,  9  ("C."  40,  ed.  Houard);  Littleton,  70.  There 
would  take  place,  be  it  understood,  a  previous  disseisin  from  the  lord,  if  it 
were  a  matter  of  a  fief  which  had  already  been  established. 

3  Bracton,  f.  41.  Cf.  Azo,  "Inst.,"  2,  1,  40;  "Summa  in  Cod.,"  p.  436; 
Glanville,  VII,  1. 

*  Littleton,  370.  It  is  not  rare  for  the  deed  to  be  drawn  up  in  triple  indenture; 
one  is  given  to  a  third  party,  —  for  example,  to  the  lord  paramount. 

^  Cf.  Littleton,  66.  For  example,  the  heirs  of  the  grantor  would  not  be  bound. 
—  The  "traditio  saisinae"  was  not  required  for  the  inferior  tenures  (for  a 
term  or  at  will),  that  is  to  say,  for  those  which  were  not  free  (for  life  or  inhe- 
ritable). The  mere  delivery  of  the  deed  of  grant  v/as  sufficient  to  transfer  in- 
corporeal things  (rights  of  patronage,  of  reversion,  rents,  etc.).  Post,  "Uses" 
(deed  of  grant). 

*  Bracton,  f.  41,  45;  Littleton,  444  et  seq.  Another  expression:  "reddere  et 
quietum  clamare." 

403 


§  319]  OTVNERSHIP   AND    REAL   RIGHTS  [Chap,  II 

of  the  Romanists,  that  there  were  cases  in  which  "  sine  traditione 
transit  dominium."  Thus,  when  a  freeholder  has  leased  his  land 
so  as  to  put  it  into  occupation  by  the  tenant,  he  is  free  to  grant 
him  his  own  rights  by  a  second  deed;  "ipso  facto,"  without 
there  being  any  need  of  the  formalities  of  the  livery  of  seisin,  the 
tenant  becomes  the  owner.  But  this  is  a  solution  which  can  only 
take  place  under  exceptional  circumstances.  It  is  an  accident  in 
the  law  of  this  period,  for  the  release  does  not  satisfy  either  the 
materialistic  tendencies  of  the  common  law  or  the  exigencies  of  the 
Feudal  law;  it  still  has  the  fault  of  being  secret,  the  transfer  (grant, 
remit,  release)  only  being  made  known  by  a  sealed  deed  which  was 
given  to  the  grantee.  The  release  no  more  protected  the  grantee 
from  the  claims  of  third  parties  than  did  the  livery  of  seisin.  The 
publicity  of  conveyances  and  the  security  of  grantees  were  only 
obtained  by  the  judicial  methods  with  which  we  are  about  to  deal.^ 
§  320.  The  Same.  —  (C)  Fine,  or  recognizance  at  law.^  Fol- 
lowing a  fictitious  action  between  the  grantor  and  the  grantee,^  a 
lawsuit  in  which  the  latter  pretended  that  he  had  been  dispos- 
sessed by  the  former,^  the  defendant  petitioned  for  a  settlement;  the 

1  Attornment  (that  is  to  say,  acknowledgment,  recognizance).  If  the 
vassal  or  the  copyholder  can  substitute  a  third  party  for  himself  by  granting  to 
the  latter  his  fiei  or  his  copyhold,  the  lord  is  authorized  on  his  part  to  grant  his 
seigniorial  rights  and  thus  to  subrogate  a  third  person  in  the  exercise  of  his 
rights.  The  man  in  possession  of  a  manor  ordinarily  holds  one  part  of  it  as 
his  domain,  and  another  part  he  lets  out  for  services  and  it  is  held  by  his  vassals 
or  tenants.  When  he  wishes  to  alienate  this  manor  it  is  necessary  that  all  his 
vassals  or  tenants  should  give  their  expressed  consent  by  saying  to  the  new 
grantor  at  the  time  the  grant  is  carried  out,  "  I  attorn  to  you,"  etc.,  and  giving 
him  a  "pfenning";  their  tacit  consent,  by  carrying  out  for  his  benefit  those 
services  which  they  owed.  As  we  can  see,  attornment  is  the  opposite  of  the 
vassal's  obligation  of  obtaining  the  consent  of  the  lord  when  the  former  alien- 
ates his  fief;  and  both  of  these  matters  are  to  be  accounted  for  by  the  personal 
character  of  the  feudal  relations.  Under  Edward  III  the  vassal  was  recog- 
nized as  having  a  right  to  alienate  his  fief  without  the  authority  of  the  lord, 
upon  condition  of  a  fine  paid  to  the  king,  and,  owing  to  the  reciprocity  which 
was  no  more  than  just,  the  consent  of  the  tenants  could  be  supplemented  by  a 
writ  from  the  king.  Attornment  also  served  for  the  transfer  of  rents  for 
which  the  consent  of  the  tenant  was  at  first  necessary ;  in  the  end  it  was  deemed 
sufficient  if  he  were  notified  of  the  grant:  Littleton,  551;  Britton,  41;  Glasson, 
IV,  241.  Same  system  in  Brittany :  /^agrt^eaw,  see  "Attoumances."  Cf.Collinet, 
"N.  R.  H.."  1895,  647. 

2  "Finalis  concordia  quia  imponit  finem  litibus";  Glanville,  8;  Statutes  "de 
modo  levandi  fines"  (date?  character?),  "de  finis  levatis"  (Edward  I),  etc. 
(in  "Statutes  of  the  Realm");  Littleton,  441;  Coke,  "Inst.,"  II,  bll;  Black  stone, 
II,  21,  and  Appendix  no.  IV;  Pollock  and  Maitland,  II,  94.  It  is  said  that  a 
"finis"  is  levied.  On  this  expression,  c/.  Du  Cange,  see  "Finis,  Finem,  levare"; 
Brunner,  "Vrk.,"  p.  28Q. 

'  In  order  to  begin  the  action  one  had  to  pay  a  due  or  fine  to  the  king, 
and  one  paid  him  another  fine  for  his  authority  to  compromise. 

*  Because  the  former  did  not  carry  out  the  agreement  which  had  been  entered 
into  between  them. 

404 


■  Topic  6]  OWNERSHIP   OF   IMM0VA:5LES  —  DELIVERY  [§  320 

court  gave  the  parties  permission  to  come  to  an  understanding, 
and  the  deed  of  compromise  by  which  the  defendant  acknowledged 
the  right  of  ownership  of  the  grantee  was  pubhcly  read  before  the 
judges  (or  before  commissioners)  whose  duty  it  was  to  ascertain 
the  capacity  and  the  freedom  of  the  parties,^  A  deed  of  the  whole 
proceeding  was  drafted,  and  this,  at  least  since  1195,  in  three  in- 
dented copies,  one  of  which,  called  "pes  finis,"  was  preserved  in 
the  royal  treasury,  and  one  of  the  others  given  to  each  of  the 
parties.^  This  procedure  had  the  same  advantages  which  a  judg- 
ment in  real  litigation  has:  1st,  easy  proof  of  the  deed,  the  pres- 
ervation of  the  "pes  finis"  in  the  treasury  being  a  first-class 
guarantee  against  loss  or  falsification  of  titles;  2d,  assured  execu- 
tion; 3d,  and  especially,  the  cutting  off  of  all  claims  which  were  not 
brought  forward  at  once,  or,  at  the  very  latest,  within  a  year  and 
a  day :  ^  "  non  in  regno  Anglise  providetur  vel  est  aliqua  securitas 
major  vel  solemnior  per  quam  aliquis  statum  certiorem  habere 
possit  quam  .  .  .  finem  in  curia  domini  regis  levatum."  Nor 
by  itself  does  it  transfer  the  seisin,  any  more  than  a  judgment 
does;  if  the  grantee  wishes  it  to  be  equivalent  for  him,  to  the 
feoffment  with  livery  of  seisin,  he  will  have  to  put  himself  in  pos- 
session of  the  land  in  whatever  way  he  can,  good  or  bad.  The 
consequences  of  the  fine,  which  were  very  far  reaching,  took  place 
all  too  soon ;  the  Statute  of  Edward  III  (fourteenth  century)  gave 
third  parties  the  right  to  assail  it  at  any  time;  the  remedy  was 
radical,  but  it  had  the  fault  of  taking  away  from  this  institution  its 

1  Necessity  of  possession  on  the  part  of  the  grantor;  without  which  any  two 
people  might  have  been  able  to  deprive  the  owner  of  a  piece  of  land  by  bringing 
a  pretended  action  for  this  land.  The  same  remark  appUes  to  common  re- 
coveries. 

*  The  "finis"  was  first  of  all  proved  by  the  court  record,  later  by  written 
deeds.  The  drawing  up  of  three  copies,  one  of  which  was  kept  in  the  treasury, 
dates  from  1195;  in  the  name  given  to  this  latter  copy  there  is  a  pun  on  the 
French  "pes"  (peace,  transaction)  and  the  Latin  "pes"  (foot),  just  as  there 
is  one  in  "fine,"  which  can  be  connected  with  the  Latin  "finis"  and  the  French 
"  finer  "  (finance)[to  pay  a  fine  or  due  (fine  means  a  pecuniary  penalty,  a  transfer 
tax).    Examples  of  fines  from  1182  to  1272,  Pollock  ayid  Maitland,  \,  18. 

'  This  is  the  most  remarkable  effect  of  the  "finis " :  an  alienation  thus  carried 
out,  says  the  Statute  "Modus  Levandi  Fines,"  not  only  binds  the  parties  and 
their  heirs,  but  all  the  world.  This  is  to  be  accounted  for  because  of  its  very 
origin.  This  method  of  acquiring  assumed  first  of  all  a  real  process  for  reclaim- 
ing begun  before  the  local  court;  now,  the  frank-tenement  holders  were  obliged 
to  take  part  in  these  trials;  there  was  nothing  wTong  in  declaring  that  they 
were  stripped  of  all  rights  so  long  as  they  did  not  protest  agaimst  the  sentence 
which  was  pronounced ;  if  they  were  present  they  did  wrong  not  to  take  part 
in  the  judicial  assembly.  —  Among  other  consequences  of  this  result  let  us 
notice  the  extinction  of  trusts;  the  trustee  who  alienated  property  held  in  trust 
by  making  use  of  the  fine  (or  the  common  recovery)  brought  the  trust  to  an 
end. 

405 


§  320]  OWNERSHIP   AOT)   REAL   RIGHTS  [Chap.  II 

chief  usefulness;  few  men  were  assured  of  their  possessions.  Also, 
under  Henry  VII  (end  of  the  fifteenth  century),  Parhament,  tak- 
ing a  middle  course  between  these  two  solutions,  permitted  claims 
to  be  made  up  to  five  years  dating  from  the  public  reading  of  the 
fine;  the  rights  of  minors,  of  married  women,  of  the  insane  and  of 
those  who  were  absent,  were  preserved. 

§  321.  The  Same.  —  (D)  The  Common  Recovery,^  which  is  of 
more  recent  date  than  the  levying  of  the  fine,  rests  like  the  latter 
on  a  fictitious  action.  According  to  the  common  law,  the  mon- 
asteries and  other  establishments  in  mortmain  could  not  receive 
any  lands  without  the  authority  of  the  king,  under  penalty  of 
having  them  confiscated.  But  this  rule  was  evaded.  The  holder 
sold  his  land  to  the  monastery  and  at  once  took  it  back  by  an- 
other transfer  as  coming  from  this  monastery;  as  the  latter  had 
not  had  the  seisin,  the  confiscation  was  found  to  be  avoided,  and 
in  one  way  or  another,  for  example,  by  way  of  expiration,  the 
monastery  then  took  the  property.  The  Great  Charter  of  Henry 
III,  c.  36,  forbade  these  frauds.  But  it  only  mentioned  sales. 
The  religious  houses,  instead  of  buying  lands,  leased  them  for  a 
thousand  years,  and  still  escaped  the  confiscation,  at  the  same 
time  attaining  their  object.  The  Statute  "De  Religiosis,"  under 
Edward  I,  even  forbade  long-term  leases.  The  monks  did  not 
acknowledge  themselves  as  beaten;  they  then  brought  a  suit  to 
recover,  on  a  fictitious  claim  against  the  owner,  who  allowed  judg- 
ment to  go  against  him.  By  the  second  Statute  of  Westminster  it 
was  decided  that  every  action  of  recovery  brought  by  a  religious 
community  should  be  subject  to  an  inquest  carried  out  by  a  jury, 
so  as  to  annul  it  in  case  of  fraud.  Under  Edward  IV  (end  of  the 
fifteenth  century)  procedure  became  more  complicated :  "  the  pos- 
sessor who  was  sued  in  an  action  of  recovery  would  vouch,  by 
way  of  defence,  a  third  party  whom  he  pretended  to  be  his 
warrantor;  the  latter  defaulted;  the  judge  gave  judgment  for  the 
default  of  the  warrantee  against  the  warrantor;  but  at  the  same 
time  he  gave  judgment  against  the  warrantee  for  the  benefit  of 
the  demandant.  By  means  of  this  procedure,  the  heirs  were  more 
surely  shut  out;  they  had  no  right  to  complain,  because  their 
ancestor,  at  the  same  time  as  he  lost  the  immovable,  had  a  right 
to  its  equivalent  from  his  warrantor."    There  was  some  hesitation 

*  Procedure  so  called  because  one  is  considered  as  recovering  one's  property 
and  because  it  is  commonly  made  use  of.  Abolition  of  fines  and  recoveries, 
3  and  4,  William  IV,  c.  74. 

406 


Topic  6]  OWNERSHIP   OF   IMMOVABLES  —  DELIVERY  [§  322 

felt  about  absolutely  stripping  them,  but  there  was  no  hesitation 
about  choosing  as  one's  warrantor  an  insolvent,  a  man  of  straw, 
and  this  role  finally  devolved  upon  the  crier  of  the  court  of 
justice,  who  was  called  in  exercising  this  function  the  common 
warrantor  (common  vouchee,  "vocatus").  "From  this  period 
on  (1472?),  conveyances  in  the  form  of  recoveries  became  more 
and  more  frequent,  and  they  ended  by  being  openly  admitted" 
for  the  benefit  of  ordinary  individuals.  Their  great  advantage 
consisted  in  defeating  entails  and  rights  of  reversion  which 
rendered  ownership  uncertain;  and  such  was  sometimes  the 
entanglement  of  incumbrances  and  rights  of  reversion  that  indi- 
viduals, despairing  of  knowing  the  condition  of  their  property, 
found  themselves  reduced  to  the  extremity  of  petitioning  Parlia- 
ment to  give  them  a  new  title  clearing  off  all  previous  rights.^ 

§  322.  (II)  Copyholds  (tenure  by  copy  of  court  roll).^  This 
sort  of  property  began  by  being  a  servile  tenure;  also,  the  tenant 
whom  the  lord  could  expel  at  his  will  (tenant  at  will)  had  no  power 
to  convey  his  right.  But,  if  the  lord  was  always  the  official 
owner  of  the  copyhold,  the  situation  of  the  copyholder  did  not 
cease  to  gain  strength;  it  has  ended  by  differing  very  little  at 
bottom  from  that  of  the  freeholders.  It  is  thus  that  towards  the 
end  of  the  fifteenth  century  they  acquired  the  right  of  alienating 
their  tenure  in  spite  of  the  lord.^  Then  copyholds  became  like  the 
French  copyholds  ("censives").  Their  complete  emancipation 
only  dates  from  yesterday  (1894).  The  forms  of  alienation  of 
copyholds  always  felt  the  influence  of  their  origin.  This  act  takes 
place  by  means  of  surrender  and  admittance,  which  is  about  the 
same  thing  as  the  vesting  and  divesting  of  the  French  law.  (1)  The 
tenant  reconveys  (surrenders)  the  property  of  the  lord,  ordinarily 
in  his  court,  by  giving  him  a  stick,  a  glove,  an  ear  of  wheat,  etc. 
(2)  The  lord  admits  (admittance)  the  grantee  in  his  stead  and  place 
by  the  same  proceeding.  The  deed  is  inscribed  on  the  register  of 
the  manor  in  which  the  land  is  situated,  and  a  copy  of  this  is  de- 
livered to  the  grantee,  whose  title  it  constitutes.  This  method  of 
alienation  expressed  the  dependence  of  the  copyhold  with  regard 
to  the  manor  too  well  for  its  abandonment,  or  even  its  simplifi- 
cation, to  be  thought  of. 

1  Blackstone,  II,  21  (French  trans.,  Ill,  217). 

2  Littleton,  78  et  seq.;  Blackstone,  II,  22;  Pollock  and  Maitland,  I,  337; 
Pollock,  "Land  Laws,"  p.  208. 

*  Cf.  the  clause  of  "free  sale"  claimed  by  the  tenants  in  Ireland,  and  which 
belongs  to  those  of  Ulster:  P.  Fournier,  "La  Quest.  Agraire  en  Irlande,"  1882. 

407 


§  323]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

§  323.  (Ill)  Formation  of  Uses.  —  The  complicated  mechanism 
which  we  have  just  been  outhning  was  all  the  more  difficult  to  put 
in  motion  as  in  many  cases  the  owner  had  his  hands  tied.  This 
system  of  impediments  did  not  have  the  result  which  was  expected 
of  it ;  it  only  stimulated  the  ingenuity  of  practitioners  and  led  them 
to  invent  the  boldest  expedients  in  order  to  avoid  their  applica- 
tion. If  they  pretended  to  respect  it  in  theory,  the  practice  of 
uses  resulted  in  often  reducing  it  to  the  condition  of  a  dead  letter, 
and  in  establishing  alongside  the  ownership  of  the  common  law 
(the  "  legal  estate  "),  an  enjoyment,  or  rather,  a  sort  of  equitable 
ownership,  with  which  many  could  be  content  and  which  escaped 
all  the  rules  of  the  strict  law.  Such,  to  a  certain  extent,  at  Rome, 
was  the  Praetorian  ownership,  or  the  ownership  of  provincial 
lands. 

This  institution  was  originally  only  a  pious  fraud,^  one  of  the 
proceedings  employed  by  the  clergy  to  evade  the  nullity  which 
grants  in  mortmain  were  affected  with.  Instead  of  granting  his 
lands  to  a  monastery,  the  owner  transferred  the  ownership  to  a 
third  party  for  the  use  of  a  monastery;  the  enjoyment  which  re- 
sulted to  the  profit  of  the  latter  was  not  recognized  by  the  com- 
mon law,  but  the  "cestui  que  use"  could  have  it  protected  by 
the  court  of  equity.  Its  situation  has  been  compared  to  that  of 
the  Roman  "fidei-commissus."  The  person  interposed  was  the 
owner  at  law;  in  equity  he  must  fulfill  all  the  obligations  which 
had  been  imposed  upon  him.  This  expedient,  which  appeared 
under  Edward  III,  was  forbidden  under  Richard  II,  but  only  as 
far  as  it  related  to  people  in  mortmain.  Ordinary  individuals 
had  had  the  time  to  accommodate  it  to  their  interests;  and 
they  preserved  it. 

The  use,  being  a  creation  of  equity  unknown  to  the  Feudal  law, 
it  was  admitted  that  it  could  be  constituted  "solo  consensu," 
without  the  giving  of  seisin,  in  a  secret  manner,  and  could  be 
proved  by  any  means.  Neither  confiscation  nor  expiration  were 
to  be  feared,  because  the  use  was  not  held  from  any  lord.  One 
has  no  difficulty  in  seeing  what  an  advantage  this  right  presented 
because  of  the  facility  of  transactions,  over  the  institutions  of  the 
common  law.  In  return,  it  was  reproached,  and  Bacon  was  the 
first  to  do  it,  with  ousting  many  people  from  their  rights,  —  the 
woman  from  her  dower,  the  husband  from  his  right  of  courtesy, 
the  creditor  from  his  right  of  distraining,  the  tenant  from  his  es- 
^  Fear  and  fraud,  says  Coke,  were  the  true  inventors  of  the  use. 

408 


Topic  6]  OWNERSHIP   OF   IMMOVABLES  —  DELIVERY  [§  323 

tate.  The  creditors  of  the  "cestui  que  use"  had  to  be  allowed  to 
attack  his  enjoyment.  Alienations  with  the  reservation  of  the  use 
were  forbidden,  because  the  grantor  preserved  the  possession  of 
the  property  and  too  easily  enjoyed  an  imaginary  credit  (from  the 
time  of  Edward  III).  Bacon  complained  that  one  could  not 
know  who  was  the  true  owner  of  land,  the  person  interposed 
(trustee)  or  "  cestui  que  use."  And  the  fact  is  that  neither  one 
nor  the  other  could  alienate  separately,  which  was  a  source  of  em- 
barrassment and  frauds.  Various  statutes  tended,  by  solving  the 
questions  of  detail,  to  recognize  that  "cestui  que  use"  was  the  real 
owner.  The  matter  was  finally  regulated  by  the  Statute  of  Uses  of 
Henry  VIII,  1535;  this  act  was  inspired  by  a  thought  hostile  to 
uses  and  the  facility  of  alienating  which  their  establishment  had 
introduced  into  the  body  of  English  law;  yet  it  only  strengthened 
the  established  practice.  It  converted  the  use  into  possession; 
this  was  to  create  of  it  an  ownership  no  longer  in  equity  but  at 
law,  and  to  give  jurisdiction  to  the  judges  of  the  common  law. 
But,  as  they  showed  themselves  not  very  favorable  to  uses,  the 
courts  of  equity  profited  thereby  to  take  back  a  part  of  the  ground 
which  they  had  lost;  they  intervened  when  there  was  any  attempt 
to  restrain  the  effects  of  the  use  and  compelled  the  fiduciary  to 
carry  out  everything  wliich  he  was  held  bound  to  in  conscience. 
By  the  intervention  of  a  trustee  or  fiduciary  (from  trust,  confi- 
dence, deposit)  the  ownership  was  transferred  without  formality. 
The  sale  itself  had  for  its  effect  to  make  the  buyer  the  owner  by 
the  fact  alone  that  there  was  an  agreement  of  the  wills  of  the 
parties,  "bargain  and  sale";  for  the  vendor  became  the  trustee  of 
the  buyer  and  was  in  possession  for  the  benefit  of  the  buyer,  in  the 
same  way  as  in  the  formal  recital  of  delivery  of  the  Roman  law. 
So,  to,  the  transfer  "brevi  manu,"  under  the  form  of  lease  and 
release,  was  applied  in  a  normal  manner  as  a  regular  proceeding, 
so  much  was  it  in  harmony  with  the  institution  of  the  use  (this, 
however,  was  not  done  without  discussion  until  the  year  1620). 
Of  all  the  obstacles  placed  in  the  way  of  alienation  by  the  common 
law,  nothing  remained,  —  no  more  in  reality  than  in  form.  The 
new  system,  which  was  infinitely  more  flexible  than  that  which  it 
replaced,  had,  to  counterbalance  this  fact,  a  very  serious  defect:  the 
changing  of  ownership  was  private,  so  that  the  true  owner  often 
remained  unknown  and  loans  upon  land  as  a  security  rested  only 
on  false  appearances.  Such  inconveniences  were  too  serious  not 
to  lead  speedily  to  some  thought  of  remedying  them.     Under 

409 


§  323]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

Henry  VIII  it  was  sought  to  give  some  publicity  to  alienation, 
especially  the  form  of  simple  bargain  and  sale,  by  providing  that 
conveyances  should  be  registered  with  a  court  of  justice  or  the 
Keeper  of  the  Rolls,  The  laws  of  1704  and  1735  even  required 
registry  for  all  deeds  "inter  vivos"  or  "mortis  causa"  which 
transferred  ownership  or  created  real  rights;  but  they  were  only 
applied  in  the  counties  of  York  and  Middlesex.  Nowhere  else  did 
this  publicity  exist.  In  our  own  day,  another  step  was  taken  along 
the  path  of  simplifying,  and  the  Law  of  October  1,  1845,  brought 
to  a  close  the  long  evolution,  the  various  phases  of  which  we 
have  described,  by  enacting  that  the  execution  and  delivery  of  a 
deed  under  a  private  seal  should  thenceforth  operate  as  a  trans- 
fer of  corporeal  property  just  as  efficaciously  as  actual  delivery 
of  the  land  (like  the  deed  of  grant  already  in  use  for  incorporeal 
property).  But  at  the  same  time  there  took  place  a  reaction  in 
the  direction  of  the  publicity  of  the  transfer  of  ownership;  if  they 
did  not  dare  break  with  the  tradition  of  centuries,  yet  at  last 
there  was  instituted  a  system  of  registration  (1863-1875).  It 
resembles  the  enrolling  upon  land  books  of  the  German  law,  with 
this  peculiarity,  which  conforms  well  to  the  English  spirit,  that 
registering  is  optional  and  not  compulsory.^ 

1  Cf.  "Ann.  de  L^gisl.  Etr.,"  1889,  p.  212.  On  the  Torrens  Act  of  1858,  see 
Ch.  Gide,  "Bull,  de  la  Soc.  de  Legisl.  Compar^e,"  1885,  XV,  388;  Besson, 
' '  Li vres  Fonciers, "  1891. 


410 


Topic  7] 


RIGHTS   IN   L-^ND 


[§324 


Topic  7.    Rights  in  Land  .\nd  ENcmiBR.^jsrcES  upon  Landed 

Property 


324.  Multiplicity  of  Rights  in  Land; 

Their  Relations  to  Feudal- 
ism and  Serfdom. 

325.  Leases  for  a  Long  and  a  Short 

Term. 

326.  Free  Urban  Tenure. 

327.  Rents  and  Charges,  or  Burdens 

on  Real  Property. 

328.  Rights  of  Profits. 


§  329.  Usufruct. 

§  330.  Right  of  the  Beneficiary  over 
an  Ecclesiastical  Benefice. 

§331.  Real  Servitudes. 

§  332.  The  Same.  —  (I)  Natural  Servi- 
tudes. 

§  333.  The  Same.  —  (II)  Servitudes 
established  by  the  act  of  man. 


§  324.  Multiplicity  of  Rights  in  Land;  Their  Relations  to  Feu- 
dalism and  Serfdom.  — •  The  system  of  land  ownership  was  for- 
merly complicated  by  a  great  number  of  rights  in  land  and  burdens 
upon  landed  property.^  Some  of  them  were  like  a  cutting  down  of 
the  beneficial  ownership  which  belonged  to  the  copyholder  (leases 
for  a  long  and  a  short  term);  others  were  more  analogous  to  the 
domanial  rights  (rents) ;  certain  of  them  presented  themselves  as 
a  survival  or  an  imitation  of  collective  ownership  (rights  to  use 
the  woods  belonging  to  a  community,  or  woods  belonging  to  the 
lord) ;  some  of  them,  those  most  nearly  approaching  the  modern 
usufruct,  were  related  to  the  formation  of  the  family  (dower); 
many  of  them  were  merely  predial  servitudes;  finally,  the  pledge 
and  the  mortgage  served  as  a  protection  for  credit.^  This  con- 
fusion of  rights  upon  the  same  piece  of  land  gave  rise  to  difficulties 
and  litigation;  it  also  had  many  inconveniences  in  economic  order; 

^  Cf.  the  "Reallasten"  of  the  German  law,  which  differ  very  little  from  our 
charges  upon  land,  and  the  nature  of  which  has  been  widely  discussed.  The 
English  law  is  a  masterpiece  of  construction,  with  its  learned  hierarchy  of 
estates  and  its  theory  of  uses.  Thus,  outside  of  hereditary  estates,  whether 
in  fee  simple  or  substituted  fee  (fee  tail)  over  free  tenements  (freeholds)  we 
find:  (A)  estates  which  are  not  inheritable:  (a)  "pur  autre  vie,"  during  the 
life  of  a  third  party  who  is  called  "  cestuy  que  vie"  (if  the  tenant  died  before 
"  cestuy  que  vie"  the  first  comer  could  take  possession  of  the  property  just  as 
though  it  had  been  without  an  owner,  unless  the  grant  had  been  made  expressly 
to  the  grantee  and  his  heirs) ;  (6)  for  life,  either  by  virtue  of  the  law  (dower, 
curtesy  of  England)  or  by  agreement  or  will  (settlement) ;  (B)  inferior  estates: 
(a)  for  a  term  (long-term  leases,  leases  from  year  to  year);  (6)  at  will;  (c)  by 
mere  tolerance.  Let  us  superimpose  uses,  and  let  us  place  alongside  of  thera 
the  copyholds,  and  we  shall  succeed  in  understanding  that  the  English  jurists 
based  everything  upon  the  idea  that  no  one  can  have  an  absolute  right  of 
ownership  over  an  immovable.  As  to  the  term  of  years,  cf.  Pollock  and  Mait- 
land,  II,  105. 

2  Cf.  "Summa  Norm.,"  93,  7:  disseisin  of  lands,  pastures,  revenues  ("red- 
ditus"),  "faisances"  (charges  paid  by  farm  tenants)  and  services. 

411 


§  324]  OWNERSHIP   AND    REAL    RIGHTS  [Chap.  II 

for  this  small-change  of  ownership  was  far  from  possessing  the  vir- 
tues of  the  latter.  Modern  legislation,  taking  this  experience  into 
account,  has  reduced  as  far  as  possible  the  number  of  real  rights, 
following  the  example  of  the  Roman  law  in  this.  It  has  changed 
the  nature  of  many  of  them  in  order  to  make  them  come  within  the 
category  of  personal  rights  or  credits;  by  this  means  it  has  freed 
the  owner  from  encumbrances,  and  it  has  made  his  freedom  to  act 
more  absolute,  while  at  the  same  time  it  has  given  rather  a  wide 
range  to  the  individual's  will  and  particular  interests  in  the  uphold- 
ing of  obligations.  In  our  day  ownership  tends  unceasingly  to 
come  back  to  what  is  looked  upon  as  its  normal  state,  that  is  to 
say,  to  the  reuniting  in  the  same  hand  of  all  its  attributes,  "usus," 
"fructus,"  "abusus,"  with  their  very  fullest  effects.  On  the  con- 
trary, the  normal  condition  of  ownership  in  the  old  law  was  the 
splitting  up  of  this  sheaf  and  the  subdivision  of  the  parcels  which 
had  been  drawn  from  it,  without  making  any  attempt  to  give 
them  the  cohesion  which  seems  so  natural  to  us.  To-day,  no  man 
thinks  himself  an  owner  unless  he  can  do  everything  he  pleases 
with  the  thing  owned;  in  the  olden  times  one  was  far  more  easily 
satisfied;  the  master  was  only  half  a  master. 

The  multiplicity  of  real  rights  made  them  prejudicial;  their 
character  rendered  them  odious;  feudalism  and  servitude  had  put 
their  stamp  upon  many  of  them,  or,  at  least,  they  were  scarcely 
to  be  distinguished  from  feudal  rights;  they  carried  with  them,  as 
did  the  latter,  the  servitude  of  the  person  or  the  property,  the 
superiority  of  a  man  or  a  piece  of  land;  they  were  surrounded  with 
the  same  proscription. 

§  325.  Leases  for  a  Long  and  aShortTerm.^ — Reasons  of  apoliti- 
cal and  economic  nature  made  the  old  law  the  epoch  of  perpet- 
ual or  long-term  leases,^  and  in  this  method  of  cultivating  the 
soil  the  holder  is  in  a  position  bordering  on  that  of  an  owner. 
The  short-term  lease  itself,  which  was  not  often  met  with  till 
much  later,  produced  sometimes,  when  it  was  introduced  into  prac- 
tice, analogous  results;  the  temporary  tenant  was  treated  in  cer- 
tain Customs  like  a  perpetual  tenant.  Under  the  influence  of  the 
Roman  law,  the  ordinary  lease  ceased  to  confer  a  real  right  and 
degenerated  to  the  rank  of  a  simple  personal  relation;  by  an  op- 
posite phenomenon,  due  to  reasons  already  set  forth,  those  who 

1  "B.  Ch.,"  VI,  2,  409;  SalvioU,  p.  422  (bibl.). 

2  "Bailler"  means  to  deliver,  to  give  up  to  (still  this  wide  meaning  in  cer- 
tain Romanic  dialects).  "Amodiation"  means  a  letting  of  immovables,  farm 
rent  being  paid  "ad  modium,"  in  "muids,"  in  produce. 

412 


Topic  7]  RIGHTS  IN  LAND  [§  325 

held  by  means  of  inheritance  saw  their  right,  protected  and 
strengthened,  raise  itself  little  by  little  until  it  attained  the  rank 
of  true  ownership.    Thus  a  return  was  made  to  the  Roman  ideas. 

The  conflict  between  these  ideas  and  the  conception  of  the 
Customs  was  expressed  by  means  of  two  contradictory  rules: 
"Selling  carries  with  it  letting"^  and  "Buying  does  not  annul 
letting."  2  This  last  rule  meant  that,  if  the  land  under  lease 
was  sold,  the  right  of  the  lessee  could  be  opposed  to  the  buyer, 
because  it  was  a  real  right;  thus  the  lease  was  not  annulled.  Ac- 
cording to  the  first  rule,  on  the  other  hand,  as  the  holder  has  only 
a  personal  right  against  the  lessor,  the  buyer,  who  has  become 
the  owner  of  the  land  leased,  has  the  power  of  expelling  him;  the 
lease  is  annulled.  This  was  the  Roman  solution,  and  that  of  the 
court  practice  of  countries  of  written  law.^  Its  great  defect  was 
that  it  rendered  the  duration  of  leases  uncertain.  The  practice 
of  the  Customs  eliminated  it  by  special  clauses  in  the  contract 
of  sale;  by  virtue  of  these  clauses  the  buyer  undertook  to  up- 
hold the  lease;  the  Civil  Code,  in  Art.  1743,  merely  enacted  that 
these  clauses,  which  had  become  typical,  should  be  implied. 

Among  the  number  of  leases  which  are  to  be  distinguished  from 
feudal  tenures  (lease  of  a  fief,  lease  of  a  copyhold)  ■*  are  to  be  ob- 
served the  long-term  lease,  the  lease  for  cash,  which  is  only  a  vari- 
ation of  the  former,^  and  the  lease  for  possession  at  will,  which  is 
peculiar  to  Brittany,  and  which  is  perhaps  of  servile  origin.  — 
Long-Term  Leases  ^  only  carried  with  them  a  transfer  of  the 
beneficial  ownership  when  they  were  perpetual;  ^  where  they  were 

^  Loysel,  472;  "Cod.  Just.,"  loc,  9:  "Emtorem  necesse  non  est  stare  colono 
(nisi  ea  lege  emit)."     German  law:  "Kauf  bricht  Miethe."     Chaisemartin, 

E.  274;  Huber,  IV,  859,  3  (Neufchatel,  Switzerland):  "death,  marriage  and  sale 
reak  every  leasing";  Loysel  {contra  this);  "Ass.  de  J6rus.,"  ed.  B.,  II,  291; 
Pothier,  "Louage,"  no.  296;  "Gr.  Gout.,"  p.  248. 

2  Chaisemartin,  p.  273:  "Kauf  hebt  Miethe  nicht  auf."  We  do  not  know 
any  formula  in  French  which  corresponds  to  this  adage;  the  one  which  we 
give  in  the  text  is  only  a  translation. 

»  Sevres,  "Inst.,"  Ill,  25,  6. 

*  "Z.  S.  S.,  G.  A.,"  V,  69;  Huber,  IV,  756  et  seq. 

B  Viollet,  p.  660,  n.  2  ("Gout,  de  Poitou,"  1417);  Bruel,  "Chartes  de 
Cluny,"  II,  328  (in  968);  Marchegay,  "Gart.  du  Bas-Poitou,"  p.  249;  H.  de 
Pansey,  "Comp(5t.  de  Juges  de  Paix,"  1827,  p.  375;  Masson,  "Expose  de  la 
L6gislat.  rurale,"  1879,  p.  25;  Alaus,  "Theses  Ec.  Ghartres,"  1885,  p.  8; 
Grand,  ibid.,  1899;  Lamprecht,  p.  196. 

8  Viollet,  p.  660  (bibl.);  Anselminus  de  Orto,  "Emphyt.,"  ed.  Jacobi,  1854. 
Cf.  Monograph  in  "Tract.  Univ.  Juris,"  treatises  cited  by  Salvioli,  p.  424; 
Lattes,  "Studi  sop.  enfiteusi,"  1868;  Stobbe,  §  99;  Giravd,  II,  219,  256. 

^  In  Italy  the  long-term  lease  seems  rather  to  be  perpetual,  the  "livello" 
("libcllus")  or  the  tenure  at  will  temporary.  But  there  is  nothing  very  clear 
in  the  terminology.    Cf.  Fertile,  §  142  (detailed  study  of  the  "livello").    The 

413 


§  325]  OWNERSHIP   AND    REAL   RIGHTS  [Cuap.  II 

made  for  many  years,  fifty,  ninety-nine  years,  one  or  several  lives, 
they  only  conferred  a  real  right,  which  was,  however,  very  much 
like  the  beneficial  ownership,  because  it  carried  with  it,  as  did  the 
latter,  the  power  to  change  the  ultimate  disposition  of  the  land, 
and  it  gave  rise  to  preferences,  to  the  lord's  due  and  sales,  and  to 
confiscation.^  The  Law  of  December  18,  1790,  reduced  the  dura- 
tion of  the  long-term  lease  to  ninety-nine  years  maximum;  and 
the  laws  of  the  9th  IMessidor,  year  III,  and  the  11th  Brumaire, 
year  VII,  classified  the  right  of  the  holder  of  a  long-term  lease  with 
that  of  the  usufructuary  among  property  capable  of  being  mort- 
gaged. It  has  been  questioned  whether,  under  the  rule  of  the  Civil 
Code,  the  long-term  lease  was  recognized  by  the  law  together  with 
its  special  results,  more  especially  the  creation  of  a  real  right,  or 
whether  it  was  not  confused  with  the  ordinary  lease.  —  The  lease 
for  possession  at  will  ^  had  two  peculiar  characteristics.  1st.  It 
could  be  revoked  at  the  will  of  the  lessor,  like  leases  at  will,  which 
were  so  common  in  English  law;  the  analogy  with  copyholds,  the 
holder  of  which  can  be  freed  at  the  w411  of  the  lord  of  the  manor, 
leads  one  to  think  that  these  were  a  transformation  of  servile 
tenures.  2d.  The  holder,  that  is  to  say,  the  tenant,  had  a  right, 
however,  to  buildings  and  things  on  the  surface  of  the  ground; 
he  could  not  be  expelled  until  he  had  been  reimbursed  for  their 
value.  This  real  right  "  sui  generis"  represented  for  him  an  indem- 
nity by  reason  of  the  improvements  made  on  the  land. 

§  326.  Free  Urban  Tenure,  which  was  sometimes  allodial  and 
sometimes  free  copyhold,  with  merely  the  burden  of  a  very  light 
rent,  can  be  likened  to  leases  for  a  long  term,  of  which  it  is  a  higher 
form.  Its  origin  is  a  problem  with  which  there  has  been  little 
concern  excepting  lately,  and  which  has  not  yet  been  entirely 
elucidated.^  Originally  there  were  seen  in  it  (Arnold)  a  trans- 
formation of  the  servile  or  domanial  tenure  (according  to  the 

"livellario"  has  the  ownership  of  the  profits  of  the  land,  but  has  no  right  to 
aUenate  it.  —  Mitteis,  "Z.  Gesch.  d.  Erbpacht  i.  Alt.,"  1901. 

1  Cf.  Argou,  III,  28:  there  exist  very  few  true  long-term  leases,  unless 
we  include  within  them  rents  on  land  which  cannot  be  bought  back  and 
which  contain  a  clause  that  the  taker  shall  be  held  to  make  improvements; 
but  in  such  a  case  as  this  there  is  neither  forfeiture,  nor  preference,  nor  lord's 
due,  nor  sales.  In  the  countries  of  written  law  the  long-term  lease  is  confused 
with  the  copyhold  (thus  it  has  a  feudal  character).  On  this  last  point  see: 
Chinon,  "D^membr.  de  la  Propr.,"  p.  49;  Roscher,  "Econ.  Pol.  rurale," 
p.  243. 

2  Henry,  "Et.  du  Dom.  Cong.,"  1894;  Law  of  Nov.  23,  1896. 

'  It  is  useless  to  bring  out  the  connection  which  exists  between  the  problem 
which  we  are  examining  in  the  text  and  the  more  general  question  of  town 
franchises. 

414 


Topic  7]  RIGHTS  IN   LAND  [§  326 

"Hofrecht");  in  an  early  stage,  the  lord  alone  having  the 
ownership,  the  tenant  could  only  cede  it  back  to  him;  during  a 
second  period  the  lord  and  the  tenant  were  found  to  be  on  an 
equal  footing;  the  tenant  sold,  the  lord  gave  the  seisin  to  the 
vendee;  during  a  third  period  the  tenant,  who  had  become  full 
owner,  no  longer  had  to  obtain  the  giving  of  seisin  from  the  lord; 
still  better,  the  r^it,  that  mark  of  servitude,  disappeared  in  its 
turn,  and  the  copyhold  became  a  freehold.  According  to  a  rather 
different  explanation,  it  has  been  maintained  that  the  holder  of  a 
piece  of  land  with  the  understanding  that  he  is  to  build  upon  it 
(and  this  supposition  is  the  most  common  in  towns),  gaining  the 
ownership  in  the  buildings  by  way  of  improvements,  in  the  end 
acquired  the  ownership  of  the  soil  itself.^  The  documents  over- 
throw both  of  these  opinions  and  make  it  clear  that  from  the  very 
beginning  there  existed  in  towns  two  kinds  of  tenure,  the  do- 
manial copyhold  and  the  free  tenure;  the  former  had  become  similar 
to  the  latter  in  the  course  of  time  (end  of  the  thirteenth  century, 
fourteenth  century).  Thus,  we  have  to  account  for  the  existence 
of  free  tenure  in  olden  times.  An  attempt  has  been  made  to  do 
this  with  the  assistance  of  distinctions:  1st.  Between  ordinary 
holdings  and  those  of  the  Count,  that  is  to  say,  of  the  old  high 
Carolingian  functionary;  it  is  only  in  these  latter  that  free  tenure 
could  have  taken  place;  the  merchants  to  whom  it  was  granted 
paid  no  rent  to  the  Count,  excepting  the  amount  due  by  reason  of 
his  right  of  justice  and  not  because  he  was  owner.  2d.  Between  the 
lay  holdings  and  the  ecclesiastical  holdings,  in  which  case  evolu- 
tion would  have  taken  place  more  slowly.^  But  these  are  only 
matters  of  fact,  the  influence  of  which  has  not  decided  the  ques- 
tion. Any  lay  or  ecclesiastical  lord,  whether  he  were  a  count  or 
not,  might  have  been  led,  by  his  own  interests,  be  it  understood, 
to  grant  lands  which  w^ere  unproductive,  even  without  reserving 
a  rent  (there  are  examples  of  this);  the  mere  presence  of  new  in- 
habitants on  his  land  ought  to  be  a  source  of  profit  to  him,  and  there 
were  to  be  found  lords  who  were  sagacious  enough  to  understand 
that  in  subjecting  their  lands  to  the  severity  of  domanial  cultiva- 
tion, by  making  of  their  tenants  serfs  or  quasi-serfs,  they  only 
ended  in  driving  these  tenants  away  from  their  domains.  Thus 
there  were  seen  upon  the  founding  of  boroughs  in  depopulated 
localities  grants  to  emigrants  of  a  privileged  area  for  the  build- 

1  This  is  the  opinion  held  by  Gobbers  and  Jager. 

*  See  especially  Desmares  and  the  examples  that  he  cites. 

415 


§  326]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

ing  of  their  houses  ("bourgage,"  "bourgeoisie,"^  "Freizins,"^ 
"Freigut,"  etc.).  This  favor  was  granted,  not  only  to  merchants 
upon  the  occasion  of  the  building  of  bazaars  and  markets,  but 
also  to  "hospites,"^  to  free  men  or  serfs  who  were  fleeing  from 
their  lord  and  little  disposed  to  enter  into  the  bonds  of  servitude. 
The  Frankish  period  already  recognized  tenures  which  were  little 
removed  from  these  almost  free  lands,  namely, 'the  tenure  at  will, 
especially  under  its  forms  of  "precaria  data"  or  "remuneratoria."  ■* 
In  the  South  of  France,  at  least,  the  persistence  of  Roman 
ownership  must  have  contributed  to  the  giving  to  inhabitants 
of  towns  these  rights  which  were  elsewhere  only  attained  with 
difficulty. 

§  327.  Rents  and  Charges,  or  Burdens  on  Real  Property.  — 
Personal  charges  and  servitudes  ^  to  which  cultivators  and  serfs 
were  bound  came  in  time  to  be  distinguished  from  real  burdens, 
such  as  rent,  revenues,  tithes,  tallage,  and  duty-service.  From 
personal  burdens  and  servitudes,  to  which  cultivators  and  serfs 
were  bound,  in  time  there  came  to  be  distinguished  real  bur- 
dens such  as  quit-rents,  rents,  tithes,  tallage,  and  duty-service. 
These  burdens  were  no  longer  looked  upon  as  a  consequence  of 
the  personal  status  of  the  tenants,  because  the  latter  had 
become  free;  but  they  were  made  a  debt  owed  by  the  land, 
which  had  not  been  enfranchised  with  the  tenants.®  Who- 
ever holds  lands  is  subjected  to  the  services  with  which  those 
lands  are  encumbered.    But  it  depends  upon  him  whether  he  shall 

*  As  to  Norman  burgage,  c/.  Genestal,  op.  cit.;  Delisle,  "Rec.  des  Jug.  de 
I'Echiq.,"  no.  140;  "T.  A.  C,  Norm.,"  5,  3;  8,  1  and  5;  11,  5;  "Summa,"  26,  2; 
(cj.  24;  29,  etc.,  "  N.  C,"  1583,  Arts.  138,  270,  331  et  seq.,  454).  The  quality  of 
the  burgages  varied:  some  were  true  freeholds;  others,  and  these  were  the 
more  numerous,  were  only  bound  to  a  payment  of  rent  to  the  lord;  and, 
finally,  certain  of  them  were  held  liable  for  the  aids  and  duty  services,  and 
were  hardly  to  be  distinguished  from  the  ordinary  villein  tenures.  The  special 
rules  which  apply  to  burgage  in  private  law,  and  which  are  only  a  return  to 
the  common  law  of  the  Customs  of  the  remainder  of  France,  consist  especially 
in  restrictions  over  the  repurchase  by  a  person  of  the  same  lineage,  in  the 
establishment  of  a  community  of  acquests  made  in  burgage,  and,  finally,  in 
equal  partition  among  brothers  and  sisters. 

,2  Rietschel,  op.  cit.  (town  of  Erfurt). 

*  As  to  guests  cf.  See,  "Les  Classes  rurales,"  p.  63. 

*  Lamprecht  and  especially  Rietschel,  op.  cit. 

»  Heusler,  "Inst.,"  II,  220;  Gross,  "Recht  an  der  Pfriinde,"  1890  (cf. 
"N.  R.  H.,"  1890,  799);  Pasquier,  "Inst.,"  p.  287  (likens  socome  to  servitudes); 
Ceyssens,  "Le  Dr.  de  Banalite"  ("Bull.  Inst.  Arch.  Liege,"  1896);  Rioufol, 
"Th6se,"U899;  Schwind,  " Reallastf rage "  ("Jahrb.  f.  Dogm.,"  33,  1); 
Sie,  "Les  Classes  rurales,"  1901;  Huber,  IV,  771,  et  seq.  (te.xts);  Stobbe, 
§  100. 

«  "Leg.  Longob.  Lud.  P  "  31  ("tributaria  terra");  Huber,  IV,  771;  "Ser- 
viciura  quale  debebat  terra. 

416 


Topic  7]  RIGHTS   IN  L.\ND  [§  328 

escape  them,  at  least  as  to  the  future,  by  yielding  them  or  by 
abandoning  them ;  ^  there  were  various  difficulties  and  solutions 
on  the  subject  of  accrued  arrears.  In  case  the  land  was  divided 
up,  each  parcel  was  held  liable  for  the  entire  charge,  for  the  latter 
was  indivisible ;  but  one  of  those  among  whom  the  land  had  been 
parceled,  for  example,  the  elder  of  the  sons  of  the  former  owner, 
habitually  rendered  the  service  for  all  ("portator").  Delay  in 
the  payment  of  arrears  resulted  in  the  loss  of  the  land,  or  its  for- 
feiture, sometimes  immediately,  sometimes  at  the  expiration  of  a 
certain  time  and  after  the  payment  of  a  fine.^  The  beneficiary  of 
a  charge  on  real  property  could  alienate  his  right  as  though  it  had 
been  a  matter  of  the  ownership  of  the  land,  and  by  the  same 
means.^  These  rights  and  charges  tended  to  disappear,  or,  at 
least,  to  be  changed  into  merely  personal  rights.^ 
0  §  328.  Rights  of  Profits,  which  were  especially  applied  to  woods 
and  forests,  belonged  to  the  inhabitants  of  a  village,  a  hamlet,  or 
a  parish  collectively.  The  condition  ordinarily  required  to  give 
rise  to  this  right  consisted  of  having  a  separate  home  in  the 
locality;  a  stranger  who  became  established  there  could  not 
claim  it,  as  a  general  thing,  excepting  upon  condition  of  obtaining 
an  express  grant  from  the  inhabitants,  or  of  becoming  a  member, 
for  example,  as  a  son-in-law,  of  one  of  the  families  which  had  been 
domiciled  there  for  a  long  time.^  The  object  of  these  rights  varied 
greatly.  One  can  cite  as  the  most  common  objects:  "estovers,"  or 
the  right  to  take  wood  for  fires;  ^  "marrenage,"  or  the  right  to  take 
wood  for  building  purposes,''  which  was  not  so  common;  "pan- 
nage," or  pasture,  which  was  the  right  to  pasture  domestic  ani- 
mals; ^  "  acorning,"  which  was  the  right  to  turn  pigs  loose  in  the 

1  Beaumanoir,  24,  7  et  seq.;  "Cout.  Not.,"  70,  96,  97,  171;  Desmares,  183; 
"Gr.  Cout.,"  p.  317.    Cf.  De  Luca,  "De  Cens.,"  18. 
'^  Bermmanoir,  24,  19  et  seq.;  "L.  d.  Droiz,"  no.  391. 
3  "Scnlis,"  275;  "Valois,"  189. 

*  Difficulties  and  controversy  in  the  juridical  analysis  of  these  rights.  De 
Luca  had  already  seen  in  them  nothing  but  obligations,  Covarruvias  and 
Carpzov  mortgage  debts,  etc.  The  legal  historian  only  sees  in  these  theories 
successive  expressions  of  a  varying  economic  and  political  condition. 

^  Beaumanoir,  loc.  cit.  The  "Coutumede  Bcauvaisis,"  which  was  opposed 
to  freeholds,  required  that  a  rent  should  be  paid  to  the  lord  for  rights  of  user 
in  forests;  the  latter  had  to  be  established  by  a  seigniorial  chart  confirmed  by 
the  sovereign,  when  they  resulted  in  "essil"  (devastation). 

^  Beauvianoir,  24,  17.  Cf.  after  the  Frankish  period  the  rights  which  were 
called  "lignaritia,"  "focagium,"  "silvaticum,"  etc.  Du  Cange,  see  "Talh  et 
Dath"  (Bc'^arn).  The  rent  due  to  the  lord  generally  bears  the  same  name  as 
the  right  of  user. 

^  "Materiamon,"  stave-wood;  see  Du  Cange. 

*  "OUm,"  Index.    See  "Pasnagium,"  "Usagia";  Du  Cange,  Ragueau,  see 

417 


§  328]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

oak  groves  during  the  acorn  season.^  As  long  as  woods  and  forests 
covered  a  large  part  of  the  soil  of  France,  the  indulgence  in  these 
rights  could  be  tolerated;  but  in  proportion  as  clearings  reduced 
the  wooded  tracts,  and  these  clearings  underwent  a  regular  de- 
velopment, these  Customs  of  forestry  had  to  be  restrained.^  Fur- 
thermore, it  was  unavoidable  that  they  should  all  disappear,  as  is 
the  case  at  the  present  time. 

§  329.  Usufruct.  —  From  the  time  of  the  Frankish  period  it  is 
not  uncommon  to  meet  with  estates  consisting  in  the  enjoyment 
of  land  for  life,  which,  according  to  the  Roman  classification,  can 
scarcely  be  ranged  anywhere  but  under  the  title  of  usufruct,  al- 
though they  may  be  far  from  being  subject  to  the  same  regulations. 
The  beneficiary,  the  tenant  at  will,  have  an  enjoyment  which  is 
for  life  or  temporary.  But  what  a  difference  there  is  between  them 
and  the  Roman  usufructuary!  They  are  already  hoping  for  aa 
estate  which  is  capable  of  being  inherited,  that  is  to  say,  for  full 
ownership.  The  dower  rights  of  the  widow  become  very  like  the 
usufruct.  The  "mundoaldus"  is  rather  an  owner  than  a  usu- 
fructuary of  the  possessions  of  his  ward.  This  kind  of  enjoyment 
of  land  seems  a  little  like  ownership  for  life.  It  makes  one  think 
of  the  rights  of  the  party  who  is  charged  with  a  trust-entail. 

This  idea  has  almost  entirely  disappeared  from  the  Customary 
law,^  being  destined  to  give  way  to  the  Roman  theory  of  usufruct, 
which  is  a  more  clever  one,^  but  which  is  so  well  known  that  it 
would  be  useless  to  deal  with  it  here.^    Let  us  simply  notice  what 

"Pexe,"  "Dent"  and  "Jasiiha"  (to  let  his  flocks  sleep,  "jacere,"  upon  the 
land,  and  let  them  rest  there  two  nights:  Bearn);  Giraiid,  II,  14.  Cf.  R.  Cail- 
lemer,  "Execut.  Test.,"  274,  330,  378. 

1  Du  Cange,  see  "Esca";  Lamprecht,  p.  119. 

2  Loysel,  250:  "No  one  can  have  a  right  of  user  in  the  lord's  domain  of  an- 
other without  title,  or  without  paying  a  rent  for  a  sufficient  time  to  acquire 
it  by  prescription,  or  if  he  have  immemorial  possession." 

3  P.  de  Fontaines,  21,  46;  "Jostice,"  pp.  137,  144;  "Gr.  Gout.,"  p.  195  et 
seq.;  "Anjou"  ed.  Beautemps-Beaupre,  Table,  see  "Usufruit";  Masuer,  XIII; 
Boutaric,  I,  56;  Pasqider,  "Inst.,"  p.  273. 

^  Galvanus,  "De  Usuf.,"  1630,  1676. 

^  Let  us,  however,  give  a  few  details :  Givil  Gode,  585  (expenses  of  labor) ; 
Renusson,  "Douaire,"  14,  40  (recompense);  Pothier,  "Douaire,"  201,  272; 
"Introd.  k  la  Gout.  d'Orleans,"  VII,  43  (distinction).  —  Prices  of  farm  leases: 
Dig.,  33,  2,  58,  "pr.";  Pothier,  ibid.,  203;  Denisart,see  "Fruits,"  IX,  3,  3 
(acquired  by  the  usufructuary  taking  into  consideration  the  state  of  the  har- 
vest); Poullain-Duparc,  "Principes,"  III,  p.  290  (day  by  day,  in  Brittany;  id., 
Givil  Gode).  —  Mines  and  quarries,  Pothier,  196;  Argou,  II,  7;  Givil  Gode, 
598.  —  The  mere  owner  keeps  up  the  house  (the  main  walls,  etc.),  the  usu- 
fructuary the  rest  (partition  walls,  etc.).  The  latter  has  no  right  to  be  paid 
for  any  improvements  or  additions  which  he  may  have  made.  —  Usufruct  for 
the  benefit  of  a  moral  person:  Givil  Gode,  619  (100  years);  cf.  Dig.,  33,  2, 
56;  R.  de  Lacombe,  see  "Usuf.,"  6,  7  (30  years);  cf.  Dig.,  35,  2,  68.  —  For- 

418 


Topic  7]  RIGHTS  IN  LAND  [§  330 

great  legal  importance  the  usufruct  had.  Later  on  we  will  deal 
with  the  principal  cases  in  which  it  is  recognized;  for  example, 
the  case  of  dower. 

§  330.  Right  of  the  Beneficiary  over  an  Ecclesiastical  Bene- 
fice. —  The  holder  of  an  ecclesiastical  benefice  has  over  the  prop- 
erty which  is  comprised  therein  a  "jus  in  re"  which  allows  him  to 
take  the  profits  therefrom,  so  as  to  be  able  to  fulfill  the  office 
which  is  entrusted  to  him;  this  right  is  a  sort  of  life  estate  or  usu- 
fruct, having  peculiarities  which  relate  to  the  nature  of  ecclesi- 
astical possessions;^  in  order  to  enforce  this  right,  the  beneficiary 
may  make  use  of  the  action  for  real  property  and  the  action  for 
possession.^  The  acquisition  of  benefices  passed  through  various 
phases:  the  beneficiary  was  not  always  appointed  by  his  eccle- 
siastical superior;  he  was  often  chosen  by  a  lay  or  ecclesiastical 
patron,  and,  compared  with  being  chosen  by  the  latter,  the  inter- 
vention of  the  ecclesiastical  superior  was  of  little  importance, 
because  this  could  only  be  exercised  to  confirm  a  candidate  who 
was  chosen  by  a  patron.  From  the  choice  by  the  patron  there 
resulted  first  of  all  acquirement  of  the  benefices  ("beneficium 
affectum");  neither  the  patron  nor  the  ecclesiastical  superior  were 
authorized  to  deprive  the  beneficiary  of  his  right  ("variare  non 
possunt");  he  was  in  the  same  situation  as  an  owner  who  had 
not  yet  taken  possession.  In  proportion  as  the  part  played  by  the 
ecclesiastical  authority  increased,  to  the  detriment  of  that  played 
by  the  patron,  legal  theory  found  difficulty  in  defining  the  right 
of  the  beneficiary  who  had  been  appointed,  but  upon  whom  the 
benefice  had  not  yet  been  conferred  by  his  superior;  the  benefi- 
ciary did  not  have  the  actual  exercise  of  his  right,  but  at  the 
same  time  the  benefice  had  been  set  apart  for  him  in  such  a  way 
that  it  could  not  be  conferred  on  anybody  else.  The  canonists 
declared  that  this  beneficiary  did  not  have  any  "jus  in  re"  before 
the  bestowal;  but,  as  he  had  something  better  than  a  personal 

feiture  for  abuse  of  enjoyment  makes  its  appearance  in  our  old  law  especially 
with  regard  to  dower. 

1  The  beneficiary  has  been  compared  to  a  vassal,  the  holder  of  a  long-terra 
lease,  the  usufructuary,  etc.;  all  these  comparisons  err  in  some  direction.  The 
benefice  is  an  endowment  connected  with  an  ecclesiastical  function;  from  this 
there  result  special  characteristics.  Cf.  "Summa"  by  Huguccio  (in  1187), 
on  Gratian,  c,  13,  C,  12,  q.  1:  clericals  can  only  dispose  of  profits  collected 
"in  usus  domesticos  et  in  causas  pietatis";  they  have  no  right  to  dispose  of 
them  by  will.  This  is  not  the  same  in  the  case  of  an  ordinary  usufructuary. 
This  point  of  discipline  was  modified  towards  the  fifteenth  century:  Dig.  X, 
3,  22,  2,  4;  VI,  3,  3,  1;  "Cone.  Trid.,"  a.  22,  c.  3  et  seq.,  23,  c.  1  (authority 
of  St.  Thomas). 

2  See  as  to  the  possession  of  benefices :  Grossman,  pp.  199,  263,  etc. 

419 


§  330]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

right,  they  recognized  the  fact  that  he  had  a  "jus  ad  rem";  ^  this 
was  a  forfeiture  for  him,  pending  the  time  when,  as  in  our  day, 
wherever  there  remain  vestiges  of  the  ecclesiastical  patronage,  the 
ecclesiastical  authority  should  take  upon  itself  the  power  of  re- 
fusing the  canonical  installment  of  the  candidate  who  had  been 
designated  to  it  or  else  only  authorize,  at  any  rate,  an  application 
of  an  administrative  nature.^  The  canonical  theory  which  we  have 
mentioned  corresponds  to  a  stage  of  transition  in  the  history  of  re- 
ligious functions.  This  stage  furnished  Jacques  de  Revigny  with 
the  idea  of  giving  a"  jus  ad  rem"  to  the  vassal  who  had  received 
symbolical  investiture,  but  not  physical  delivery.  The  civil  jurists, 
in  their  turn,  applied  it  in  various  ways,  for  example,  to  give  a 
"jus  ad  rem"  to  the  purchaser  who  had  not  yet  taken  delivery  of 
the  thing  sold ;  in  the  end  this  right  degenerated  into  a  mere  claim. 
§  331.  Real  Servitudes.  —  Rights  established  over  an  inherit- 
ance or  servient  tenement  for  the  benefit  of  another  or  dominant 
tenement,  —  such  is  the  Roman  conception  of  predial  servitudes, 
they  are  so  inherent  in  the  land  that  they  are  often  spoken  of  as 
"attributes  of  the  land";  also,  they  could  no  more  impose  the  obli- 
gation of  performance  upon  the  owner  of  the  servient  tenement 
than  they  could  be  established  simply  for  the  personal  convenience 
of  the  incumbent.  They  seem  like  restrictions  on  the  right  of 
ownership,  and  therefore  like  exceptions  wliich  ought  to  be  limited. 
Our  old  authors,  going  back  to  the  Roman  tradition,  formulated 
this  conception  in  the  following  terms:  "By  the  law  of  nature, 
every  inheritance  is  free  and  exempt  from  servitudes."  ^  As  is 
ordinarily  the  case,  when  they  refer  to  natural  law,  facts  belie 
their  assertions.  The  Customary  law  admits  the  existence  of  so 
large  a  number  of  legal  servitudes  which  are  based  upon  old  usages 
and  an  old  organization  of  ownership,  that  it  would  be  nearer  the 

*  Innocent  IV  contrasts  the  "concessio  episcopi"  from  which  there  results 
for  the  beneficiary  the  "jus  in  re"  and  "dominium"  or  "quasi  dominium" 
with  the  "praesentatiopatroni,"  which  only  gives  a  "jus  ad  rem  petendam,  ad 

Eetendum  beneficium"  sanctioned  by  a  "personalis  actio"  (judicial  way)  or 
y  an  "imploratio  ad  officium  judicis"  (administrative  way);  on  Dig.  X,  1, 
2,  9;  1,  3,  19,  38;  1,  30,  6,  etc.  (about  1245).  By  this  means  alone  does  the 
bestowal  transmit  the  "jus  in  re"  ("sine  traditione  rei  vel  presencia");  the 
installation  which  follows  gives  the  right  of  retaining.  "Archidiaconus" 
{Guido  de  Baysio),  the  teacher  of  Jean  d' Andre,  is  perhaps  the  first  canonist 
who  has  made  use  of  the  expression  "jus  ad  rem."  As  to  the  evolution  of  the 
canonic  theories  and  the  effects  of  the  "jus  in  re"  and  the  "jus  ad  rem"  cf. 
Grossmann,  p.  169  et  seq. 

^  As  to  this  changing  of  a  private  right  into  an  administrative  right,  cf. 
Grossman,  p.  274.    The  beneficiaries  of  former  times  may  be  likened  to  public 
functionaries  (salable  offices). 
3  Lalure,  I,  2. 

420 


Topic  7]  RIGHTS   IN   L-YND  [§  331 

truth  to  say  "Every  inheritance  is  burdened  with  servitudes;  the 
freedom  of  a  piece  of  land  is  an  accident."  According  to  this  right, 
nothing  stands  in  the  way  of  the  creation  of  a  predial  servitude 
for  the  benefit  or  the  convenience  of  a  person  (e.  g.,  right  of  pastur- 
age belonging  to  a  corporation  of  butchers);  nor  does  anything 
prevent  its  existing  "in  faciendo,"  that  is  to  say,  its  compelling  the 
owner  of  the  servient  tenement  to  carry  out  certain  acts  (for  ex- 
ample, keep  a  way  in  good  condition).  The  feudal  rights  here 
furnish  a  legal  type  opposed  to  that  of  the  Roman  law;  it  is 
sufficient  in  proof  of  this  to  recall  certain  real  duty-services,  or, 
again,  the  right  of  the  lords  to  demand  that  their  tenants  come 
at  night  and  thrash  the  ponds  in  order  to  prevent  the  frogs  from 
disturbing  their  slumbers  (a  right  whose  existence  is  disputed).^ 
Serfdom,  personal  and  real  servitudes,  rights  over  land,  and  feudal 
rights,  are  not  very  readily  distinguished  in  the  minds  of  our  old 
jurisconsults.  The  memory  of  those  old  services  abolished  by  the 
Revolution  still  clung  to  the  framers  of  the  Civil  Code  to  such 
an  extent  that  they  thought  themselves  obliged  to  lessen  the 
bad  impression  produced  by  the  word  "servitude"  by  joining 
thereto  the  term  "real  services,"  which  was  one  of  explanation, 
and  which  was  less  compromising  (Civil  Code,  526). 

As  we  have  discussed  feudal  rights  elsewhere,  we  will  only  deal 
with  predial  servitudes  in  the  Roman  sense,  that  is  to  say,  which 
imply  the  subjection  of  one  piece  of  land  to  another.^  Our  old 
authors  borrowed  almost  everything  on  this  point  from  the  doc- 
trines of  the  Roman  jurists,  which  had  predominated  in  the  end.^ 
Disputes  with  relation  to  these  servitudes  were  decided  after  an 
inspection  of  the  locality  by  experts  or  juries  charged  with  mak- 
ing a  report.  They  were  named  by  orders  of  the  judge  in  the 
presence  of  the  parties.  The  latter  had  the  right  to  offer  opposi- 
tion, that  is  to  say,  to  require  a  revision  or  a  substitution  in  this 
jury.  Since  the  reformation  of  the  Custom  of  Paris  in  1580  (Art. 
184)  it  is  only  the  judge  who  can  order  a  wider  scope  of  informa- 
tion to  be  obtained.'* 

1  Michelet,  "Orig.,"  p.  253;  Gnmm,  "R.  A.,"  p.  356. 

*  As  to  relations  of  vicinage,  cf.  Grimm,  "R.  A.,"  p.  500. 

'  Beaumanoir,  30,  27;  34,  especially  22  et  seq.;  24,  15,  31;  "Jostice,"  p.  137 
et  seq.,  146;  "Gr.  Cout.,"  pp.  196,355,  790;  "Et.de  St.  Louis,"  ed.  Viollet,  I, 
p.  325;  "L.  d.  Droiz,"  I,  116;  "Cout.  d'Anjou,"  ed.  Beautemps-Beaupre,  IV, 
11;  Masuer,  XXXIX;  Boutanc,  II,  17, 18;  "Confer.  desCoutumesdeGudnois," 
II,  9;  Loysel,  2,  3;  L'Hommeau,  III,  411  et.  seq.;  Lamoignon,  "Arr.,  t.  des 
Serv.  Prevot  de  la  Jan^s,"  I,  358;  Argou,  II,  7,  etc. 

*  As  to  these  juries,  cf.  "Cout.  Not.  du  Ch&t.,"  75;  "Gr.  Cout.,"  2,  39 
(p.  361);  "A.  C,  d'Anjou,"  ed.  Beautemps-Beaupre,  1, 145;  II,  160,  etc.;  "Paris, 

421 


§  332]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

§  332.  The  Same.  —  Certain  servitudes  are  natural  and  legal, 
others  established  by  the  act  of  man.  (I)  Natural  Servitudes. 
The  former  are,  as  it  were,  an  integral  part  of  the  system  of  land 
ownership.  I  am  not  here  speaking  of  those  which  are  almost  un- 
avoidable, such  as  the  obligation  of  the  owner  of  a  lower  piece  of 
land  to  receive  the  water  which  naturally  percolates  from  the  higher 
piece  of  land,  but  of  those  which  are  less  necessary,  rather  legal  than 
natural,  and  which  vary  a  great  deal  with  local  usage  and  the  state 
of  agriculture.  The  barbarian  laws,  and  especially  the  Visigothic 
laws,  thus  give  passers-by  the  right  to  settle  themselves  for  two 
days  upon  pastures  by  the  roadside,  to  pasture  their  domestic 
animals  thereupon  and  to  cut  the  branches  of  trees.  Much  later 
on,  Loysel  still  sets  up  the  rights  of  the  passer-by,  which  are  very 
much  lessened  in  his  time,  in  the  gibe,  "  Everything  which  comes 
to  the  hedge  is  plunder"  (282).^  At  the  time  when  these  primi- 
tive Customs  have  disappeared  there  are  to  be  distinguished :  ^ 
1st,  servitudes  of  public  utility  (stepping-stones,  towpath,  etc.);' 
2d,  servitudes  of  private  interests  (ladder  space,^  "invetison,"  ^  the 
right  of  way  over  an  enclosure,^  etc.) ;  3d,  obligations  imposed  by 
police  regulations  (Customary) ,  distance  to  be  kept  in  planting  trees,^ 

A.  C,"  79;  "N.  C,"  184;  Lauriere,  on  185  "Paris";  Guyot,  see  "Expert,"  "Rap- 
port," "Visite,"  etc.;  Ferriere,  see  "Experts";  Edicts  of  May,  1690:  experts 
appointed  to  hold  office  as  such;  "Ord."  of  Apr.,  1667;  Edict  of  Feb.,  1554; 
June,  1575;  May,  1689,  etc.  Vol.  IX  of  the  "Cout.  de  Paris"  has  as  its 
rubric:  "Concerning  Servitudes  and  Reports  of  Juries." 

1  "Deutr.,"  xxiii;  "Wis.,"  8,  4,  25  et  seq.;  2,  3,  etc.;  "Roth.,"  358;  Dahn, 
"Westg.  Stud.,"  p.  96;  Michelet,  "Orig.,"  pp.  Ill,  411;  Gnmm,  "R.  A.,"  107, 
554.  —  The  "Cout.  de  Nivern.,"  "Champarts,"  1,  allowed  each  one  to  labor 
upon  the  land  of  another,  provided  that  the  owner  did  not  forbid  it.  Cf. 
Fournel,  "Voisin,"  see  "Terres  Abandonees." 

2  Various  servitudes  in  the  Customs,  and  sometimes  the  same  servitudes 
under  different  names.  "Etual"  or  drainage  in  the  "Tranches  Montagnes." 
For  Flanders  see  Britz,  p.  631.  As  to  the  lawful  servitude  of  acqueduct  (irri- 
gation of  lands)  details  in  Fertile,  §  144  (it  existed  in  Italy  in  the  eighth 
century;  numerous  provisions  in  the  Italian  statutes);  §  145  (other  la^'ful 
servitudes) . 

'  Beaumanoir,  24,  14.  As  to  public  ways  and  their  dimensions,  ibid.,  25,  1 
et  seq.;  Loysel,  232,  333;  "Expos,  des  Cout.  sur  la  Largeur  des  Chemins,"  1687; 
Ragueau,  Ferriere,  Guyot,  see  "Chemins."  — As  to  dikes,  cf.  J.  GieYke,  "Gesch. 
d.  Deutsch.  Deichrechts,"  1901;  Ravel,  "Us.  de  Bresse,"  p.  219;  Collet,  id., 
p.  89. 

*  Right  of  placing  a  ladder  upon  the  land  of  one's  neighbor  and  of  occupy- 
ing the  necessary  space  for  turning  the  ladder  when  one  had  to  repair  or 
con.struct  a  building.  —  Chaisemartin,  "Prov.,"  p.  171,  "Pflugrecht,"  space 
Bufiicient  for  the  turning  of  a  cart,  etc. 

*  An  obligation  to  leave  a  space  of  five  feet  (South)  between  the  neighbor- 
ing house  and  that  which  one  was  building.    Cf.  "ambitus"  at  Rome. 

«  Beaumanoir,  43,  45;  "Jostice,"  p.  142;  Loysel,  2,  3,  16;  Grimm,  p.  553. 
Cf.  Dig.,  2,  7,  12;  Fertile,  §  145. 

7  Cf.  Loysel,  256;  "Cout.  Not.,"  107;  "Paris,"  187. 

422 


Topic  7]  RIGHTS  IN  LAND  [§  333 

for  the  establishment  of  cesspools,  etc./  flow  of  refuse  water 
and  rain  water;  4th,  cases  of  compulsory  joint  ownership,  such 
as  party  ownership  or  ownership  by  agreement,  like  the  owner- 
ship of  the  separate  stories  of  a  house,  and  the  relations  which 
spring  therefrom  between  the  joint  owners;  even  obligations  of 
enclosing  and  keeping  within  boundaries  ^  have  a  place  among 
servitudes. 

In  the  North,  where  houses  were  contiguous  and  not  separated 
from  one  another  or  isolated  ("insulse"),  as  was  often  the  case  in 
the  South,  if  one  owner  built  up  to  the  edge  of  his  land,  he  could 
not  prevent  his  wall  from  becoming  party  property  owned  by  him- 
self and  his  neighbor  if  the  latter  should  decide  to  build  at  the 
same  spot;  ^  in  order  to  acquire  the  party  ownership,  it  was  neces- 
sary to  pay  the  price  of  half  of  the  wall  and  half  of  the  land  upon 
which  it  was  erected;  thus  there  had  been  recognized  a  veritable 
dispossession  because  of  private  utility.  The  system  of  the  party 
wall  is  a  system  of  compulsory  joint  ownership  whose  details,  as 
well  as  those  relative  to  servitudes  of  light,^  are  to  be  found  in  a 
number  of  the  Customs,  and  especially  in  the  Custom  of  Paris. 
The  Customs  also  admit  the  party  ownership  of  hedges  and 
ditches. 

§  333.  The  Same.  —  (II)  Servitudes  established  by  the  act  of  man 
are  the  result  of  judgments  (on  the  occasion  of  a  partition)  ^  and 
even,  according  to  some  opinions,  of  decrees,®  of  contracts,^  of  wills, 

1  "Gr.  Gout.,"  p.  357;  "Gout.  Not.,"  nos.  173,  272. 

^  Gompulsory  enclosure:  Loysel,  2,  35;  Michelet,  "Orig.,"  87,  102;  Grimm, 
"R.  A.,"  543;  P.  de  Fontaines,  21,  66;  "Jostice,"  p.  142;  Beaumanoir,  30,  27; 
43,  45;  "Gout.  d'Anjou,"  ed.  Beaufemps-Beaupre,  II,  184;  "Et.  de  St.  Louis, 
I,  136;  Boutaric,  p.  211,  etc.;  De  Ribbe,  "Soc.  Proveng.,"  1898,  p.  185;  Loysel, 
255:  "boundaries  are  set  by  authority  of  law." 

3  Beaumanoir,  24,  22;  "Gr.  Gout.,"  2,  38  (p.  355);  "Gout.  Not.,"  8,  77,  156, 
173,  272;  "Gonst.  du  Ghat.,"  §  49;  "Paris,"  192  et  seq.;  "Ass.  de  J6rus.,'* 
"G.  des  B.,"  ch.  150;  Loysel,  283:  "In  towns  every  wall  is  a  party  wall  unless 
the  contrary  is  evident."  "Anjou,"  ed.  Beautemps-Beaupre,  IV,  11;  Britz, 
p.  634;  Fertile,  §  144. 

*  Gresinger,  "De  Servit.  Luminum,"  1819;  Britz,  p.  644;  Fertile,  §  144." 

^  Cf.  "adjudicatio"  in  Roman  law. 

'  A  servitude  comes  into  existence  by  means  of  a  distraint  upon  land:  the 
owner  of  the  servient  tenement  offers  no  opposition;  the  judgment  creditor 
has  a  right  to  exercise  the  servitude:  La  Thaumassiere,  on  "Berry,"  2,  1; 
CaOTMS,'on  "Paris,"  186.  According  to  Lamoignon,  "  Arr.,  t.  des  Servit.,"  Art.  3, 
he  only  has  a  right  to  gain  it  by  the  prescription  of  ten  or  twenty  years:  Fer- 
riere,  on  "Paris,"  1,  8.  A  great  number  of  jurisconsults  rejected  both  of  these 
opinions:  Gouget,  "Tr.  des  Gri6es,"  2,  4,  130. 

^  As  to  the  intervention  of  the  lord  and  the  Gustoms  of  public  nams,  cf. 
"Paris,"  215-  "Orleans,"  227;  "Gr.  Gout.,"  2,  38;  Desgodets,  on  215  "Paris." 
Lamoignon,  Arr.,"  op.  cit.:  it  is  useless  to  specify  visible  servitudes.  Cf. 
Givil  Code,  694.  The  compulsory  decree  cleared  off  all  hidden  servitudes, 
but  not  visible  ones:  Edict  of  1551,  Art.  12;  Gouget,  "Grimes,"  p.  442, 

423 


§  333]  OWNERSHIP   AKD    REAL   RIGHTS  [Chap.  II 

of  intention  on  the  part  of  the  father  of  the  family,  or  of  prescrip- 
tion. —  Intention  on  the  part  of  the  father  of  the  family.^  The 
court  practice  of  countries  of  written  law  did  not,  any  more  than 
did  the  Roman  law,^  admit  on  principle  this  method  of  creating 
servitudes.^  It  was  afraid  of  increasing  them  beyond  measure;  for 
this  mode  of  creating  servitudes  it  was  sufficient  if  the  owner  of 
two  pieces  of  land  made  use  of  one  for  the  benefit  of  the  other; 
the  day  when,  following  a  sale  or  a  partition,  the  two  pieces  of 
land  had  different  owners,  this  state  of  affairs  became  transformed 
into  a  servitude  by  law.  The  Customary  law,  however,  recognized 
them;  doubtless  from  the  very  character  of  the  ownership  of 
real  property  it  had  difficulty  in  freeing  itself  from  its  collec- 
tive forms.  In  the  old  Custom  of  Paris,  Art.  91,  "conferring 
and  appointment  by  the  father  of  the  family  are  equal  to  a 
deed."  ^  Such  is  still  the  rule  of  many  of  the  Customs;  °  some  of 
them  restrict  it  to  the  case  of  partition.^  But  at  the  time  of  the 
reformation  of  the  Custom  of  Paris,  Art.  216,  it  was  specified 
that  appointment  by  the  father  of  the  family  would  not  be  equiva- 
lent to  a  deed  unless  it  should  be  proved  in  writing.^  This  would 
have  meant  doing  away  with  this  method  of  the  establishment  of 
servitudes,  if  the  texts  had  been  strictly  interpreted,  as  certain 
people  wished  them  to  be.  Tradition  was  sufficiently  strong  to 
uphold  this  method ;  they  limited  it  to  the  forbidding  of  proof  by 
means  of  witnesses  when  one  of  the  pieces  of  land  had  served  for 
the  benefit  of  the  other  where  both  had  a  common  owner;  a  written 
proof  was  demanded  (for  example,  the  receipts  of  workmen  who 
had  constructed  a  sewer).  Even  with  this  interpretation  the  Cus- 
tomary law  drew  nearer  the  Roman  law,  and  the  appointment  by  the 
father  of  the  family  lost  some  of  the  extent  of  its  application.^  — 
Prescription.^    The  old  law  was  very  much  split  up  upon  the  ques- 

1  Lalaure,  3,  9  and  10;  Guyot,  see  "Serv.,"  17  and  18;  Villequez,  "R.  h.  Dr.," 
V,  197;  Machelard,  "Examen  critique  des  Distinctions  admises  en  ce  qui  cone, 
les  Serv.  Prediales,"  p.  122. 

2  Machelard,  op.  cit.;  Dig.,  8,  3,  31;  8,  4,  7,  10;  33,  3,  1. 

'  Serres,  "Inst.,"  II,  3  (p.  145);  contra:  Julien,  "Elem.,"  p.  154. 

*  "Cout.  Not.,"  80,  108,  174;  "Gr.  Gout.,"  p.  359. 

6  "Etampes,"  73;  "Melun,"  189;  "Reims,"  350,  etc. 
«  "Touraine,"  212;  "Norm.,"  609. 

7  "Paris,"  215,  216;  Ferriere,  on  "Paris,"  216;  Pothier,  on  "Orleans,"  228; 
Poullain-Duparc,  on  "Bret.,"  Ill,  307;  Pasquier,  "Inst.,"  p.  268. 

*  Indeed,  it  seems  that  in  the  old  law  the  intention  of  the  father  of  the 
family  only  applied  to  visible  servitudes.  And,  moreover,  there  is  not  a  very 
clear  distinction  made  between  their  being  visible  ana  being  continuous: 
Lalaure,  I,  1,  and  II,  2;  Guyot,  see  "Serv.,"  nos.  7  and  8  (visible  and  hidden). 

9  D'Argentre,  on  "Bret.,"  271;  Ferriere,  on  "Paris,"  186;  Pothier,  "Prescr.," 

424 


Topic  7]  RIGHTS  IN  LAND  [§  333 

tion  of  the  acquiring  of  servitudes  by  means  of  prescription.  It 
seems  that  in  early  times  this  method  was  looked  upon  with  favor 
because  servitudes  were  like  the  residue  of  a  system  of  collective 
ownership.^  Reaction  in  the  direction  of  individual  ownership  led 
to  the  principle  of  the  Custom  of  Paris,  Art.  186:^  "no  servi- 
tude can  exist  without  a  deed."  ^  However,  there  still  had  to  be  a 
struggle  against  immemorial  possession,  which  resisted  being  pro- 
scribed, and  which  in  certain  Customs  succeeded  in  being  main- 
tained.^ The  new  rule  had  great  practical  advantages:  it  cut  short 
many  suits  based  on  the  existence  of  servitudes.  The  Civil  Code, 
adopting  an  intermediate  system,  the  elements  of  which  were 
furnished  it  by  the  court  practice  of  the  countries  of  written  law,^ 
admits  of  prescription,  but  only  for  servitudes  which  are  contin- 
uous and  apparent.®  The  extinction  of  servitudes  by  non-user  of 
thirty  days,  which  had  been  borrowed  from  the  Roman  law,  was 
generally  accepted.'^ 

no.  286;  Guyot,  see  "Serv.,"  22.  Full  details  in  Lalaure,  I,  II,  III.  As  to  toler- 
ation, cf.  the  German  proverb:  "Friendship  and  good  will  do  not  create  any- 
right."  Chaisemartin,  p.  176;  Beaumanoir,  24,  15. 

1  "Douai,"  9,  2;  "Gr.  Perche,"  216:  immemorial  possession.  Elsewhere 
possession  of  ten  or  twenty  years,  of  thirty  or  forty  years,  etc.  "Artois,"  72; 
"Auvergne,"  17,  1;  "Chalons,"  144,  etc.  See:  "Conference  de  Guenois"; 
D'Argentre,  on  271  "Bret.,"  see  "Sans  Titre,"  no.  10;  Dunod,  p.  3,  ch.  6; 
Pothier,  "Poss.,"  no.  90.  *' 

^  It  is  already  found  to  be  formulated  in  the  fourteenth  century:  "Cout. 
Not.,"  8;  Desmares,  387;  "Gr.  Cout.,"  II,  38  (p.  353).  Cf.  Beaumanoir,  24, 
15,  31;  "L.  d.  Droiz,"  no.  711;  "Anjou,"  ed.  Beautemps-Beaupre,  Table,  see 
"Servit.";  Loysel,  293;  "Ord."  of  1495,  5  (Isambert,  XI,  156). 

'  Dumoulin,  on  230  "  Blois";  Coquille,  on  "Niv.,"  10, 2;  Ferriere,  on  "Paris," 
186.    Cf.  Civil  Code,  242. 

*  Ante,  ^  288;  Loysel,  299. 

'  Serves   "Inst.  "  II   3. 

«  Dig.,  8,  2,  28 '(Pa J./)."   Cf.  Machelnrd,  op.  cit. 

^  Domat,  1,  12,  6,  5;  Pothier,  on  "Orl.,"  XIII. 


425 


§334] 


OWNERSHIP   AND    REAL   RIGHTS 


[Chap.  II 


Topic  8.     Restrictions  upon  the  Freedom  of  Alienating 
Inter  Vivos.  —  Repurchasing 


§334. 

§335. 
§336. 

§337. 


§338. 

§339. 
§340. 
§  341, 


The  Freedom  of  Grant  "Inter 
Vivos." 

Repurchase. 

Disadvantages  of  Repurchases 
and  Their  Suppression. 

The  Repurchases  of  the  Civil 
Code  and  Actions  of  Subro- 
gation. 

The  Repurchasing  by  a  Person 
of  the  Same  Lineage. 

The  Consent  of  the  Relatives. 

Offer  to  the  Next  of  Kin. 

Repurchase. 


§  342.  Conditions  of  the  Repurchase. 
(I)  Property  Subject  to  the 
Repurchase. 

§  343.  The  Same.  —  (II)  Acts  which 
give  Rise  to  the  Repurchase. 

§  344.  The  Same.  — (Ill)  Who  has  the 
Right  to  the  Repurchase? 

§345.  The  Same. — (IV)  Against  whom 
was  the  Repurchase  allowed? 

§  346.  The  Same.  —  (V)  The  Repur- 
chase of  "half  funds." 

§  347.  Procedure. 

§  348.  Effects  of  the  Repurchase. 


§  334.  The  Freedom  of  Grant  "  Inter  Vivos  "  of  immovable 
possessions  was  subject  in  the  old  law  to  numerous  restrictions: 
some  of  them  rested  on  the  inadequateness  of  the  rights  of  the 
owner,  like  the  theory  of  repurchasing;  others,  on  the  incapacity 
of  the  vendee;  thus,  the  prohibition  of  making  a  grant  for  the 
benefit  of  people  in  mortmain » (which  has  been  discussed  else- 
where),^ and  especially  for  the  benefit  of  the  Church;  "vendere 
cuilibet  poterit  prseter  ad  Ecclesiam,"  this  formula  is  often  met 
with  in  the  Middle  Ages. 

§  335.  Repurchase.  —  The  rights  of  his  lord,  of  his  relatives,  of 
his  neighbors  or  fellow  owners,  are  superimposed  upon  those  of 
the  owner  of  land  over  his  possessions.  Each  one  of  these  joint 
owners  is  qualified  to  have  a  part  in  the  alienation  of  the  property; 
his  right  is  more  or  less  strongly  manifested  according  to  the  pe- 
riod, and  ordinarily  according  to  a  decreasing  progression  along 
the  lines  of  authorization,  of  pre-emption,  and  of  repurchase.  The 
normal  way,  in  fine,  —  that  which  prevailed  in  our  old  legislation 
as  constituting  a  compromise  between  the  old  system  of  owner- 
ship and  the  modern  system  of  individual  ownership,  —  is  repur- 
chase, or  the  right  to  take  back  to  oneself,  to  repurchase  the  land 
sold  by  its  owner  to  a  third  party,  upon  condition  of  indemnify- 
ing the  latter;  one  is  substituted  for  him  or  is  subrogated  to  him, 
and  takes  the  bargain  upon  oneself.    This  repurchasing  scarcely 

1  Cf.  as  to  the  English  legislation,  Pollock  and  Maitland,  1,  314.  Details 
and  texts  for  Italy  in  Fertile,  §  146.     See  also  Pollock,  "Land  Laws,"  p.  91. 

426 


Topic  8]        FREEDOM   OF   ALIENATING  —  REPURCHASING  [§  335 

makes  its  appearance  in  the  legislation  of  the  Lower  Empire,  ex- 
cepting for  the  benefit  of  neighbors  and  fellow  owners.^  Our 
ancient  law,  on  the  contrary,  contains  a  great  number  of  repur- 
chases:^ 1st,  repurchasing  by  the  neighbors  or  by  the  citizens  for 
their  mutual  benefit;  ^  2d,  reijurchasing  by  a  community,  for  con- 

^  Like  the  "adjectio"  it  is  one  of  the  measures  taken  for  assuring  a  collec- 
tion of  taxes:  "Cod.  Just.,"  4,  52,  3;  "Epist."  oi Symmaque,  IX,  21;  of  Sidoine 
Appolinaire,  IV,  24;  V,  3;  "Cod.  Theod.,"  3,  1,  6  (in  391);  {Valent.,  Theod.  and 
Arc);  Godefroy,  ed.  Ritter,  I,  286;  "Cod.  Just.,"  4,  38,  14;  cf.  11,  56,  1;  10,  19, 
8,  and  "Cod.  Theod.,"  11,  24,  6,  1;  "Nov.  Just.,"  120,  1.  See  especially  the 
"Nov."  of  Romain  Lecapene,  922,  in  Zach.,  "Jus.  Grseco-Rom.,"  Ill,  234; 
cf.  "Nov.,"  114  of  Leo  (order:  relatives,  joint-owners,  neighbors).  As  to  the 
Byzantine  "protimesis,"  cf.  Zacharice  de  Lingenthal,  "Gesch.  de  Griech.  Rom. 
R.,"  1877,  §  50;  Mortreuil,  "Hist,  du  Dr.  Byz.,"  1844;  Platon,  "Le  Socialisme 
en  Grece,"  1895;  "  La  Democratie  et  le  Reg.  fiscal  a  Rome  et  a  Athenes,"  1899; 
Monnier,  "N.  R.  H.,"  1892,  p.  654.  The  "Const.  Sancimus,"  which  is  ordi- 
narily attributed  to  Frederick  II,  and  which  is  a  private  work  according  to 
others  {Briinneck),  is  scarcely  more  than  a  translation  of  the  "Novella"  of 
Rumain  Lecapene.  It  is  ordinarily  found  in  the  old  editions  of  the  "Libri 
Feudorum."  Cf.  Monnier,  "N.  R.  H.,"  1896,  p.  651  (bibl.);  A.  del  Vecchio, 
"Legisl.  di  Federico  II,"  p.  104.  Sicilian  Customs:  see  La  Mantia,  "Storia  d. 
Legisl.  Sic,"  1858,  and  especially  "Consuet.  e  Leggi  s.  la  Protimisi,"  1895; 
Giuffrida,  "Genesi  d.  Consuetud.  di  Sicilia,"  1901.  At  Rome,  the  "pactum 
protimeseos"  which  was  joined  to  a  sale  merely  conferred  a  personal  right; 
but  the  Byzantine  "protimesis"  seems  already  to  give  a  real  right:  Tamassia, 
op.  cit.  (Italian  Statutes);  Lattes,  p.  269.  When  an  owner  wished  to  sell  his 
land  a  neighbor  was  preferred  to  another  grantee  (who  paid  the  same  price) ; 
this  advantage  was  the  just  compensation  for  the  charge  of  the  "adjectio"; 
the  State  could,  in  fact,  arbitrarily  confer  the  "agri  steriles  et  deserti"  upon 
the  neighboring  owner,  charging  him  with  a  tax.  But,  although  the  "proti- 
mesis" is  thus  connected  with  the  financial  system  of  the  Lower  Empire,  it 
rnay  have  had  its  remote  origin  in  the  general  ownership  of  the  family  or  the 
village.  _  The  State  would  thus  have  only  sanctioned  a  popular  institution  in 
its  own  interest. 

2  Twenty-five  according  to  Merlin,  "R^p.,"  5th  ed.  Let  us  mention  the 
repurchase  of  bequeathed  silver  plate  (Declaration  of  1689),  of  domestic  ani- 
mals {Ldbourt,  VI,  1:  for  the  benefit  of  the  keeper  of  the  animals  when  the 
owner  sells  one  or  several  head),  of  retaking  (for  the  benefit  of  the  man  who 
has  the  seisin,  allowing  him  to  take  back  his  movables  which  have  been  given 
to  a  third  party  by  a  judgment).  These  three  repurchases  are  contrary  to  the 
principle,  "Movables  are  not  affected  by  repurchase "  ("Paris,"  144),  which 
is  explained  by  what  has  been  previously  said  on  the  subject  of  the  ownership 
of  movables;  the  repurchase  of  reconsoUdation  (for  the  benefit  of  the  mere 
owner  against  a  third  party  to  whom  the  usufructuary  has  granted  his  right) ; 
the  repurchase  of  rents  or  of  quit-rents  (for  the  benefit  of  the  holder  when 
the  creditor  grants  his  rent).  Britz,  p.  708,  mentions  a  popular  repurchase 
given  to  everybody  against  people  in  mortmain:  "Liige,"  16,  28.  Disposses- 
sion for  reasons  of  public  utility  is  qualified  as  a  repurchase  of  public  utility: 
so  Guyot,  in  Alsace,  a  repurchase  against  the  Jews  (from  1747)  to  prevent 
them  from  acquiring  too  great  a  number  of  houses  (abolished  Sept.  27- 
Nov.  13,  1791). 

'  They  also  say  repurchase  of  habitation  or  premises.  Cf.  in  German  law 
"Marklosung,"  a  repurcha.se  for  the  benefit  of  the  inhabitants  of  the  march; 
"Genossenlosung,"  a  repurchase  for  the  benefit  of  the  inhabitants  of  the 
commune;  "Fiirnossenrecht,"  "Nachbarlosung,"  for  the  benefit  of  the  neigh- 
bors: Heusler,  II,  61;  Chaisemartin,  "Prov.,"  p.  213.  Our  old  authors  cling  to 
the  laws  of  the  Lower  Empire:  the  1,  6,  "Cod.  Th6od.,"  3,  1  ("Dudum"), 
figures  in  the  "Brev.  d'AIaric,"  "Petrus,"  I,  19.    From  this  passage  we  can, 

427 


§  335]  OWNERSHIP    AND   REAL   RIGHTS  [Chap.  II 

venience  or  of  a  joint  possession  for  the  benefit  of  joint  owners;^ 
3(1,  seigniorial  repurchasing,  for  the  benefit  of  the  lord  {feudal  for 
fiefs,  copyhold  for  copyholds) ;  ^  4th,  repurchasing  by  a  person  of 
the  same  lineage,  for  the  benefit  of  the  relatives  or  descendants;  * 
5th,  repurchasing  by  agreement,  for  the  benefit  of  the  vendor,  who 
reserves  it  for  himself  by  a  clause  of  the  deed  of  sale."^    Repurchas- 

dcduce  that  the  repurchase  by  neighbors  is  rather  connected  with  agrarian 
communities  of  old  Germania,  just  as  the  repurchase  by  a  person  of  the  same  hne- 
age  is  connected  with  the  formation  of  the  German  family.  The  "vicini"  can 
oppose  the  setting  up  of  a  foreigner,  according  to  the  "L.  Sal.,"  45,  "demiar."; 
they  inherit  from  one  another  if  they  have  no  sons,  before  the  time  of  Chilperic. 
CJ.  Geffcken,  "L.  Sal.,"  Table,  see  "Villa,"  "Vicinus";  post,  "Inheritances"; 
Engleman,  "De  Retractu  locali,"  1776;  Grimm,  "R.  A.,"  531;  bibl.  in  Stobbe, 
§  89;  Schroeder,  204,  324  et  seq.  The  neighbor  of  the  South  ("vezi,"  meaning 
a  member  of  the  "  veziau"  or  the  community;  cf.  Spain,  "  vecino")  corresponds 
to  the  citizen  of  the  North:  DuCange,  see  "Vicinus";  Cadier,  "EtatsdeBearn," 
p.  91.  As  to  the  "vicinatico"  at  Cannobio,  cf.  Lnttes,  "Dir.  Consuet.,"  1899, 
p.  153.  Does  the  owner  of  a  piece  of  land  adjoining  the  one  which  is  alienated 
have  the  right  of  the  repurchase,  assuming  that  he  is  not  a  fellow  citizen  of 
the  man  alienating  it?  It  would  seem  not,  the  practice  in  this  respect  differing 
from  that  under  the  Lower  Empire  in  Germany.  —  The  repurchase  of  citizen- 
ship is  sometimes  applied  to  movable  property  and  to  provisions:  "Bayonne," 
V,  43  (ships);  Labourt,  VI,  8;  "Bergerac,"  106.  —  Rights  of  "treizain"  (Nimes), 
"abzue,"  emigration,  florin  of  succession,  etc.,  collected  by  the  lords  or  the 
towns  when  the  possessions  of  a  citizen  or  a  pei-son  domiciled  therein  passed  to 
an  alien  through  inheritance  or  otherwise.  Law  of  July  19,  1790.  —  "Bay- 
onne," V,  51:  repurchase  of  a  house  sold  to  be  demoUshed.  —  Italy:  cf.  Ta- 
massia,  p.  256,  260,  etc.;  Dambeza,  "These,"  1886  (agrarian  communities  in 
Algeria). 

^  Formerly,  joint  owners  were  relatives  or  fellow  citizens,  and  the  repur- 
chase by  a  person  of  the  same  lineage  or  the  repurchase  by  neighbors  were  the 
only  ones  which  should  have  been  used.  The  repurchase  of  joint  possession 
ended  by  becoming  separated  from  the  preceding  ones  and  by  acquiring  an 
existence  of  its  own  in  certain  of  the  Customs,  perhaps  owing  to  the  influence 
of  the  Roman  laws.  Originally,  it  was  considered  as  being  for  the  purpose  of 
re-establishing  the  unity  of  the  domain;  later  on  it  was  regarded  rather  as  a 
means  of  facilitating  the  termination  of  joint  possession.  Cf.  the  Roman 
laws  cited  in  the  preceding  note:  Loysel,  422  (bibl.).  "Ass.  de  Jerus.,"  ed. 
B.,  II,  260;  "Bayonne,"  5,  20;  "Dax,"  10,  17;  "Berghes,"  9,  9,  etc.;  "Lille," 
7,  1 :  "  r.  de  frareusete  "  (cf.  Ragueau)  identical  with  the  repurchase  of  joint  pos- 
session; repurchase  of  "escleche"  (disappearance  or  dismemberment),  right  for 
the  coparcener  to  take  back  the  divided  share  which  has  been  separated  from 
the  common  fund  and  alienated  to  a  third  party.  In  German  law:  "Theillo- 
sung,"  "Gespilderecht,"  "Getheilenzugrecht." 

2  Or  retained:  Loysel,  423;  see  Ragueau.  The  lord  retains  and  restores  to 
his  tablets  the  fief  which  has  been  alienated.  In  countries  of  written  law  the 
seigniorial  repurchase  is  called  "preference"  (Guyot,  see  "R6p.")  and  presents 
some  pecuharities.  —  Ducal  repurchase  ("duches-paries"),  see  Guyot. — 
Loysel,  432:  the  king  has  no  right  to  the  seigniorial  repurchase;  also  it  cannot 
be  made  use  of  against  him.  Ferrihre,  see  "Retr.  f^od.":  the  king  can  repur- 
chase fiefs  held  immediately  of  the  crown,  but  not  those  held  under  a  mesne 
lord;  otherwise,  he  would  end  by  having  all  the  fiefs  in  the  kingdom.  —  Cf.  as 
to  the  seigniorial  repurchase,  treatises  on  fiefs  and  on  feudal  rights,  Loysel,  424. 

'  "Retractus  gontilicius,     "consanguinitatis,"  "Erblosung,"  etc. 

*  Pothier,  no.  532,  distinctions:  1st.  The  redemption,  a  clause  by  means  of 
which  the  seller  reserves  to  himself  the  power  of  buying  back  the  thing  sold 
and  the  buyer  binds  himself  to  give  it  back  to  the  seller.  2d.  The  repurchase  by 
agreement,  by  virtue  of  which  the  seller  and  his  successors  have  the  right  every 

428 


Topic  S]        FREEDOM   OF   ALIENATING  —  REPURCHASING  [§  336 

ing  by  a  person  of  the  same  lineage,  which  is  the  most  practical 
and  the  most  widespread  of  these,  will  be  examined  below  as  a 
type  to  which  the  others  are  similar  in  their  essential  character- 
istics. In  case  of  a  conflict  between  the  different  kinds  of  repur- 
chasing, in  the  later  stages  of  the  law,  sometimes  the  repurchasing 
of  the  neighbors  and  of  the  community  was  given  preference  over 
the  repurchasing  by  persons  of  the  same  lineage,  and  the  repur- 
chasing by  persons  of  the  same  lineage  was  always  given  preference 
over  the  seigniorial  repurchasing.^  The  repurchasing  by  agreement 
took  precedence  over  all  the  others. 

§  336.  Disadvantages  of  Repurchases  and  Their  Suppression. 
—  With  the  decadence  of  feudalism  and  the  disintegration  of  the 
family  and  agrarian  communities,  these  repurchases  had  lost  their 
reason  for  existing.^  There  does  not  seem  to  have  been  any  thought 
of  making  use  of  them  in  the  interests  of  an  advantageous  culti- 
vation of  the  land  by  reconstructing  domains  which  were  too 
much  cut  up  for  their  development  to  be  advantageously  carried 
on.  Certain  of  them  ceased  to  be  made  use  of;  those  which  re- 
mained were  made  subject  to  conditions  which  became  more  and 
more  severe.  Only  an  impediment  to  the  circulation  of  property 
came  to  be  seen  in  them,  beginning  with  the  development  of  pub- 
lic wealth.  The  vendee  who  was  liable  to  be  evicted  without  any 
certainty  of  the  morrow  hesitated  about  concluding  a  bargain  the 
whole  benefit  of  which,  if  there  were  any,  would  be  for  others. 
Struck  with  these  disadvantages,  and  desirous  of  strengthening 

time  the  inheritance  is  sold,  whether  by  the  buyer  or  by  his  successors,  to  be 
preferred  over  all  buyers  and  to  be  allowed  to  take  their  bargain  off  their 
hands.    Cf.  Tiraqueau,  op.  cit.,  and  Merlin,  see  "Faculte  de  Rachat." 

1  A  curious  trace,  one  might  think,  of  the  order  in  which  the  various  forms 
of  ownership  had  succeeded  one  another;  but  the  fact  is  neither  sufficiently 
old  nor  sufficiently  general  to  allow  of  one's  drawing  this  conclusion:  "L. 
Feud.,"  II,  9,  1;  Loysel,  425;  Beaumanoir,  51,  20;  "Olim,"  I,  6G6;  "Ass.  de 
Jerus.,"  loc.  cit.  (a  relative  preferred  to  a  neighbor).  Chaisemartin,  "Prov.," 
p.  213:  a  coparcener  is  preferred  to  a  person  of  the  same  lineage.  Heiisler,  II, 
63:  relatives,  fellow  members  of  a  community,  "Hoflcute";  or  else  at  a  more 
recent  period:  accusation  and,  in  case  of  an  action  at  the  same  time,  drawing 
of  lots.  —  Cf.  Tamassia,  op.  cit.,  p.  260,  etc.;  Code  of  Montenegro,  Art.  49. 

^  Boutaric,  I,  1  (p.  3):  "hateful  rights."  Tiraqueau  sets  forth  at  length  the 
advantages  and  disadvantages  of  the  repurchase.  Domat  is  unfavorable  to  it. 
Auzanet  (preface  to  volume  on  the  Repurchase,  "Cout.  de  Paris")  maintains 
that  it  gives  rise  to  an  infinite  number  of  frauds,  of  perjuries  and  actions,  without 
taking  into  account  the  fact  that  it  is  contrary  to  good  faith  and  freedom  of 
trade.  Montesquieu  is  one  of  the  few  defenders  of  that  which  he  calls  "a  mys- 
tery of  the  ancient  law."  Cf.  also  Pothier.  In  the  repurchase  by  a  {lerson  of 
the  same  lineage,  the  one  most  widely  used,  is  seen  one  of  the  moans  of  pre- 
serving the  "splendor  of  the  name."  This  would  seem  like  one  of  those  arti- 
ficial proceedings  made  use  of  as  a  matter  of  policy  to  check  the  disintegration 
of  the  old  families. 

429 


§  336]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

the  ownership  of  the  individual,  the  Revolution  abolished  these 
repurchases,^  The  seigniorial  repurchase  was  the  first  to  be  af- 
fected, and  it  disappeared  with  the  feudal  system,^  The  others 
were  then  suppressed  (June.  13,  1790)  because  they  were  liable  to 
hinder  the  sale  of  the  national  possessions.^  A  short  while  after 
this,  July  17,  1790,  the  Constituent  Assembly  completed  its  work 
by  abolishing  the  repurchase  by  a  person  of  the  same  lineage.^ 
A  law  of  May  13,  1792,  re-enacted  in  very  general  terms  the 
proscription  of  every  sort  of  repurchase.^ 

§  337.  The  Repurchases  of  the  Civil  Code  and  Actions  of 
Subrogation.  —  Repurchases,  properly  so  called,  were  similar 
to,  without  being  confused  with,  certain  cases  of  personal  subro- 
gation, such  as  the  subrogation  of  the  acknowledged  debtor  to  the 
assignee  of  a  contested  right.^  This  was  scarcely  designated  by 
the  name  of  the  repurchase;  because  of  this  circumstance  and  their 
Roman  origin,  they  survived  the  proscription  decreed  by  the  Revo- 
lution. This  accounts  for  the  presence  in  the  Civil  Code  of  a  cer- 
tain number  of  repurchases,  the  repurchase  of  a  contested  right,'' 

*  Rescission  because  of  inquiry  was  done  away  with  for  the  same  reasons: 
Fenet,  "Trav.  prep.,"  I,  67. 

2  Law  of  March  15,  1790,  art.  10  (February  24). 

3  Sagnac,  "L6gisl.  Civ.  de  la  Revol.,"  p.  202;  Viollet,  p.  560. 

*  A  few  Customs  had  already  done  away  with  it:  "Artois"  (1741),  14; 
"Arras,"  1;  "Bapaume,"  9;  "Douai,"  3,  4;  "Cambrai,"  II,  13;  "Moniteur" 
of  June  14  and  July  18,  1790. 

^  "  Code  Civil  interm.,"  Table,  see  "Retrait."  Abolishing  of  the  "  suppres- 
sion of  the  decree"  practised  in  Languedoc  against  the  judgment  creditor  fol- 
lowing a  forced  sale  of  an  immovable  (August  25,  1792);  see  Ferriere,  Guyot. 
Cf.  "Norm.,"  471.  Abolition  of  the  repurchase  by  the  eldest  sons  in  Nor- 
mandy and  of  Art.  332  of  the  "  Cout.  de  Norm."  (Sept.  2  and  30,  1793).  The 
repurchase  by  agreement  is  itself  proliibited:  Fenet,  I,  p.  25. 

*  Repurchases  properly  so  called  are  the  manifestation  of  a  latent  right  of 
ownership,  whereas  subrogation,  which  is  here  in  question,  deals  rather  with 
claims.  The  former  are  connected  with  the  system  of  the  ownership  of  land; 
subrogation  is  to  be  accounted  for  by  entirely  different  reasons  (the  repres- 
sion of  speculation  and  the  spirit  of  chicanery).  In  cases  of  the  assignment  of 
claims  in  litigation  the  old  debt  subsisted  (with  its  guarantees),  but  it  was 
reduced;  if  the  man  giving  up  the  claim  had  been  a  repurchaser,  the  indem- 
nity due  from  him  to  the  person  selling  the  claim  (assignee)  would  be  a  new 
debt  without  guarantees. 

^  Art.  1699  et  seq. ;  Merlin,  see  "Droits  litigieux";  Alb.  Desjardins,  "R. 
Prat.,"  1868,  25,  138;  1870,  29,  451,  and  30,  225  (bibl.).  In  this  matter  our 
old  law  merely  applied  or  extended  the  Roman  laws  which  were  already  well 
known:  "Cod.  Just.,"  2,  13  ("ne  Hciat  potentior"),  2;  8,  36  ("de  litigios.") 
3  and  5;  "Nov.,"  72,  5  (guardians.  Civil  Code,  450);  "Cod.  Just.,"  4,  35 
("Mandati"),  22  and  23  (celebrated  Constitutions  "Per  Diversas,"  and  "Ab 
Anastasio").  No  doubt,  they  had  never  entirely  ceased  to  be  in  force;  as  to 
the  first  of  these  propositions,  it  follows  at  least  from  the  following  texts: 
"Edict.  Theodor.,"  43,  44;  "L.  Rom.  Visig.,"  "Cod.  Th6od.,"  2,  14;  Papien, 
43;  "Burg.,"  22,  55;  "L.  Visig.  Reccesv.,"  2,  3,  8;  cf.  5,  4,  20,  and  "Cod. 
Eur.,"  312;  "Petrus,"  IV,  20.  —  (A)  The  Ordinances  of  1356  and  1585.  Pro- 
hibition of  assigning  debts  to  persons  who  were  more  powerful,  for  fear  that 

430 


Topic  8]        FREEDOM   OF   ALIENATING  —  REPURCIL\SING  [§  337 

the  repurchase  of  an  inheritance,^  the  repurchase  of  a  joint  posses- 

they  might  dictate  the  sentence  of  the  judge,  or  to  privileged  persons  (for 
example,  scholars)  in  order  that  pleaders  should  not  be  deprived  of  their  nat- 
ural judges,  and  this  under  penalty  of  an  annulment  of  the  assignment,  of  a 
forfeiture  by  the  assignor,  and  of  an  arbitrary  fine  imposed  upon  the  assignee 
besides  damages:  Le  Prestre,  "Q.  Not.,"  I,  93,  37.  —  (B)  Ordinance  of  1521, 
23:  Prohibition  for  judges  to  acquire  any  property  with  respect  to  which  an 
action  was  pending  within  their  jurisdiction,  and  Ordinance  of  January,  1560, 
54,  forbidding  advocates  or  solicitors  from  acquiring  causes  of  action  which 
they  are  conducting. — :(C)  Michaud,  94:  for  judges,  advocates,  etc.,  to  acquire 
any  debt  in  litigation  (this  was  not  registered  by  some  of  the  Parliaments). 
Regulating  Order  of  the  Parhament  of  Paris,  July  10,  1665,  Art.  13.  These 
two  prohibitions  are  confounded,  Civil  Code,  1597.  Cf.  "Pact  de  Quota 
Litis,"  see  Ferriere  (bibl.).  —  (D)  From  the  Laws  "Per  Diversas"  and  "Ab 
Anastasio,"  which  were  enacted  out  of  hatred  of  speculators  who  have  claims 
assigned  to  them  with  a  fraudulent  object,  our  old  jurisprudence  drew  an  in- 
stitution which  Pothier  ("Vente,"  588)  is  about  the  only  one  to  call  "a  kind 
of  repurchase."  The  Parhaments  of  Toulouse  and  Grenoble  applied  these 
laws  to  the  assignment  of  claims  in  litigation  and  other  claims.  Cf.  "retrait 
debita"  in  Flanders.  See  Guyot.  Elsewhere,  Dumoulin's  interpretation, 
which  restricted  their  bearing  to  claims  in  litigation,  prevailed:  "Usur.," 
q.  62,  no.  413;  "Arr.  de  la  Ch.  del'  Edit"  May  9,  1605;  Brillon,  "Diet,  des 
Arrets,"  see  "Litige";  Brodeau,  on  Louet,  "Cession  de  Dr.  litig.";  Pothier,  no. 
691.  The  assignment  of  real  rights  in  litigation  was  treated  similarly  to  that 
of  claims.  Order  of  1578,  1615,  no  doubt  owing  to  the  influence  of  the  ordi- 
nances cited  above  (A  and  B);  they  did  not  distinguish  between  real  rights 
and  claims ;  moreover,  when  only  the  litigious  character  of  the  right  was  taken 
into  account,  the  likening  of  them  was  natural.  This  would  lead  to  the  idea 
of  subrogation:  in  Rome  the  claim  which  had  been  assigned  was  cut  down  to 
the  price  of  the  assignment;  now,  a  real  right,  an  ownership,  or  the  usufruct 
of  a  piece  of  land,  could  not  be  cut  down  in  this  way;  the  saying  that  the 
assignor  should  be  subrogated  to  the  assignee  and,  a  curious  thing,  against  him- 
self, was  invented:  Charondas,  "Pand.,"  II,  29.  There  was  always  a  discus- 
sion as  to  the  conditions  required  to  make  the  right  one  in  litigation,  —  being 
contested  in  a  suit,  merely  a  demand  (Auth.  "litigiosa"),  or  merel}^  an  appre- 
hension of  litigation?  Civil  Code,  1700.  The  exceptions  to  the  rule  admitted 
by  Anastasius  are  to  be  found  in  Pothier,  594,  and  in  the  Civil  Code,  1701.  It 
was  necessary  first  of  all  for  the  man  who  had  given  up  a  claim  to  have  letters 
of  subrogation  in  order  to  be  substituted  for  the  buyer  on  pajdng  him  the  price 
of  the  assignment  (which  was  ordinarily  less  than  the  amount  of  the  claim) : 
Charondas,  "Pand.,"  II,  29.  They  were  no  longer  demanded  in  the  eighteenth 
century:  R.  de  Lacombe,  see  "Transport."  According  to  some  authors  at  the 
end  of  the  eighteenth  century,  such  as  Boucher  d'Argis,  the  litigious  repur- 
chase must  have  been  no  longer  in  use ;  this  is  not  at  all  likely  because  Pothier 
speaks  of  it  and  it  is  found  once  more  under  the  Revolution;  perhaps  what 
they  meant  to  say,  as  Imbert,  see  "Enchir.,"  was  that  the  Roman  laws  are 
abrogated  in  this  sense,  that  the  transfer  of  litigious  rights  alone  (and  not 
the  assignment  of  any  sort  of  claim)  is  subject  to  the  repurchase.  The  Court 
of  Appeal,  8  Frim.,  year  XII,  declares  that  this  has  nothing  in  common  with 
repurchases:  Cf.  Sirey,  1828-30,  I,  20  and  59. 

1  Art.  841.  —  Under  the  name  of  repurchase  by  a  co-heir  or  a  repurchase  per- 
taining to  succession.  Merlin  provides  for  two  cases:  1st.  A  co-heir  acquires 
some  right  relative  to  the  succession;  before  the  partition  of  the  latter  another 
co-heir  may  demand  that  this  acquisition  be  united  to  the  mass  of  the  in- 
heritance: "Dig.  fam.  ere,"  19;  "de  leg.,"  I,  89,  4.  — 2d.  A  co-heir  gives  up 
his  rights  of  inheritance  to  a  stranger  to  the  succession:  every  co-heir  can 
substitute  himself  for  the  latter.  Cf.  "Droits  Successifs."  Art.  841  of  the 
Civil  Code  has  sanctioned  this  right,  which  was  already  generally  received 
in  our  old  jurisprudence.  Cf.  especially  Alb.  Desjardins,  "R.  Prat.,"  1870, 
497.    It  is  only  dealt  with  in  a  small  number  of  Customs  ("Alost,"  20,  5; 

431 


§  337]  OWNERSHIP    AND    REAL   RIGHTS  [Chap.  II 

sion}  The  framers  of  the  Code,  moreover,  avoided  those  expres- 
sions which  showed  the  effects  of  the  old  system,  and  repurchases 
only  had  a  place  in  their  work  incognito.  It  remained  for  the  School 
to  revive  this  archaic  nomenclature  at  a  time  when  it  no  longer  had 
anything  suspicious  about  it.     In  the  matter  of  legislation  the 

"Bruges,"  20,  3;  "Namur,"  69,  70;  Britz,  p.  700).  But  the  Parliament  of 
Paris  admitted  of  it  by  means  of  its  Orders  of  1521,  1578,  1595,  and  especially 
1613  (upon  the  speech  of  the  Advocate-General  Servin:  "Actions,"  I,  III,  no. 
114,  ed.  1639,  p.  880).  Our  old  authors  connected  it  with  the  litigious  re- 
purchase, although  rights  of  inheritance  are  not  necessarily  contested;  or  else 
it  is  justified  because  of  a  desire  to  prevent  strangers  from  thrusting  them- 
selves into  the  secrets  of  the  family  and  increasing  the  difficulties  of  parti- 
tion: Charondas,  "Pand.,"  c.  29,  Servin,  loc.  cit.;  Lebrun,  "Successions,"  4.2, 
3,  66.  As  we  look  upon  it,  the  repurchase  pertaining  to  succession  was  created 
instinctively  by  practice  as  an  extension  of  the  repurchase  by  a  person  of  the 
same  lineage  and  of  the  repurchase  by  joint  possession;  co-heirs  who  were  not 
of  the  same  lineage  benefited  by  it,  and  it  was  not  applied  to  any  special  piece 
of  immovable  property,  but  to  a  collection  of  rights.  Although  it  is  called  a 
repurchase  by  Denisart  and  Merlin,  we  see  in  it  rather  a  subrogation,  and 
formerly  letters  from  the  chancery  were  required  in  order  to  obtain  it,  "  Nouv." 
Denisart,  see  "Cession  de  Dr.  success."  By  this  means  it  was  found  not  to 
be  affected  by  the  general  prohibition  against  repurchases  pronounced  by  the 
Revolutionary  laws.  The  Convention,  it  is  true,  annulled  on  the  19th  Flor., 
year  II,  a  judgment  of  the  Tribunal  of  Breteuil  which  authorized  heirs  to  exer- 
cise the  repurchase  pertaining  to  succession ;  but  this  decision  was  not  promul- 
gated as  law,  and  the  Court  of  Appeal  recognized  the  fact  that  this  repurchase 
was  not  abolished  (25th  Vend.,  year  V;  11th  Germ.,  year  X;  8th  Frim.,  year  XII). 
^  Art.  1408:  the  husband  acquires  partly  or  wholly  an  immovable  of  which 
his  wife  is  jointly  with  him  a  part  owner;  when  the  community  is  dissolved 
she  has  a  choice  between  giving  up  the  property  to  the  community  or  with- 
drawing it.  When  she  chooses  the  latter  course  it  is  said  that  she  exercises 
the  repurchase  of  joint  possession;  but  this  expression,  which  is  used  by  Toul- 
lier  (wrongly  or  rightly?)  was  not  made  use  of  with  respect  to  this  case  in  our 
old  law;  as  to  the  hypothesis  provided  for  by  Art.  1408,  our  old  authors  are 
not  very  explicit.  —  In  countries  of  written  law  the  "  1.,"  78,  4,  D.,  "  de  J.  dot.," 
23,  3,  was  applied,  which  attributed  to  the  wife  the  undivided  portion  of  the 
land  acquired  by  the  husband  by  way  of  marriage  portion  (because  this  is  an 
exercise  of  the  marriage  portion).  Roussilhe,  "Dot,"  §  554  et  seq.,  seems  to 
say  that  she  has  the  power,  but  is  not  compelled  to  choose  this  course:  "she 
can  compel  the  heirs  of  the  husband  to  give  up  to  her  all  of  the  land,  .  .  .  the 
wife  or  her  heirs  having  a  right  to  withhold  the  aforesaid  acquisitions"  Cf.  to 
the  contrary,  Rouss.  de  Lacombe,  "Rec.  de  Jurispr.  Civile,"  see  "Dot,"  p.  234. 
In  countries  of  Customs  the  Roman  rule  was  too  much  in  harmony  with  the 
institution  of  the  repurchase  by  a  person  of  the  same  lineage,  and  of  the  re- 
purchase of  half-funds  and  the  repurchase  of  community,  not  to  be  adapted 
to  the  community  system;  it  would  have  been  created  if  it  had  been  neces- 
sary. But  some  decided  that  the  wife  could  not  refuse  the  acquisition,  even 
if  it  is  made  under  disadvantageous  conditions:  Lebrun,  " Communaute,"  I, 
5,  2,  3,  12;  Ferriere,  on  "Paris,"  220  (III,  1,  13).  Cochin,  "GEuvres/'  V,  231 
(ed.  1765),  who  is  cited  for  this  proposition,  assuming  that  the  wife  is  the 
only  judgment  creditor.  Others  authorized  her  to  leave  the  property  in  the 
hands  of  the  community,  "quia  marito  non  licet  onerare  propria  uxoris"; 
Bourjon,  "Dr.  Commun.,"  Ill,  10,  2,  10,  2,  2  (I,  537,  ed.  1770),  when  she  re- 
nounces; Valin,  on  "La  Rochelle,"  I,  p.  493,  or  when  she  accepts.  Cf.  Pothier, 
"  Comm.,"  no.  151.  These  latter  authors  no  doubt  set  forth  the  solution  which 
was  received  in  practice,  and  the  framers  of  the  Civil  Code  merely  sanctioned 
it,  as  is  said  by  Tronchet:  Fenet  XIII,  495,  560,  607.  The  partisans  of  the 
contrary  opinion  followed  the  letter  of  the  Roman  laws  too  slavishly. 

432 


Topic  8]        FREEDOM   OF   ALIENATING  —  REPURCHASING  [§  338 

merit  of  these  new  kinds  of  repurchase  has  been  very  much  dis- 
cussed. However,  they  are  of  very  Httle  importance.  They  cannot 
be  compared  with  the  repurchases  of  the  old  system.  They  would 
not  even  furnish  any  connecting  link  with  a  system  of  the  reconstitu- 
tion  of  landed  property  such  as  exists  in  Germany  in  our  time,  and 
such  as  existed  in  the  past,  for  example,  in  Italy  ("ingrossazioni").^ 
§  338.  The  Repurchasing  by  a  Person  of  the  Same  Lineage  ^  is 
related  to  the  family  joint  ownership  of  the  old  Germanic  law.^ 
In  a  number  of  the  old  legislations,  where  the  family  is  organized 
upon  the  same  foundations,  there  may  be  noticed  a  tendency  to 
make  the  house  and  the  lands  which  are  the  seat  of  a  group  of  rela- 
tives inalienable;  these  possessions  belong  rather  to  the  family 

*  Where  it  seems  to  be  connected  with  the  "adjeetivo"  of  the  Lower  Em- 
pire. It  is  not  only  sought,  as  it  was  formerly,  to  compel  owners  of  neigh- 
boring lands  to  cultivate  abandoned  lands  in  the  interests  of  the  Treasurer, 
because  they  were  unproductive;  but,  in  the  interests  of  agriculture,  "justa 
prsedia"  are  formed  out  of  little  parcels,  and  it  is  sought  to  "drizare  terras  ac 
fossata";  or  even  that  attraction  which  the  large  domain  exercises  over  ad- 
joining parcels  is  legally  sanctioned,  and  the  large  landowner  is  given  a  right 
to  increase  his  possessions.  This  system  was  devised  in  order  to  remedy  the 
evil  often  pointed  out  by  the  economists  of  the  excessive  parceling  of  lands, 
but  it  already  had  as  its  adversaries  the  partisans  of  concentrated  cultivation: 
"laudato  ingentia  rura,  exiguum  colito."  Statutes  since  the  end  of  the  twelfth 
century.  Customs  of  Northern  and  Central  Italy.  Terminology:  "retratto 
coattivo,"  "jus  congrui":  Tamassia,  op.  cit.  (bibl.);  Blondel,  "Popul.  rur.  d. 
TAUem.,"  p.  332;  Roscher,  p.  307. 

2  Other  names  for  the  "retractus  gentilitius":  "proismet^,"  proximity; 
"premesse,"  etc.,  —  that  is  to  say,  a  right  of  the  nearest  relative;  "rescousse" 
(taking  back),  buying  back,  retaining;  "torn"  ("F.  de  Beam"),  that  is  to  say, 
return;  "chalonge"  ("calumnia"),  reclaiming.  Cf.  Ragueau,  Spanish  law: 
"tanteo"  (that  is  to  say,  "tanto  por  tanto,"  the  relative  is  preferred).  Ger- 
man law:  "Naherrecht,    "Erblosung,"  "Zugrecht." 

^  Other  systems  (to-day  abandoned).  —  1st.  Hebraic  origin,  "Levit.,"  xxv, 
"Ruth,"  xxvii;  "Jeremiah,"  xxxii,  15;  Dareste,  "Etudes,"  p.  32;  Salvador, 
"Inst,  de  Moise/'  1,220;  RabUnowicz,  "L<5gisl.  Civ.  du  Talmud,"  IV  and  V. 
The  Jubilee,  winch  recurred  every  fifty  years,  dissolved  of  absolute  right  all 
sales  of  lands  and  caused  them  to  return  to  their  former  owners,  without  its 
being  necessary  to  pay  any  indemnity  to  the  man  who  had  held  them.  —  2d. 
Celtic  origin,  Pithou,  on  "Troyes,"  114;  La  Fcrriere,  "Hist,  du  Dr.  Fr.,"  II, 
100. —  3d.  Ro7nan  origin,  "L.,"  14  "Cod.  Just.,"  "de  contr.  emt.,"  4,  38; 
ibid.,  4,  66,  3.  Cf.  "L.,"  14,  D.,  "de  reb.  auct.  jud.";  Grimaudet,  p.  3;  Pas- 
quier,  "Inst.,"  loc.  cit.  —  4th,  Feudal  origin.  The  feudal  grants  were  often 
made  to  X  and  his  heirs;  in  case  of  a  sale  to  strangers  the  heir  had  a  right  to 
bring  back  the  fief  into  the  family:  Lauribre,  on  "Paris,"  II;  Montesquieu, 
"Esp.  des  Lois,"  5,  9.  Cf.  Jobb6  Duval,  p.  100.  —  But,  "a  priori,"  one  is 
bound  to  admit  that  the  feudal  system  must  have  been  hostile  to  the  repur- 
chase by  a  person  of  the  same  lineage,  for  it  was  created  in  the  interest  of  the 
lord  and  not  in  that  of  the  relatives  of  the  vassal.  Having  become  inheritable, 
fiefs  were  made  subject  to  the  repurchase  by  a  person  of  the  same  lineage, 
just  as  freeholds  were.  Moreover,  we  must  notice  that  the  repurchase  by  a 
person  of  the  same  lineage  exists  among  peoples  where  the  feudal  system 
did  not  take  root  (Slavs,  Kabyles),  and  that,  conversely,  it  has  met  with  re- 
sistance in  countries  of  written  law  in  the  very  midst  oi  feudalism:  Houard, 
"Anc.LoisdesFr.,"!,  256. 

433 


§  338]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

than  to  its  head,  and  the  latter  could  not  freely  dispose  of  them.^ 
It  is  in  this  same  spirit  that  the  law  of  the  barbarian  period  and 
the  Customary  law  place  the  power  of  alienating  immovables,  or, 
at  least,  ijersonal  belongings,^  under  a  number  of  restrictions.  We 
will  deal  elsewhere  with  freedom  of  alienating  by  will  and  freedom 
of  giving  "inter  vivos";  for  the  time  being  we  will  only  deal  with 
alienations  for  a  consideration.  They  seem  to  be  less  prejudicial 
to  the  family,  because  in  inheriting  the  alienor's  estate  the 
family  gets,  if  not  the  property  itself,  at  least  its  value.  But, 
according  to  the  old  ideas,  appropriation  of  the  property  for  the 
benefit  of  the  family  was  opposed  even  to  alienations  of  this  kind; 
it  was  destined  to  pass  from  one  relative  to  another,  and  no  one 
could  be  allowed  to  disturb  the  legal  sequence  of  inheritance.  An 
alienation  ran  the  risk  of  disorganizing  the  family,  of  bringing  in  a 
stranger,  —  that  is  to  say,  an  enemy  —  into  the  very  heart  of  its 
domain,  and  (putting  things  in  their  best  light)  causing  it  a  serious 
injury;  the  price  is  soon  dissipated,  without  taking  into  account 
the  fact  that  it  may  be  fictitious  and  merely  serve  to  disguise  a 
gift.    Though  less  injurious  than  sale,  even  an  exchange  is  sus- 

1  The  history  of  Naboth,  a  victim  of  his  affection  for  the  family  property, 
is  very  significant.  He  had  a  vine  near  the  palace  of  King  Ahab;  the  latter 
said  to  him,  "Give  me  thy  vine,  so  that  I  may  make  of  it  a  garden  of  herbs"; 
and  he  offered  to  pay  him  in  money,  or  else  to  give  him  a  better  one.  "May 
the  Lord  keep  me  from  giving  thee  the  heritage  of  my  fathers,"  replies  Na- 
both: "1  Kings,"  xxi,  1;  c/.  "Genesis,"  xxiii.  —  As  to  the  old  legislation,  cf. 
Dareste,  "Etudes,"  pp.  30,  60,  132,  139,  190,  etc.;  Post,  "Grundr.  d.  Ethnolog. 
Jurispr.,"  I,  201;  Hanoteau  and  Letourneux,  "Kabyl.,"  II,  401  ("chefaa"); 
Hamilton,  "The  Hedaya,"  1870,  p.  548;  Louchitzky,  "Propriety  commune  en 
Petite  Russie,"  1895;  Jobbe-Duval,  p.  66;  Bogisic,  "Code  Civil  du  Montenegro," 
etc.;  Beauchet,  p.  620. 

^  The  provisions  of  certain  of  the  barbarian  laws  might  have  led  us  to  be- 
lieve that  freedom  to  dispose  "inter  vivos"  was  admitted  on  principle  in  the 
old  Germanic  law.  For  example,  "Burg.,"  84;  "Bai.,"  15,  16,  17;  "Wisig.," 
V,  4.  But  these  laws  have  felt  the  effect  of  the  Roman  legislation.  As  to  the 
law  of  the  Thuringians,  54,  "Libero  homini  liceat  hereditatem  suam  cui 
voluerit  tradere,"  cf.  Richtojen,  "  M.  G.  H.,  L.  L.,"  V,  138.  This  text  recalls  the 
"L.  Sax.,"  61,  the  "Cap.,"  817,  6  (I,  121,  cf.  Ill),  certain  formulae,  for  ex- 
ample, "F.  Andec,"  58.  At  one  time  the  Roman  ideas  seem  to  set  to  one  side 
the  Germanic  law  {cf.  "L.  Wisig.,"  Formulae,  Statutes;  cf.  especially  "Cart, 
de  Beaulieu,"  "de  Sa\T[gny,"  "d'Ainey");  the  Capitularies  attempted  to  estab- 
lish a  freedom  of  disposing,  especially,  it  would  seem,  in  the  interests  of  the 
Church.  But  the  tenacity  of  the  resistance  offered  by  the  family  rights  can 
be  measured  by  the  care  with  which  the  framers  of  statutes  threatened  the 
heirs  with  the  spiritual  and  temporal  penalties  of  excommunication  and  dis- 
inheritance, in  case  they  did  not  respect  the  will  of  the  man  making  the  disposal. 
In  the  majority  of  the  Cartularies  we  soon  see  the  heirs  intervening  and  giving 
their  consent:  "Formules,"  ed.  Roziere,  nos.  267  et  seq.;  "Cart,  de  Cluny, 
no.  8  (several  vendors);  no.  434  (in  935:  relatives),  etc.;  "St.  Victor  de  Mar- 
seille," nos.  47,  65,  116,  etc.;  "St.-Bertin,"  no.  11  (in  685);  "St.-Pere  de 
Chartres,"  I,  p.  132,  164  (CCXX);  "Redon,"  etc. 

434 


Topic  S]        FREEDOM   OF   ALIENATING  —  REPURCHASING  [§  339 

plcious,  because  it  is  very  rare  for  it  to  be  carried  out  to  the  equal 
advantage  of  both  parties.  These  considerations  explain  how  it  is 
that  almost  as  much  repugnance  has  been  expressed  for  aliena- 
tions for  a  consideration  as  for  those  which  are  merely  gratuitous.^ 
At  first  they  were  not  authorized  excepting  with  the  consent  of 
the  relatives,  and  the  latter  were  free  to  refuse  their  consent  even 
although  they  had  no  reason  to  do  so.  The  owner,  who  could  not 
possibly  sell  the  land  because  of  their  opposition,  was  compelled 
in  case  of  need  to  impose  upon  them  the  alternative  of  either  pro- 
viding him  wdth  the  cost  of  sustenance  or  allowing  him  to  solicit 
this  kind  office  at  the  hands  of  a  stranger.  This  was  impera- 
tive, to  avoid  condemning  to  death  those  whom  age,  illness,  or 
many  other  accidents  prevented  from  providing  for  their  needs  by 
means  of  their  own  work.  It  is  true  that  a  first  blow  was  dealt 
by  this  means  to  the  rights  of  the  relatives;  the  offer  which  was 
made  them,  and  the  right  of  pre-emption  which  they  enjoyed  by 
this  means,  were  not  equivalent  to  the  power  of  giving  their  con- 
sent to  an  alienation,  because  the  exercise  of  this  latter  power  did 
not  subject  them  to  any  outlay,  whereas  they  could  not  practise 
pre-emption  if  they  had  not  the  necessary  sum  wherewith  to  pay 
the  merchantable  value  of  the  property.  From  this  restriction 
developed  others.  In  order  to  simplify  matters,  the  prelimi- 
nary of  an  offer  to  the  relatives  was  done  away  with;  it  merely 
bothered  the  parties,  resulted  in  delays,  and  might  be  the  cause 
of  losing  an  advantageous  sale.  It  was  thought  that  there  would 
not  be  any  great  disadvantage  in  leaving  the  owner  free  to  alien- 
ate his  real  property,  on  condition  that  he  should  acknowledge 
the  rights  of  his  relatives  to  take  back  this  property  within  a  speci- 
fied time.  The  heirs  thus  found  themselves  face  to  face  with  an 
accomplished  fact.  They  would  scarcely  resolve  to  assail  it  with- 
out serious  motives,  —  for  example,  because  the  sale  has  been 
made  at  a  very  low  figure.  Consent,  offer,  repurchase,  —  such  are 
the  successive  stages  through  which  the  right  of  the  relatives 
passed  as  it  became  more  and  more  restricted. 

§  339.  The  Consent  of  the  Relatives  (or  of  the  next  heir)  was 
required  originally  for  the  validity  of  the  alienation.^    Also,  it  is 

'  The  right  of  the  family  is  manifested,  even  over  possessions  held  by  lease; 
c/.  in  Hainaut  the  custom  of  had  will:  Deboiivry,  "Th^se,"  1899.  As  to  burgage 
in  Picardy  there  was  a  combination  of  the  repurchase  by  a  person  of  the  same 
lineage  and  the  repurchase  by  a  fellow  citizen  (Buthors,  "Sources  du  Dr. 
rural,"  p.  385;  "Cout.  d'Amiens,"  II,  588);  in  Normandy,  G^estal,  "Th^se," 
p.  80.    Post,  "Reserve,"  "Gifts  'inter  vivos,'"  etc. 

2  Cf.  Lewis,  Fipper,  Tamassia,  Ficker,  etc.,  op.  cU.;  Zimmerle,  "Deutsch 

435 


§  339]  OWNERSHIP   AND    REAL    RIGHTS  [Chap.  II 

found  mentioned  in  many  deeds  from  the  time  of  the  eighth  cen- 
tury; ^  the  sale  takes  place  "paupertate  cogente,  prsesente  et  con- 
cedente  iixore,  annuentibus  etiam  filio  et  filiabus,  prsesentibus 
etiam  et  assentientibus  amicis."  And,  if  only  there  were  a  large 
number  of  relatives,  the  proceeding  was  not  a  difficult  one  to  under- 
take; this  alone  is  sufficient  to  account  for  the  fact  that  they  were 
content  with  the  intervention  of  the  next  heir.  The  principle  of  the 
necessity  of  the  consent  of  the  relatives,  which  was  already  laid 
down  in  the  law  of  the  Saxons  in  an  implicit  manner,^  was  long 
afterwards  formulated  by  the  "Sachsenspiegel"  in  the  following 
terms:  "without  the  consent  of  the  heirs,  and  outside  of  the  public 
assembly,  no  one  can  alienate  his  inheritance  nor  his  people."  ^ 

Stammgutssystem,"  1857;  Brunner,  "Grundz.  d.  d.  Rechtsg.,"  §  57  (bibl.); 
Verdelot,  "Le  Bien  de  Famille  en  Allemagne,"  "These,"  1899. 

1  Act  of  796  in  Lacomblet,  "Urk.  d.  Niedder.,"  I,  no.  6;  cf.  no.  129  (in  996). 
Deeds  in  which  the  grantor  declares  that  he  has  no  heirs,  or  in  which  he  threat- 
ens his  heirs  with  spiritual  or  temporal  punishment  should  they  attack  the 
gifts  made  to  the  Church:  "Capit.,"  803,  c.  6;  817,  c.  6;  "Cart,  de  St.-Bertin," 
pp.  66,  69,  113;  "deCluny,"  I,  32,  etc.;  "de  Notre-Dame-de-Paris,"  I,  288. 
Mirocus,  "Op.  Dipl.,"  I,  665:  a  donor  declares  that  her  heirs,  —  that  is  to  say, 
her  sons  and  her  son-in-law,  her  daughter,  and  their  children,  —  approve  of 
the  gift  ("consentientibus  et  laudantibus").  Lamprecht,  "Etat  6conomique 
de  la  France  pend.  la  premiere  partie  du  M.  A.,"  treatise  1889,  p.  249;  "  Polypt. 
d'Irminon,"  p.  340  (ed.  G.):  annulment  of  the  gift  of  a  villa  to  the  Abbot  of 
Corbeil  in  986,  because  of  lack  of  consent  on  the  part  of  the  relatives.  "Cart, 
de  Beaulieu,"  35,  15.  They  even  allow  an  intervention  of  children  at  the  breast: 
"  Cart,  de  St.-Pere  de  Chartres,"  Intr.,  p.  cxxii.  In  order  to  obtain  this  consent 
it  is  not  a  rare  thing  for  the  purchaser  to  make  gifts  to  the  heirs  in  money  or 
in  kind. 

2  "Sax.,"  61,  62;  cf.  notes  by  Richthofen,  "M.  G.  G.,  L.  L.,"  V,  79.  _  The  law 
of  the  Saxons  merely  formulates  a  still  older  custom;  it  does  not  sanction  a  new 
rule,  as  Beseler  and  Lewis  have  pretended.  —  The  Anglo-Saxon  laws  forbade 
the  relative  to  alienate  the  inheritable  lands  "extra  cognationam  suam"; 
"iElfr.,"  41;  "L.  Henrici  I,"  70,  21;  88,  14;  cf.  "Cnut,"  II,  79.  —  Other 
barbarian  laws,  cf.  "Burg.,"  1,  1;  24,  5;  84;  99;  "Bai.,"  1,  1;  15;  16  and  17; 
"Rib.,"  59;  60;  "Roth.,"  159  et  seq.;  290,  173.  Cf.  "Fribourg  en  B.,"  1120, 
art.  6;  "Sole,"  17;  "Labourt,"  5.      _ 

^  "Sachsensp.,"  I,  52,  1.  There  is  no  rational  motive  for  limiting,  as  does 
Fipper,  the  right  of  giving  their  consent  to  a  certain  class  of  heirs,  —  for  ex- 
ample, to  the  degree  of  consanguinity  of  the  grandfather.  Perhaps,  according 
to  the  very  early  law,  all  the  male  relatives  who  had  attained  majority  had  to 
be  consulted;  but  it  was  deemed  sufficient,  although  it  might  have  been  only 
for  practical  seasons,  to  bring  in  the  nearest  ones  (a  deed  of  the  twelfth  cen- 
tury: the  son  during  the  lifetime  of  the  father  has  no  right,  etc.).  It  is  not  a 
rare  thing,  moreover,  for  distant  relatives  to  give  their  consent  "ad  majorem 
cautelam,"  without  its  being  strictly  necessary.  In  spite  of  the  custom  of 
strongly  favoring  the  minor  and  the  posthumous  child,  it  is  not  certain  that 
they  had  the  right  to  attack  a  deed:  Heusler,  II,  57.  The  intervention  of  the 
relatives  is  required  for  every  alienation,  gift,  sale,  exchange,  etc.  (at  the  same 
time  the  law  of  "Scanie,"  III,  2,  allows  of  exchange  "invitis  consanguineis"). 
The  heir  whose  consent  has  not  been  sought  has  a  right  to  take  the  immovable, 
as  though  the  inheritance  of  the  one  disposing  of  it  had  opened  ("velut  jure 
hereditario"):  "Sachsensp.,"  I,  52,  1.  To  put  it  better,  his  right  of  ownership 
springs  into  existence  from  the  very  fact  of  an  irregular  alienation.  Thus  he 
does  not  have  to  pay  any  indemnity  to  the  purchaser  {Ficker,  contra) ;  this  takes 

436 


Topic  S]         FREEDOM    OF   ALIENATING REPURCHASING  [§  340 

Though  not  sanctioned  by  all  the  barbarian  laws,  it  was  none 
the  less  a  part  of  the  foundation  of  the  old  Germanic  law;  ^  it 
was  so  firmly  rooted  in  the  Customs  that  neither  the  Roman 
law  nor  the  Capitularies  which  were  put  forth  in  the  interests  of 
the  Church  ^  succeeded  in  making  it  disappear.^  In  the  case 
of  irregular  alienation,  the  heir  who  was  next  under  the  owner 
stepped  into  the  place  of  the  actual  owner  who  had  abandoned  his 
rights  and  took  back  the  property  from  the  hands  of  the  vendee 
without  paying  him  any  indemnity.* 

§  340.  Offer  to  the  Next  of  Kin.  —  At  an  early  period  there 
were  many  derogations  of  the  primitive  rule;  alienation  was  au- 
thorized in  spite  of  the  relatives  in  exceptional  cases,  —  for  ex- 
ample, when  the  Church  or  the  king  was  the  grantee  (law  of  the 
Saxons),  or,  again,  in  case  of  necessity,^  for  the  purpose  of  obtain- 

place  of  its  own  accord  in  cases  of  gifts;  it  is  the  same  in  the  case  of  sales;  it 
is  the  natural  sanction  of  the  prescriptions  which  require  the  intervention  of 
the  relatives  (or  offer  to  the  nearest  of  them) .  —  The  effects  of  this  system  were 
sometimes  deplorable;  thus,  at  Nambourg,  where  it  lasted  until  1307,  the 
owners  who  had  become  incapable  of  cultivating  their  lands  and  could  not 
sell  them  for  lack  of  the  consent  of  their  relatives,  found  themselves  under 
the  necessity  of  allowing  them  to  go  to  waste:  Zimmerle,  p.  234. 

1  An  argument  based  upon  the  comparative  jurisprudence  of  the  consti- 
tution of  the  family,  traces  of  the  old  idea  even  in  the  legislations  which  no 
longer  accept  it  (for  example,  "Burg.,"  loc.  cil.:  if  a  partition  of  the  family 
possessions  takes  place  between  the  father  and  his  children,  each  one  of  them 
is  free  to  dispose  of  his  share;  in  case  they  live  in  joint  possession  the  right  of 
so  disposing  does  not  exist).    Cf.  "L.  Sal.,"  XLVI. 

2  "Capit.,"  I,  pp.  113,  151,  182,  379  (disposals  " pro  salute  animiE  vel  pro- 
pinquo  vel  cuilibet";  the  heir  cannot  attack  a  transfer  "legitime  facta"); 
"Cart,  de  St.-Pere  de  Chartres,"  I,  40  and  88;/' Capit.,"  V,  235. 

'  Customs  were  stronger  than  the  law;  in  the  tenth  century,  at  least, 
the  consent  of  the  heirs  is  necessary  in  Saxony,  even  in  the  case  of  gifts  to  the 
churches;  the  son  of  Witikind  only  makes  a  disposition  upon  obtaining  the 
consent  of  his  own  son:  Flodoard,  "Hist,  de  Reims,"  I,  p.  280  (ed.  Leg.):  in 
670;  Beauchet,  "N.  R.  H.,"  1901,  14.  —  If  one  wishes  to  get  some  idea  of  the 
annoyance  resulting  from  this  rule,  let  him  consider  that  sometimes  one  meets 
with  as  many  as  eight  deeds  of  confirmation  accompanying  one  single  deed  of 
sale  and  coming  from  the  relatives  or  the  lord. 

*  Heusler,  II,  59.  More  often  the  right  of  way  is  accounted  for  by  the  idea 
of  an  anticipated  opening  of  the  succession;  but  these  ideas  are  almost  confused 
in  the  old  law. 

^  "Legrtima  necessitas,"  "echte  Noth,"  understood  at  first  in  a  very  strict 
manner,  and  afterwards  with  less  strictness  (Henry  IV  sells  the  estate  of  Oisy  in 
order  to  pay  his  debts).  —  "Famine.,"  "Sax.,"  62;  "Roth.,"  173;  Ragueau,  see 
"Pauvret6  juree"  (Charter  of  the  Bass6e,  eleventh  century:  "quod  nullus  nisi 
paupertate  vendere  potuerit");  Desmares,  283;  "Beam,"  1552,  contr.  6; 
"Artois,  N.  C,"  XXIII:  alienation  is  permitted  in  three  ca.ses:  consent  of  the 
heir,  poverty,  reinvestment.  Boulnric,  2,  7;  "Schwabenspiegel,"  c.  375;  Grimm, 
p.  461;  Demelic,  "Dr.  Cout.  des  Slav.  Mcrid.,"  I,  34.  Spanish  "Fueros,"  for 
example,  "Najera,"  in  1076;  "Amalfi,"  c.  11;  "Ferrette"  V,  23.  —  Sometimes 
proof  given  by  the  oath  of  the  grantor,  sworn  poverty:  intervention  of  the  law: 
"F.  de  Beam,"  loc.  cit.;  Guyot,  see  "N6cessit6  jur6e."  —  C/.  "Barege,"  4,  5; 
Ricaume,  "Th6se,"  1897. 

437 


§  340]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

ing  sustenance  in  time  of  destitution  and  avoiding  slavery  for 
debt,  or  of  ransoming  oneself  from  captivity.  Sworn  poverty  is 
the  most  general  cause  of  and  excuse  for  alienation;  in  the  thir- 
teenth century  the  "Livre  de  Jostice,"  p.  169,  still  says,  "^Nlan 
can  sell  his  inheritance  for  his  need,  but  not  for  liis  profit."  In 
such  a  case  as  this  he  should  begin  by  offering  the  land  to  his 
nearest  heir,  to  the  next  of  kin,  or  even  to  his  relatives  in  general, 
to  the  friends  of  the  flesh.  It  is  only  upon  their  refusal  to  take 
over  the  property  for  their  own  account  that  he  is  permitted  to  sell 
it  to  strangers.^  Thus  the  relatives  have  a  right  to  preference 
over  strangers  (pre-emption,  preference  "in  re  non  vendita").^  If 
he  omits  to  offer  they  are  permitted  to  take  back  the  property  from 
the  stranger  who  has  bought  it,  without  paying  him  any  indemnity 
and  without  restoring  to  him  the  price  of  the  sale.^  —  There  came  a 
time  when  the  condition  of  necessity  was  no  longer  required;  it 
was  implied,*  and  the  offer  to  the  next  of  kin  took  place  even  in 
his  absence.  Better  still,  when  the  owner  had  neglected  to  make 
the  offer,  the  Customs  no  longer  authorized  the  relatives  to  take 
back  the  property  excepting  upon  condition  of  indemnifying  the 
vendee  (preference  "in  re  vendita").^ 

1  "L.  Sax.,"  62;  "Roth.,"  173;  "Stat.  fam.  S.  Pietri  Worm.,"  in  1024,  2 
and  6;  Martene,  "Ampliss.  Coll.,"  I,  381  (about  1020,  "Arras");  "Petrus," 
I,  19;  "L.  Feud.,"  2,  3;  Jobbe-Duval,  p.  83,  87,  90  (Denmark,  Sweden,  etc.); 
Scotland:  "Leges  Burg.,"  45;  "Stat,  de  Gothland,"  31,  1;  "Cart,  de  St.- 
Bertin,"  p.  158  (sales  among  relatives) ;  Desmares,  "Et.  sur  la  Propr.  Fonc. 
dans  les  Villes  du  M.  A.,"  1898,  p.  247.  Cf.  the  notification  of  individuals  in 
Breton  public  investiture.  Beaumatioir,  44,  27,  28,  condemns  a  system  intro- 
duced by  practice  and  which  consisted  in  offering  a  property  to  the  relatives, 
so  that  they  might  declare  themselves  before  the  expiration  of  the  year  and  a 
day  of  the  repurchase.  This  system,  rejected  in  Beauvaisis,  was  very  common 
Ib  Flanders,  Artois  and  Picardy:  Bouthors,  "Cout.  d'Amiens,"  1853;  "Roisin," 
p.  64;  Beauchet,  p.  22. 

2  Various  proceedings  for  the  fixing  of  a  price  to  be  paid  by  the  relatives 
when  their  right  was  presented  under  the  form  of  the  pre-emption,  when  there 
has  been  no  previous  sale  to  a  third  party  (appraisal  by  experts,  legal  price) : 
Beauchet,  "N.  R.  H.,"  1901,  26. 

'  Ficker  has  contested  this;  but  this  seems  to  us  to  result  impliedly  from  the 
provisions  as  to  the  intervention  of  the  relatives  and  offer  to  the  next  of  kin. 
The  Swedi.sh  text  cited  by  Amira,  "Nordg.  Obi.,"  I,  578,  seems  to  us  to  be 
very  categorical  according  to  our  interpretation.  He  also  shows  that  the  idea 
of  punishing  the  person  alienating  who  did  not  conform  to  the  custom  of  first 
making  an  offer  to  the  relatives  was  not  unknown  to  the  legislator.  The 
Anglo-Saxon  law  forbids  one  to  alienate  to  anybody  except  one's  relatives;  this 
implies  that  alienation,  although  made  with  consent,  if  to  strangers  is  void. 
One  might  conceive,  it  is  true,  of  making  the  property  a  part  of  the  inheritance 
of  the  seller;  but,  if  we  find  a  few  examples  of  this  solution,  it  was  too  little 
practiced  to  be  adopted  in  a  general  manner:  "Cart,  de  St.-Pere  de  Chartres," 
p.  126;  "Ponthieu,''  19;  "Tailliar,"  "Rec.  d'Actes,"  p.  341. 

*  "Charte  d'Amiens,"  1190,  Art.  25.  Cf.  La  Thnumassiere,  "A.  C,  Berry," 
p.  610  (in  1171);  Marnier,  "A.  C,  Picardie,"  p.  148. 

*  Transition  to  the  system  of  the  repurchase:  "Cout.  de  Mons.,  Bourdot  de 

438 


Topic  S]         FREEDOM    OF   ALIENATING REPURCEL\SING  [§  341 

§  341.  Repurchase.  —  In  a  last  stage  the  offer  to  the  next  of 
kin  has  fallen  into  disuse.  Alienation  is  absolutely  free.  The  rela- 
tives who  have  not  been  consulted  preserve  the  repurchase  or  power 
of  taking  back  the  land  during  a  year  and  a  day,  on  condition  of 
indemnifying  the  buyer  therefor.^  Under  this  last  form,  which 
is  the  most  recent  and  by  far  the  most  widespread,  in  the  Cus- 
tomary legislations  of  the  whole  of  Western  Europe,  the  right  of 
the  family  survives,  very  much  weakened,  like  a  sort  of  counter- 
part of  the  hereditary  reservation.^  It  serves,  first  of  all,  to  re- 
establish the  domain  of  the  house,  to  assure  the  transmission  of 
everything  to  the  legal  representatives  of  the  family.  The  heredi- 
tary interest,  or,  so  to  speak,  the  dynastic  interest,  is  especially 
brought  into  play.  In  time  a  political  thought  is  mingled  with 
these  very  much  weakened  traditional  foundations.  The  repur- 
chase, "that  mystery  of  the  ancient  law,"  as  Montesquieu  rather 
pompously  calls  it,  makes  its  appearance  as  one  of  the  means  used 
by  the  State  to  retard  the  decadence  of  old  families;  it  is  a  protec- 
tion against  the  lack  of  skill  of  a  mediocre  head,  or  against  the 
evil  fortune  which  leads  him  to  sell  the  family  patrimony  for  an 
insignificant  sum;  if  the  price  is  fair,  it  is  well  worth  while  to 
reserve  for  a  relative  the  advantage  of  this  proceeding.  This  con- 
ception was  not  without  its  influence  upon  the  persistence  of  the 
repurchase  throughout  the  whole  of  the  ancient  law.  But  it  did 
not  prevent  practice  from  overthrowing  it  at  an  early  time,  with 
the  assistance  of  various  wiles.  The  " Grand  Coutumier  de  France" 
already  shows  this;  Beaumanoir  complains  of  the  frauds  and  ruses 
by  means  of  which  it  is  sought  to  hinder  its  application.^  Juris- 
prudence was  compelled  to  restrain  this  "hateful  right,"  which 
was  contrary  to  Roman  legislation,^  and  progress  was  thus  made 

Rich.,"  II,  182:  offer  to  the  next  of  kin;  if  this  is  not  done,  repurchase  within 
a  year  and  a  day.  Cf.  "Bayonne,"  V;  "Farrette"  (Alsace),  1592,  c.  23; 
Beauchet,  "N.  R.  H.,"  1901,  29. 

1  "Beauvais,"  1182  ("Ord.,"  VII,  624),  and  other  municipal  charters  in 
the  North  of  France,  twelfth  century;  "T.  A.  C,  Norm.,"  90;  "Olim,"  I,  444 
(in  1257),  etc.  —  Spain,  "Fuero  Real,"  3,  10;  "Siete  Part.,"  5,  5,  55  (and 
notes).  —  Italy:  Dig.  X.,  1,41,9  (Decree  of  Gregory  IX) ;  Latles,  "  Dir.  Consuet. 
Lomb.,"  p.  269;  "Milan,"  1216,  VIII  ("de  re  paterna  luenda");  c/.  Statutes  of 
1396  (adjoining  property).  See  especially  the  Sicilian  Customs  in  Briinneck, 
"la  Mantia,"  "Sic.  Villanueva"  ("Docum.  p.  s.  Stor.  d.  Sicilia,"  2). 

'^  Ficker  does  not  believe  that  these  two  institutions  are  parts  of  the  same 
system,  pp.  182-196:  "Ass.  de  J6rus.,"  "C.  des  B.,"  30  (II,  35,  ed.  B.);  "Gr. 
Gout.,"  p.  338  (Champagne):  "I  pray  j'ou,  make  me  your  heir  to  that  which 
you  have  bought  from  such  and  such  a  person,  my  cousin." 

'  Beaumanoir,  44,  1  et  seq.;  "Gr.  Cout.,"  p.  346;  "Olim,"  I,  496. 

*  Henry  III,  by  means  of  an  Edict  of  November,  1581,  in  vain  attempted 
to  make  it  the  general  law  of  the  kingdom;  hia  edict  waa  not  appUed:  "Code 

439 


§  341]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

towards  Revolutionary  law,  which  abolished  it.^  Of  course,  the 
precise  lines  of  historical  change  were  not  always  as  set  forth  in 
this  systematic  recital  which  we  have  just  made;  sometimes  evo- 
lution was  very  slow,  sometimes  very  rapid,  and  degrees  were 
passed  by  certain  Customs.^  But  the  general  ideas  which  we  have 
just  set  forth  seem  to  us  alone  to  account  for  the  principal  charac- 
teristics of  the  old  law  as  far  as  it  concerns  the  power  of  alienation 
"inter  vivos,"  ^  and,  at  the  same  time,  the  local  variations  of  these 
which  are  to  be  met  with.^ 

Henri,"  6,  16;  see  Guyot.  In  countries  of  written  law  the  repurchase  only 
exists  as  an  exception  by  virtue  of  local  Customs.  It  is,  nevertheless,  fairly 
widespread:  "Bord.,"  85  et  seq.:  128;  "Agen,"  38;  "Bergerac,"  39;  "Acs.,"  10; 
"Saint-Sever,"  5,  etc.;  Serves,  "Inst.,"  3,  24,  2;  "Quercy"  and  "Rouergue"; 
Despeisses,  "OEuvres,"  I,  74;  Henrys,  1,2, 19;  II,  19  and  3, 4  (not  practised  in  the 
Lyonnais,  Bcaujolais,  and  Forez);  Cambolas,  III,  35;  Acquests.  Cf.  Statute  of 
Provence  of  1472  (one  month);  "B.deR.,"II,  1212;  "Mont-de-Marsan,"  7;see 
Montesquieu,  "Esprit  des  Lois,"  5,  8  and  9  (to  perpetuate  the  greatness  of  fam- 
ilies, this  is  the  aim  of  the  monarchic  system):  Lamoignon,  "Arr.,  h.  t.,"  4. 

^  Was  there  a  recrudescence  of  this  institution  in  the  sixteenth  century 
under  the  influence  of  the  spirit  of  the  nobility?  This  is  ordinarily  admitted 
(c/.  Edict  of  1581),  without,  as  it  seems  to  us,  being  very  well  established. 

2  Thus  the  repurchase  is  lacking  in  the  EngUsh  common  law,  which  admits  of 
the  freedom  to  dispose  "inter  vivos "  as  well  as  by  will :  Pollock  and  Mailland,  I, 
632;  II,  252-328;  Jobbe-Duval,  p.  101.  At  Gand  it  was  abolished  as  early  as 
1191:  "Cambrai,"  II,  13;  "Tournay,"  25,  5;  "Arras,"  69;  Desmares,  op.  cit., 
p.  247.  —  In  the  law  of  the  Burgundians,  if  the  father  partitions  his  possessions 
with  his  sons,  he  is  free  to  dispose  of  his  share;  the  right  of  the  relatives  only 
exists  so  long  as  they  live  in  a  state  of  joint  possession;  Pappenheim,  "Laune- 
gild,"  p.  60.  But  during  the  Middle  Ages  the  right  of  repurchase  was  allowed 
even  for  the  benefit  of  distant  relatives  who  no  longer  lived  in  a  state  of  joint 
ownership.  Cf.  post,  "Inheritance";  Huber,  "Hist.  Grundl.  ehel.  Giit.,"  1884, 
p.  19.  As  to  the  Swedish  law,  cf.  Jobbe-Duval,  p.  87.  Conflict  between  the 
"L.  Sax."  and  the  law  of  the  South  of  Germany:  Verdelot,  op.  cit. 

*  The  other  explanations  suggested  in  order  to  account  for  the  restrictions 
upon  the  right  of  alienation  "inter  vivos"  can  be  reduced  to  the  one  wliich 
we  have  given  (for  example,  Gerber,  "  Meditationes  ad  Spec.  Saxon.,"  p.  10, 
insists  upon  the  necessity  of  preserving  for  the  family  the  political  rights 
which  are  connected  with  the  possession  of  land).  Or  else  they  start  with 
the  principle  of  the  freedom  of  disposal:  a  reaction  against  this  right  must 
have  taken  place  at  first  in  Customs,  and  later  in  the  laws  (an  attachment  for 
hereditary  possessions,  an  affection  for  relatives,  a  desire  to  leave  them  sus- 
tenance, cf.  at  Rome,  "querela  inoff.  test.");  but  not  one  of  these  ideas  can 
account  for  the  repurchase  with  regard  to  a  sale,  —  that  is  to  say,  an  act 
which  can  be  advantageous  to  the  family.  One  might  also  maintain  that  the 
restrictions  upon  the  freedom  of  disposing  date  from  a  period  when  the  family 
was  disintegrating,  and  that  they  were  established  with  the  very  object  of 
checking  this  movement;  this  opinion  would  be  plausible  if  these  restrictions 
had  been  recent,  and  if  the  texts  which  mention  them  presented  them  in  the 
form  of  legislative  innovations.  Cf.  Zimmerle,  Fipper,  op.  cit.  According  to 
Ficker,  p.  292,  the  consent  of  the  heirs  would  have  nothing  in  common  with 
the  repurchase;  by  taking  part  in  the  deed  the  heirs  would  have  barred  them- 
selves from  contesting  its  existence  or  its  irregularity.  But,  if  this  had  been 
so,  their  intervention  could  not  have  been  as  important  as  it  actually  is. 

*  J.  Ficker,  "Untersuch.  zur  Erbenfolge  der  Ostgerman.  Rechte,"  vol.  V,  1st 
part,  p.  244,  accounts  for  the  repurchase  by  means  of  the  principle  of  the  abso- 
lute liberty  of  disposing  "inter  vivos,"  which  must  have  existed  according  to  him 

440 


Topic  8]         FREEDOM    OF   ALIENATING REPURCHASING  [§  342 

§  342.  Conditions  of  the  Repurchase.  —  (I)  Property  Subject 
to  the  Repurchase.  Inherited  personal  belongings  alone  are  the 
subject  of  repurchase  in  the  final  theory,  for  they  constitute,  as  it 
were,  a  deposit  which  each  generation  should  hand  over  intact  to  the 
generation  which  succeeds  it.^  The  rule  is  otherwise  with  regard 
to  acquests,  the  result  of  individual  labor,  the  free  disposition  of 
which  was  left  to  each  one  as  soon  as  it  was  possible,  so  as 
to  encourage   the  spirit   of   enterprise   and    economy ;  ^   neither 

in  the  old  Germanic  law.  One  must  have  noticed  that  a  piece  of  land  can 
have  more  value  for  neighbors,  for  adjoining  owners,  than  for  owners  of  land 
at  a  distance,  and  that  there  is  often  an  advantage  in  uniting  adjoining  par- 
cels in  the  interest  of  good  cultivation,  and  that  the  choice  of  a  neighbor  is 
not  a  matter  of  indifference.  These  needs  of  an  economic  and  social  order 
were  satisfied  by  giving  to  a  neighbor  the  power  of  repurchasing;  the  right  of 
the  owner  freely  to  dispose  of  his  land  was  not  affected  by  this,  for  it  was 
always  easy  for  him  to  obtain  the  market  value,  and  it  mattered  little  to  him 
whether  this  price  were  paid  by  the  repurchaser  or  by  the  grantee.  The  re- 
purchase was  given  by  preference  to  near  relatives.  As  soon  as  it  came  to  be 
a  matter  of  a  favor  it  was  perfectly  natural  that  it  should  go  to  those  people 
whose  mutual  relations  called  upon  them  to  render  one  another  continual 
services.  Furthermore,  the  reconstitution  of  the  family  domain  offers  in  a 
quite  special  manner  those  advantages  wliich  are  sought  for  by  means  of  the 
repurchase.  Thus  would  be  accounted  for  the  predominance  in  the  old  law  of 
the  repurchase  by  a  person  of  the  same  lineage.  It  is  understood  in  this  sys- 
tem that  the  repurchase  does  not  apply  to  acquests,  but  only  to  personal  be- 
longings (hereditary  property,  "abolengo,"  "Aehnigut"),  nor  to  deeds  such  as 
gifts  (this  would  have  been  to  prohibit  them);  it  is  also  understood  that  it 
meant  the  restoration  of  the  price  of  sale,  whatever  it  may  have  been.  The 
theory  of  the  repurchase  by  a  person  of  the  same  lineage  would  thenceforth 
be  connected  neither  with  the  institution  of  the  hereditary  reservation  nor 
with  the  necessity  of  the  participation  of  the  parents  in  the  alienation  of  the 
family  possessions.  — Outside  of  the  criticisms  of  details  to  which  this  in- 
genious solution  seems  to  us  to  lay  itself  open  (for  example,  why  forbid  the 
repurchase  in  case  of  an  exchange?  why  do  certain  customs  admit  of  the  re- 
purchase of  acquests?  how  does  it  happen  that  the  repurchases  of  joint  pos- 
sessions and  of  neighborhood  are  not  so  widespread  as  the  repurchases  by  a 
person  of  the  same  lineage,  etc.?)  we  object  to  it  because  it  accounts  for  a 
very  old  fact  by  means  of  existing  causes;  and,  though  these  causes  stiU  exist, 
the  fact  has  disappeared.  The  evolution  of  the  theory  of  the  repurchase  be- 
comes difficult  to  follow.  It  is  not  true  that  the  owner  of  a  piece  of  i)roperty 
subject  to  the  repurchase  will  always  obtain  the  actual  price  of  this  property; 
on  the  contrary,  the  risk  of  the  repurchase  will  prevent  him  from  finding 
buyers  or  will  only  make  it  possible  for  him  to  obtain  a  lower  price;  the  re- 
purchase is  a  serious  check  on  the  owner's  power  of  disposal.  As  to  thinking 
that  the  old  Germanic  law  admitted  the  principle  of  the  freedom  of  disposal 
"inter  vivos"  of  immovable  property,  this  is  an  idea  which  it  is  hard  to  recon- 
cile with  the  constitution  of  the  family  and  the  system  of  landed  property;  in 
other  legislations  having  the  same  foundations,  liberty  of  disposing  does  not 
seem  to  have  been  recognized;  this  is  a  right  which  dates  from  the  period  when 
the  family  is  disintegrating  and  when  ownership  is  becoming  individualized. 

1  Sometimes,  even,  only  the  immovables  which  have  been  in  the  family 
for  three  generations  are  subject  to  the  repurchase;  these  are  the  family  pos- 
sessions "stricto  sensu,"  ancestral,  the  "eredad  de  abolengo,"  true  "Stamm- 
giiter"  or  possessions  of  the  stock.  For  example,  "F.  de  Beam,"  1552,  "R. 
de  Contr.,"  5;  "Gout,  de  Bareges,"  1768,  3,  4;  Ficker,  p.  260  et  seq.  (details); 
"L.  Rib.,"  50,  "hereditas  aviatica." 

^  In  the  very  old  law  personal  belongings  and  acquests  are  subject  to 

441 


§  342]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

acquests^  nor  movables^  "are  subject  to  repurchase."  Some 
immovables,  also,  escaped  therefrom  because  of  their  special 
character:  offices,  constituted  rents,  tithes  which  are  invested, 
and  usufruct.^ 

§  343.  The  Same.  —  (II)  Acts  which  give  Rise  to  the  Repurchase. 
In  order  to  make  the  repurchase  possible  there  had  to  be 
"transfer  of  ownership"  and  "purse  untied."  Grants  for  a  con- 
sideration were  thus  the  only  ones  which  could  give  rise  to  it. 
If  there  was  not  a  complete  alienation,  but,  for  example,  merely 
the  establishment  of  a  servitude,  the  property  did  not  go  out  of 
the  family.^  If  there  is  not  a  purse  untied,  that  is  to  say,  if  the 
alienation  is  gratuitous,  the  repurchase  is  not  allowed;  the  in- 
terests of  the  relatives  are  protected  by  other  methods.^  To  a 
sale  (voluntary  or  forced),^  or  equivalent  acts,  such  as  giving  in 
payment  a  lease  for  a  long  term,  an  exchange,^  an  investment  in 

the  same  system:  Verdelot,  "These,"  1899.  In  the  eleventh  century  a  distinc- 
tion is  made  categorically  in  deeds:  "Cart,  de  St.-Pere  de  Chartres,  p.  494: 
"Quod  pater  propria  pecunia  emerat  liceat  ei,  etiam  nolentibus  filiis,  cuilibet 
dare  posse."  The  evolution  of  the  distinction  did  not  take  place  without 
some  difficulty  and  hesitation.  In  the  time  of  Beaumayioir,  44,  2,  they  dis- 
puted as  to  whether  the  acquests  of  the  father  became  the  personal  belonging 
of  the  child;  Lauriere  on  "Paris,"  133,  still  maintains  that  the  personal  be- 
longing brought  by  a  person  of  the  lineage  does  not  become  an  acquest :  Beau- 
manoir,  44,  1;  "A.  C,  Picardie,"  p.  148,  ed.  Marnier;  Beauchet,  p.  609. 

^  Beaumanoir,  44,  2;  Loysel,  429.  To  the  contrary  a  few  Customs,  such  as 
"Norm.,"  451  ("Gr.  Cout.  Norm.,"  116);  "Ohm,"  II,  843,  293;  "Lille,"  7, 
9,  which  Dumoulin  qualifies  as  odious  and  iniquitous  (on  "Maine,"  376),  but 
which  are  found  merely  to  have  adhered  to  the  point  of  view  of  the  very  old 
law  until  a  rather  late  period.  In  the  South  the  idea  of  perpetuating  the 
greatness  of  families  caused  the  repurchase  to  be  extended  to  include  acquests : 
sometimes  both  lines  participated  and  sometimes  the  paternal  relatives  were 
preferred. 

2  Exceptions:  Loysel,  444,  219;  "Ord.  s.  Marine,"  10,  1;  Labourt,  6,  1,  2. 

'  As  to  rights  over  immovables,  cf.  "Olim,"  I,  897;  233, 19;  "Gr.  Cout.," 
pp.  328,  347;  "Cout.  Not.,"  89;  Desmares,  284;  "Actes  du  Pari.,"  nos.  1267, 
1443;  J.  Faber,  "Inst.,"  2,  13,8;  "ParLs,  N.  C,"  129,  147;  "Orleans,"  191,  399; 
Pothier,  no.  39;  Loysel,  434,  444. 

*  As  to  the  leasing  of  lands,  cf.  Desmares,  197;  "Orl<5ans,  A.  C,"  304; 
"Norm.,"  465,  478;  Giard,  "These,"  p.  182.  As  to  pledging,  Beauchet, 
"N.  R.  H.,"  1901,  12. 

*  "Olim,"  II,  173  (in  1281);  Beaumanoir,  12,38;  Pothier,  no.  104.  Cf. 
Heusler,  II,  64;  Beauchet,  loc.  cit. 

^  The  old  law  required  a  sale  and  a  transfer  of  ownership;  only  then  could 
the  inheritance  go  out  of  the  family.  In  the  sixteenth  century  there  are 
many  who  maintain  that  the  repurchase  can  take  place  simply  because  a  bar- 
gain has  been  made.  See  as  to  this,  "The  Beginning  of  the  Delay  of  a  Year 
and  a  Day,"  "  Transfer  of  Ownership  " ;  seeGuyot,  s.  6.  —  Loysel,453;  "T.  A.  C, 
Bourg.,"  73;  Masuer,  XXX;  "L.  d.  Droiz,"  577;  "Orleans,"  400;  Bretonnier, 
"Quest,"  see  "Retrait  Hngager." 

'  The  family  does  not  suffer  on  account  of  this  transaction,  because  if  an 
immovable  is  alienated  a  piece  of  property  of  the  same  nature  and  the  same 
value  takes  its  place  and  is  subrogated  to  it:  "Et.  de  St.  Louis,"  I,  53;  "Actes 
du  Pari.,"  I,  no.  645;  Desmares,  145,  197,  298;  "Gr.  Cout.,"  pp.  341,  346; 

442 


Topic  8]'        FREEDOM    OF   ALIENATING  —  REPURCHASING  [§  344 

a  partnership/  were  not  likened;  and  this  was  a  fresh  proof  of 
the  weakening  of  the  family  right. 

§  344.  The  Same.  —  (III)  WJio  has  the  Right  to  the  Repurchase? 
It  is  not  all  the  relatives  of  the  vendor,  but  only  those  who  are 
of  the  same  lineage  from  which  the  property  comes,^  that  have 
this  right;  those  of  the  paternal  lineage,  if  paternal  property  is 
concerned;  those  of  the  maternal  lineage  if  a  piece  of  maternal 
property  is  concerned:  "paterna  paternis,  materna  maternis."  In 
giving  a  maternal  relative  the  right  of  withdrawing  a  personal 
belonging  coming  from  the  father's  side,  this  property  would  no 
longer  be  preserved  in  the  family;  it  would  pass  to  strangers.^ 
The  repurchase  is  in  a  certain  sense  only  the  exercise  by  way  of 
anticipation  of  the  right  of  inheritance;  also,  the  lineal  relative 
cannot  avail  himself  of  it  excepting  if  he  be  capable  of  inheriting.'* 
It  is  to  so  great  an  extent  modeled  after  the  right  of  inheritance 
that,  in  order  to  determine  who  are  the  lineal  relatives  who  have 
the  right  to  the  repurchase,  the  Customs  are  divided  into  several 
groups,  just  as  when  it  is  a  question  of  the  inheritance  of  personal 
belongings;  a  distinction  is  made  between  Customs  of  the  stock,  of 
the  side  and  line,  of  the  side  aloneJ'     Nevertheless,  they  are  not 

"L.  d.  Droiz,"  124,  572;  Loysel,  225,  445,  447.  The  repurchase  is  allowed  in 
cases  of  fraud  or  injury  to  the  people  of  the  lineage  {Beaumanoir,  54,  1;  Loy- 
sel,  loc.  cit.),  or  if  the  exchange  takes  place  with  a  settlement,  excepting  that 
it  is  sometimes  distinguished  according  to  the  importance  of  the  settlement: 
Beaumanoir,  44,  4;  "Gr.  Gout.,"  p.  337;  "Paris,"  145;  Beauchet,  "N.  R.  H.," 
1901,  16. 

1  Loysel,  446,  448;  "T.  A.  G.,  Bret.,"  221:  no  repurchase  with  deed  of  feoff- 
ment: contra,  "Hainaut"  (gifts,  partnership,  etc.). 

2  Loysel,  428;  Galland,  "Ft.  Alleu,"  p.  21. 

^  The  repurchase  by  a  person  of  the  same  lineage  cannot  be  assigned  (ex- 
cepting to  a  person  of  the  lineage),  whereas  the  lord  can  assign  the  feudal 
repurchase:  "Tours,"  281;  "Bourb.," 457;  "Marche,"  280;  "Auvergne,"  21,  20. 

*  Loysel,  439,  440;  "Paris,  N.  G.,"  148.  Bastards,  aliens  and  people  civilly 
dead  have  no  right  to  the  repurchase.  But  this  is  not  so  with  regard  to  the 
person  who  has  been  disinherited,  the  heir  who  renounces,  or  the  ascendant 
who  can  have  opposed  to  him  the  rule,  "Personal  belongings  do  not  ascend." 
Disinheritance  and  renunciation  must  have  been  first  of  all  presented  under 
the  archaic  forms  of  exclusion  from  the  family,  and  then  they  meant  a 
loss  of  the  right  to  the  repurchase;  they  have  been  less  efficacious  under  their 
modern  forms,  all  the  more  so  as  they  were  not  irrevocable.  With  regard  to 
ascendants,  c/.  post,  "Inheritances."  The  son  can  repurchase  during  the  life- 
time of  the  father  the  inheritance  which  has  been  sold  by  the  latter:  Loysel, 
441.    As  to  representation,  c/.  "Troyes,"  145;  "Norm.,"  475. 

s  Cf.  Guyot.  —  Customs  of  the  stock:  "Nivernais,"  26,  13;  "OrU'-ans,"  363, 
etc.  Customs  of  the  side  and  line  (this  is  the  common  law,  in  the  same  way 
that  it  is  in  matters  of  inheritance):  "Paris,"  129;  Loysel,  439;  "Olim,"  III, 
276;  "Gr.  Gout.,"  p.  3i6.  —  Ctistoms  of  the  side  alone:  "S6dan,"  246.  Cf. 
"Reims,"  191;  "Lille,"  7,  5.  The  relatives  of  the  seller  on  the  side  from 
which  the  inheritance  comes  (for  example,  on  the  paternal  side)  may  exercise 
the  repurchase,  although  they  do  not  belong  to  the  line  of  the  person  who  was 

443 


§  344]  OWNERSHIP   AND    REAL   RIGHTS  [Chap,  II 

absolutely  uniform.  Such  and  such  a  Custom  is  one  "of  the  stock" 
as  far  as  inheritance  is  concerned,  and  not  as  far  as  repurchasing 
is  concerned,  etc.^  There  is  another  analogy:  lineal  relatives  of 
the  degree  furthest  removed  have  a  right  to  the  repurchase  as  well 
as  to  the  inheritance;  should  they  be  of  the  twentieth  degree, 
says  Dumoulin,  they  would  not  be  excluded  from  the  repurchase.^ 
But  resemblances  become  less  striking  in  case  of  competition  be- 
tween several  lineal  relatives :  (a)  if  they  are  of  the  same  degree,  the 
most  expeditious  one  prevails,  unless  they  act  together,  and  in 
this  case  each  one  takes  back  his  share  of  the  property;^  (6)  if 
they  are  of  different  degrees,  the  rule  of  the  old  law  is  that  the  near- 
est prevails;  ^  in  more  recent  law  it  is  the  most  expeditious  one.^ 
This  last  explanation  is  an  indication  of  the  decadence  of  the  in- 
stitution; the  interest  of  the  family,  the  only  thing  taken  into 
consideration  formerly,  was  to  secure  the  property  for  the  nearest 
relative,  because  the  latter  represented  the  family  as  far  as  repur- 
chase was  concerned,  just  as  he  also  represented  it  as  far  as  in- 
heritance was  concerned;  by  allowing  a  distant  relative  to  take 
possession  of  it  to  the  detriment  of  the  nearer  relative,  it  was  dem- 
onstrated that  the  reconstruction  of  the  unity  of  the  family  domain 

the  first  one  to  acquire  the  property  (for  example,  they  are  not  relatives  of 
the  paternal  grandfather  who  acquired  the  property,  but  they  are  connected 
with  the  paternal  grandmother).  These  Customs  no  longer  logically  form  a 
part  of  this  system ;  still  more  is  this  true  with  regard  to  the  Customs  of  rela- 
tionship alone  ("Bourg.,"  10,  4;  'Tranche  Comte,"  13,  1),  according  to  which 
the  paternal  relatives  can  withdraw  the  paternal  personal  belongings  and  vice 
versa;  this  solution  can  only  be  included  witliin  the  Customs  which  allow  of 
the  repurchase  of  acquests.  —  As  to  the  Customs  of  the  main  line,  "Besangon," 
for  example,  cf.  Dunod,  c.  4. 
^  Examples  in  Guyot,  loc.  cit. 

2  Divergent  Customs:  the  repurchase  only  belongs  to  lineal  relatives  to 
the  seventh  degree,  Beaumanoir,  44,  7  (according  to  the  canon  rules  in  matters 
of  the  impediments  to  marriage);  to  the  sixth  or  the  ninth,  according  to  the 
Customs  of  Nivernais  and  Normandy.  —  If  there  are  no  relatives  in  a  certain 
line  there  will  not  be  any  devolution  to  the  other  line:  Pothier,  no.  138. 

3  "Et.  de  St.  Louis,"  I,  156;  "T.A.  C,  Bourg.,"  73;  "Gr.  Cout.,"  p.  339; 
"Norm.,"  476;  Beaumanoir,  44,  25.  —  Indivisibility  of  the  repurchase  in  the 
interest  of  the  purchaser:  Loysel,  456;  see  Guyot,  s.  5. 

^  Loysel,  430  (bibl.);  "L.  Feud.,"  4,  14;  "  Et.  de  St.  Louis,"  I,  161;  "Olim," 
III,  302,  44;  Beaumanoir,  44,  10;  "L.  d.  Droiz,"  80,  125;  "Norm.,"  475; 
"T.A.  C,  Bret., "46;  "Troyes,"  145,  etc.;  Jobbe-Duval,  pp.  120,  150.  Idem., 
Customs  of  the  Pyrenees  and  Customs  of  the  North  of  France. 

^  Loysel,  431;  "Paris,  A.  C,"  178;  "N.  C,"  141.  It  is  its  simplicity  which 
has  been  responsible  for  the  success  of  this  system ;  but  none  the  less  an  attempt 
has  been  made  to  give  it  a  juridical  basis  by  sajnng  that  the  right  of  preference  is 
accorded  to  the  family  "in  globo";  the  first  one  who  comes  forward  and  appro- 
priates it  for  himself  "jure  quodam  occupationis "  (prevention).  —  Cf.  as  to 
this,  the  other  repurchases.  In  German  law  the  rule  is  sometimes  found  that  if 
several  inhabitants  of  one  village  wish  to  exercise  the  repurchase,  the  one  to 
whom  the  land  is  the  nearest  is  preferred;  the  distance  is  measured  with  a 
"perche"  (measuring  rod). 

4M 


Topic  8]        FREEDOM   OF   ALIENATING  —  REPURCHASING  [§  347 

was  less  thought  of  than  favoring  the  greatness  of  some  branch  of 
the  house  in  a  poHtical  interest.  Thus  was  the  repurchase  turned 
aside  from  its  original  object. 

§  345.  The  Same.  —  (IV)  Against  whom  was  the  Repurchase  al- 
loivedf  From  the  period  when  it  was  intended  to  prevent  the  per- 
sonal belonging  from  going  out  of  the  family,  the  repurchase 
should  be  exercisable  against  anyone  who  is  a  stranger  to  the 
family  ^  (that  is  to  say,  to  the  lineage  from  whence  the  personal 
belonging  comes).  It  is  directed  against  anyone  who  w^ould  not 
have  the  right  to  it  himself.^  But,  as  we  have  observed,  certain 
Customs  granted  it  also  to  the  nearest  relative  against  one  more 
distant,  although  the  latter  was  not  without  his  right  to  the  re- 
purchase ;  ^  in  the  system  which  prevailed  "  a  lineal  relative  has 
not  a  right  of  withholding  from  a  lineal  relative,"  ^  which  was  a 
more  practical  solution,  but  one  less  justified,  from  the  point  of 
view  of  the  very  old  law,  by  the  idea  that  a  piece  of  property  does 
not  go  out  of  the  family  when  it  is  acquired  by  a  lineal  relative. 

§  346.  The  Same.  —  (V)  The  Repurchase  of  "  half  funds  "  allows 
the  spouse  of  the  lineage  to  withhold  from  the  community  the  per- 
sonal belonging  of  his  lineage  which  has  been  bought  during  the 
marriage,  upon  condition  of  paying  the  half  fund,  that  is  to  say, 
half  of  the  price  which  it  has  cost;  the  year  and  a  day  allowed  to 
exercise  this  right  only  begin  to  run  from  the  time  of  the  dissolu- 
tion of  the  community ;  ^  thus  it  is  a  repurchase  by  a  person  of  the 
same  lineage  put  off  until  the  dissolution  of  the  community. 

§  347.  Procedure.^  —  (I)  Period.  One  can  only  carry  out  a  re- 
purchase within  the  year  and  a  day  "^  dating  from  the  time  of  the 
seisin  being  given  to  the  purchaser;  ^  at  the  end  of  this  time  the 

^  The  repurchase  by  a  person  of  the  same  lineage  is  exercised  even  against 
the  lord  from  whom  the  property  was  received,  and  even  against  the  king: 
Loysel,  425,  432;  "Stil.  Pari.,"  7,  80;  Pothier,  no.  194.  —  Against  the  Church: 
Loysel,  433  et  seq.;  "Olim,"  I,  689,  28  (in  12G7). 

'^  Loysel,  450:  "Marriage  preserves  Lineage." 

3  Beaumanoir,  44,  25;  "T.  A.  C,  Bret.,"  46;  "Touraine,"  163,  etc. 

4  Loysel,  430;  "Gr.  Cout.,"  p.  328;  "Marche,"  271. 

*  Beaumanoir,  44,  48,  49;  "Anc.  Us.  d'Anjou,"  ed.  Marnier,  §  28;  "Paris," 
155-1.57;  Jobb6-Duval,  p.  143.  —  As  to  the  various  kinds  of  half-funds,  c/. 
Guyot.  The  repurchase  in  a  case  of  joint  possession  of  the  Civil  Code,  148, 
applies  to  acquests  as  well  as  to  personal  belongings. 

8  CJ.  details  as  to  the  Customs  of  the  North  in  Giard,  "Thfise,"  p.  257. 

''  See  supra,  "Prescription";  Beaumanoir,  44,  9;  "Jostice,"  p.  128  (proof); 
Desmares,  207;  "Gr.  Cout.,"  p.  329;  "Paris,"  130. 

8  Desmares,  207;  "Cout.  Not^"  145;  Loysel,  462;  "Paris,"  129,  132.— 
Fealty  and  homage  in  the  case  of  fiefs,  seisin  in  the  case  of  copyholds,  publica- 
tion by  means  of  a  judgment  and  registration  of  the  contract  at  the  nearest 
seat  of  the  royal  government  in  the  case  of  freeholds.  The  beginning  of  the 
period  allowed  for  the  exercise  of  the  repurchase  is  thus  found  to  be  sufficiently 

445 


§  347]  OWNERSHIP   AND    REAL   RIGHTS  [Chap.  II 

property  goes  out  of  the  family,  for  the  vendee  enjoys  the  benefit 
of  the  Germanic  prescription  as  against  the  family  of  the  vendor, 
as,  according  to  the  general  rule,  he  can  against  every  other  per- 
son.^ The  duration  of  the  seigniorial  repurchase  is  even  shorter; 
it  can  only  be  exercised  during  the  old  Prankish  term  of  forty  days 
(after  the  producing  of  the  contract);  for  Byzantine  "Protimesis," 
one  had  only  thirty  days.^  According  to  the  "Grand  Coutumier," 
it  was  sufficient  if  the  summons  had  been  served  within  the  year 
and  a  day;  but  Beaumanoir,  who  is  more  strict,  demanded  that 
the  period  which  was  granted  to  the  purchaser  for  presenting  him- 
self in  court  should  be  included  within  the  year  and  a  day,  and  the 
Custom  of  Paris  is  to  the  same  effect.^  The  period  of  a  year  and 
a  day  did  not  originally  begin  to  run  against  people  who  were  ab- 
sent or  against  minors  until  the  time  of  their  return  or  their  coming 
of  age;  in  the  new  law  the  disfavor  with  which  repurchase  is  looked 
upon  causes  this  period  to  run  against  them.*  (II)  Action  at  Law. 
The  repurchase  is  a  true  action  for  recovery  by  the  lineal  rela- 
tive; the  selling  of  family  property  to  a  stranger  brings  into  exist- 
ence this  right,  which  did  not  exist  until  that  time  excepting  in 
a  latent  condition.  If  this  is  so,  it  is  hard  to  perceive  why  the 
purchaser  should  not  yield  to  the  repurchase  without  dispute; 

public  to  give  notice  to  the  people  of  the  lineage  and  allow  them  to  act.  In 
Normandy,  452  et  seq.,  reading  and  publication  of  the  sale;  cf.  Beaumanoir, 
44,  28,  and  the  Flemish  Customs  cited  in  Guyot,  s.  6,  §  2.  With  the  passing 
away  of  the  feudal  formalities  variations  of  these  were  introduced  into  the 
Customs:  (a)  The  beginning  of  the  delay  is  the  real  taking  of  possession  by  the 
purchaser:  "Dunois,"  79;  "Chdrtres,"  67;  "Marche,"  263.  Incomplete  pub- 
licity, but  one  which  may  suffice,  strictly  speaking,  (b)  It  is  the  date  of  con- 
tract of  sale  itself:  "Sens,"  32:  "Auxerre,"  154;  "Orleans,"  363.  This  is  a 
system  which  allows  of  the  hidden  transfer  of  ownership,  but  which  may  very 
often  deprive  the  lineal  descendants  of  their  right  because  they  are  not  aware 
of  the  alienation's  having  taken  place.  The  Edict  of  1704  remedied  this  evil 
by  deciding  that  the  period  could  not  begin  to  run  before  the  registration  of 
the  contract,  as  was  the  usage  in  certain  Customs:  "  F.  de  B6arn,"  "R.  de  Con- 
tractes,"  Arts.  8  and  18;  "Poitou,"  329;  " La Rochelle,"  33.  — See  "Freeholds." 

—  The  prescription  of  thirty  years  if  the  delay  of  a  year  and  a  day  had  not  run, 

—  for  example,  for  lack  of  registration:  Pothier,  no.  484. 

1  In  the  eighteenth  century  all  recollection  of  the  old  tenure  of  a  year  and 
a  day  has  been  lost  and  it  is  sought  to  account  for  this  period  (which  is  an  ex- 
ceptional one  in  the  general  system  of  prescription)  by  means  of  rational  con- 
siderations; it  has  been  made  very  short  in  order  to  I'estrain  the  exercise  of  a 
power  which  is  abnormal.  It  is  undoubtedly,  in  fact,  for  this  very  reason 
that  the  dower  of  a  year  and  a  day  has  been  kept  up  in  this  particular  appli- 
cation of  it. 

2  Loysel,  427,  463;  "Paris,"  40;  "Auvergne,"  23,  3:  three  months,  etc.; 
"Ass.  de  Jdrus.,''  "C.  des  B.,"  c.  33  (II,  260):  seven  days.  Provence,  Edict 
1472  (30  days).  Normandy,  possessions  held  in  burgage:  "Summa,"  125 
(one  day);  "Cout."  of  1583,  454  (40  days);  Genestal,  "Th^se,"  pp.  34,  80. 

3  "Gr.  Cout.,"  p.  329;  Beaumanoir,  44,  31;  "Paris,"  130. 

*  Absent  persons:  "Et.  de  St.  Louis,"  II,  303;  "Jostice,"  8,  9;  Beaumanoir, 

446 


Topic  8 J         FREEDOM   OF   ALIENATING  —  REPURCHASING  [§  347 

but  the  fear  of  frauds  no  doubt  led  jurisprudence  to  demand  a 
formal  proceeding  at  law;  the  voluntary  repurchase  was  looked 
upon  as  a  sale  made  by  the  purchaser  to  the  lineal  relative.^  The 
tribunal  which  had  jurisdiction  in  matters  of  repurchase  was  that 
of  the  locality  where  the  immovable  was  situated,  because  the 
action  was  real.  But  in  the  last  stages  of  the  law  there  is  seen  in  it 
rather  a  mixed  action,  real  against  the  third  party  in  possession, 
and  personal  against  the  purchaser  upon  whom  the  Custom  im- 
poses the  obligation  of  making  restitution;  from  whence  comes  the 
application  of  the  rule  "Actor  sequitur  forum  rei."  ^  The  tribunal 
decrees  the  repurchase  after  having  assured  itself  of  the  existence 
of  the  required  conditions.'  (Ill)  The  strictness  of  the  procedure 
relating  to  repurchase  was,  to  begin  with,  nothing  more  than  a 
consequence  of  formalism ;  but  practice  thought  that  it  was  a  good 
thing  to  preserve  that  which  Ferriere  calls  "  superstitious  formali- 
ties," with  the  object  of  hindering  the  exercise  of  an  institution 
which  was  looked  upon  with  disfavor.  Thus  it  is  that  if  the  peti- 
tioner fails  in  any  one  particular,  not  only  does  he  lose  his  suit, 
but  he  also  loses  the  right  to  the  repurchase.''  (IV.)  Indemnity  due 
by  the  person  repurchasing  to  the  original  vendee.  The  very  same 
day  that  the  repurchase  is  decreed,-^  the  repurchaser  himself,  under 
penalty  of  forfeiture,  pays  the  vendee  the  actual  price  paid  out  by 

16,  5;  "L.  d.  Droiz,"  588.  Crusaders:  P.  de Fontaines,  c.  17;  "Et.  deSt.  Louis," 
I,  156.  Minors:  (a)  P.  de  Fontaines,  c.  14;  Beaumanoir,  44,  48;  "Actes  du 
Pari.,"  I,  no.  2225,  756;  L.  Delisle,  "Echiq.  de  Norm.,"  122,  517.  —  (h)  GHm- 
audet,  9,  17:  public  interest.  —  Delay  of  the  redemption:  "Auvergne,"  23,  13; 
"Berry,"  13,  9.    Contra,  "Ord.,"  366;  Loysel,  464;  "Paris,"  130. 

1  Loysel,  443.  Results:  the  property  acquired  was  not  a  personal  belonging 
included  in  the  inheritance  of  the  lineal  descendants;  two  transfer  taxes  had 
to  be  paid.    Contra,  Beaumanoir,  44,  11,  22,  39,  40. 

^  Beaumanoir,  44,  17:  jurisdiction  of  the  lord  from  whom  the  inheritance  is 
derived  (and  not  of  the  lord  of  the  locality  in  which  the  purchaser  is  domiciled, 
for  "agreement  depends  upon  the  inheritance");  ih.,  44,  38  (indivisibility); 
"Olim,"  I,  897.  —  Tribunal  of  the  locality  in  which  the  immovable  is  situated: 
Desmares,  257;  "Cout.  Not.,"  144;  "Gr.  Cout.,"  p.  335;  Loysel,  435  et  seq.; 
"Ass.  de  J^rus.,"  II,  260,  ed.  B.  —  Pothier,  no.  265;  "Reims,"  198.  —  This 
recent  solution  was  favorable  to  the  purchaser,  but  less  logically  a  consequence 
of  the  repurchase. 

^  Giurd,  "These,"  p.  279:  registration  of  repurchases. 

^  Loysel,  437,  438;  Desmares,  83;  "Paris,"  1.36,  140;  Ferrikre,  on  "Paris," 
141;  Pothier,  no.  273;  Beaumanoir,  44,  22,  33,  35,  p.  5,  41;  "Olim,"  III,  1437, 
71.  —  Even  forfeiture  if  the  adjournment  is  not  drawn  up  in  a  formal  manner, 
if  one  does  not  tender  in  the  proper  terms  a  purse,  funds,  and  a  performance; 
if  the  sergeant  in  giving  notice  has  not  an  open  purse  in  his  hand,  which  at 
first  contains  the  sum  offered  and  later  on  a  single  piece  of  money,  and  if  the 
tenders  have  not  been  renewed  each  day  of  the  proceedings. 

^  Formerly  one  had  until  sunset;  in  the  sixteenth  century  one  has  twenty- 
four  hours  after  the  judgment:  Loysel,  468,  471;  Desmares,  82  et  seq.,  208; 
"Gr.  Cout.,"  p.  340.  Other  delays:  three,  seven,  fifteen  days.  Various  times 
for  the  beginning  of  this  delay. 

447 


§  347]  OWNERSHIP   AND   REAL   RIGHTS  [Chap.  II 

him,^  the  true  costs,^  and  the  necessary  disbursements,  so  as  to  in- 
demnify him  as  completely  as  possible,  in  so  far  as  there  has  been 
no  fraud .^  For  his  part,  the  vendee  relinquishes  the  land  when 
reimbursement  has  been  carried  out  and  restores  therewith  the 
profits  collected  since  the  action  of  repurchasing  was  begun,^  to- 
gether with  an  indemnity  for  deteriorations,  if  there  is  any  occa- 
sion for  it ;  he  must  not,  in  fact,  forget  that  during  the  year  and 
a  day  he  is  not  the  "indefeasible  lord."  ^ 

§  348.  Effects  of  the  Repurchase.  —  The  repurchaser  steps  into 
the  place  of  the  purchaser,  and  there  is  no  cancelling  of  the  sale, 
for  now  the  sale  is  null.  Nor  is  there  any  resale  to  the  repur- 
chaser by  assent  of  the  original  buyer,  for  they  are  held  bound 
to  pay  for  only  one  right  of  transfer,  and  the  rights  created  by 
act  of  the  original  buyer  (servitudes,  mortgages)  cannot  be  set  up 
against  the  repurchaser;  at  the  most,  the  latter  is  held  bound  to 
respect  acts  of  administration  because  they  are  indispensable.® 
The  repurchaser  is  not  the  assignee  of  the  original  buyer;  he 
is  looked  upon  as  having  negotiated  with  the  vendor;  also,  the 
original  vendor  owes  him  the  warranty,  and  the  repurchaser 
can  proceed  against  him  upon  payment  of  the  price  by  means  of 
a  direct  action.  The  original  buyer  seemed  thenceforth  to  disap- 
pear entirely  from  the  operation.  But,  not  satisfied  with  taking 
away  from  him  the  advantages  of  a  transaction  which  had  per- 
haps been  lucrative,  jurisprudence  made  of  him  a  sort  of  com- 
pulsory surety  for  the  man  who  had  despoiled  him;  the  original 
vendor  was  always  authorized  to  claim  as  against  him  the  payment 
of  the  price  of  the  sale;  this  responsibility  of  the  original  buyer  is 

'  The  price  of  the  first  sale,  if  there  have  been  several  successive  sales: 
Tiraquellus,  1,  12,  1,  15  (he  cites  Bartole  and  Balde);  Labbe,  "R.  crit.,"  p.  154. 
If  the  price  was  made  too  high  with  the  object  of  preventing  the  repurchase,  it 
was  the  judge's  duty  to  reduce  it:  Beaumanoir,  44,  36;  "L.  d.  Droiz,"  II,  124, 
571;  "Paris,"  136.  —  In  the  sixteenth  century  the  person  exercising  the  re- 
purchase pays  back  to  the  buyer  the  lord's  due  and  the  tax  on  the  sale;  but 
not  in  the  fourteenth  century.  The  near  relatives  were  often  released  from 
the  pavment  of  these  dues. 

2  Desmares,  213;  "Gr.  Gout.,"  333.    Proof:  "Et.  de  St.  Louis,"  I,  159. 

3  Desmares,  113,  213;  "Gr.  Gout.,"  333;  "Jostice,"  8;  "Et.  de  St.  Louis," 
I,  154;  "Paris,"  146;  "Orleans,"  373;  Pothier,  no.  331.  By  compelling  the 
restitution  of  needful  expenses  frauds  were  facilitated. 

*•  That  is  to  say,  since  the  adjournment  and  offer  of  payment:  "Paris," 
134;  Beaumanoir,  44,  30,  41-44.  The  purchaser  thus  gets  the  benefit  of  the 
issues  of  the  land  until  the  time  when  the  offer  of  payment  is  made  to  him. 

^  Beaumanoir,  44,  30,  34,  41;  Desmares,  214;  Loysel,  470;  "Gr.  Gout.," 
p.  334;  "Paris,"  146. 

^  Valid  leases  in  case  of  good  faith  according  to  some  (Balde,  Tiraqueau, 
Pothier),  and  which  were  always  void  with  regard  to  the  person  exercising  the 
repurchase  according  to  others  (Brodeau,  Duplessis). 

448 


Topic  8]         FREEDOM    OF   ALIENATING REPURCHASING  [§  348 

especially  important  in  the  case  of  sales  for  a  term,  for  example,  a 
sale  in  consideration  of  a  rent  for  life;  as  the  payment  of  the  price 
was  greatly  delayed,  the  repurchaser  had  much  more  chance  of 
becoming  solvent,^  In  sales  for  cash  at  a  fixed  price,  the  buyer 
ran  absolutely  no  risk,  because  he  only  gave  up  possession  of  the 
land  after  having  been  indemnified. 

The  property  which  was  taken  back,  having  been  acquired  for 
a  consideration,  should  have  formed  a  part  of  the  acquests  of  the 
repurchaser;  but  it  was  classed  among  his  personal  belongings,  as 
though  it  had  come  through  an  inheritance,  so  as  better  to  assure 
its  preservation  in  the  family.^ 

1  Dumoulin,  on  "Paris,"  I,  20,  8,  7  and  8;  Pothier,  no.  300;  cf.  "Paris," 
137;  "Reims,"  225,  etc.  The  motive  given  in  order  to  justify  this  solution, 
of  knowing  that,  just  as  every  creditor,  the  vendor  cannot  be  bound  in 
spite  of  himself  to  pay  debtors,  is  already  found  in  i^eawmanoir,  44,  37  ("The 
vendor  shall  not  change  his  pledge  or  his  debts  if  he  does  not  wish  to");  this 
jurisconsult  allows  the  repurchaser  to  have  the  same  time  as  is  granted  to  the 
purchaser,  upon  condition  of  giving  surety,  and  Duvioulin  is  of  the  same  opin- 
ion. Tiraqueau,  1,  18,  32,  decided,  on  the  other  hand,  that  the  purchaser  was 
liberated  as  a  consequence  of  the  repurchase  because  he  was  looked  upon  as 
not  having  been  a  party  to  the  deed:  cf.  "Troyes,"  161;  "Bourbon,"  470; 
Labbe,  "R.  Crit.,"  1855,  p.  145.  According  to  the  old  system  of  the  ofTer  to 
the  next  of  kin,  the  purchaser  also  disappeared  completely;  but  it  does  not  seem 
that  Tiraqueau  and  the  partisans  of  his  ideas  drew  their  inspiration  from  this 
system. 

2  "Paris,"  139;  "Orleans,"  382;  Loysel  454.  Cf.  "Paris,"  133  (Lauriere  on 
this  article)  and  Beaumanoir,  44,  11.  —  By  way  of  a  recompense  to  be  paid 
by  the  heir  of  the  personal  belonging  to  the  heir  of  the  acquest,  at  least  in  the 
more  recent  law. 


449 


349] 


OBLIGATIONS 


[Chap.  Ill 


CHAPTER  THREE 

OBLIGATIONS 

Topic  1.  Gexeral  Ideas. 
Topic  2.  Offenses. 

Topic  3.  Contracts.    Filinkish  Period. 
Topic  4.  Contracts.    Feudal  Period. 
Topic  5.  Nullity  of  Contracts. 
Topic  6.  Some  Particul.ar  Kinds  of  Contracts. 
Topic  7.  Means  of  Enforcement  on  the  Person  and  Per- 
sonal Surety. 
Topic  8.  Execution  upon  Possessions  and  Real  Securities. 


Topic  1.    General  Ideas 


§349.  Number  and  Importance  of 
Contractual  Obligations  in 
Modem  Law. 


§  350.  Characteristics  of  the  Obliga- 
tion in  the  Old  Law. 
§  351.  The  Obligation  in  Modern  Law. 


§  349.  Number  and  Importance  of  Contractual  Obligations  in 
Modern  Law.  —  In  early  times  obligations  were  not  often  met 
with,  and  especially  contractual  obligations.  Reasons  of  a  politi- 
cal and  economic  nature  were  opposed  to  their  becoming  very 
numerous.  (A)  The  majority  of  social  relations  were  regulated  in 
advance,  and  invariably  by  the  Custom;  thus  the  services  which 
to-day  free  farmer  tenants  and  agricultural  laborers  render  to  the 
owner  of  land  were  formerly  received  by  him  from  serfs,  from 
cultivators  or  from  slaves.  Public  order  being  better  assured, 
the  tendency  to  respect  the  rights  of  others  having  been  empha- 
sized, and  knowledge  of  the  law  being  more  widespread  or  more 
easy  to  acquire,  it  has  been  possible  to-day  to  allow  individuals  a 
latitude  which  they  would  not  have  used  to  their  advantage  in 
the  old  times,  even  had  it  been  granted  them.  This  is  one  of  the 
advantages  of  the  System  of  the  State  under  which  we  live,  as 
compared  with  the  family  system  of  the  past.  Contracts  have 
produced  beneficial  alterations  in  the  general  rules  of  the  law, 

450 


Topic    l]  GENERAL   IDEAS  [§  350 

have  accommodated  them  to  every  sort  of  circumstances,  and  have 
removed  them  when  needful  in  order  to  substitute  better  ones  in 
their  place.^  (B)  With  the  free  play  of  individual  will,  contracts 
became  so  numerous  that  they  formed,  if  one  may  say  so,  the 
course  of  our  daily  life.  The  economic  conditions  of  other  times, 
when  each  household  produced  almost  everything  which  was  nec- 
essary for  it  to  have,  did  not  contribute  towards  making  con- 
tracts very  frequent.  In  our  day  division  of  labor  and  the  more 
active  life  constrain  us  to  engage  ourselves  on  every  subject  in  the 
meshes  of  a  mass  of  obligations.  The  conception  of  the  obligation 
has  felt  the  effects  of  this  change;  the  law  has  had  to  become  more 
flexible  and  to  lend  itself  to  the  satisfying  of  these  new  needs. 

§  350.  Characteristics  of  the  Obligation  in  the  Old  Law.  — 
The  very  old  law  only  recognizes  obligations  "ex  delicto."  ^  Even 
the  obligation  which  does  not  spring  out  of  an  offense  presents  the 
same  characteristics  as  a  delictual  obligation;  thus,  when  it  arises 
from  a  contract,  the  debtor  who  does  not  carry  out  his  engagement 
is  considered  guilty;  the  failure  to  carry  out  the  obligation  is 
looked  upon  as  an  offense.^  In  a  similar  case,  the  sum  of  money 
paid  to  the  creditor  constitutes  a  pecuniary  penalty.  Ordinarily, 
it  is  a  higher  sum  than  mere  damages  would  be.  The  contract, 
assuming  it  to  be  the  cause  which  gives  rise  to  the  obligation,  could 
not  do  without  solemnities;  it  assumes  that  two  heads  of  families 
face  one  another;  it  recalls  the  treaties  between  States,  in  which, 
even  at  this  day,  form  is  of  so  much  importance.  Moreover,  the 
ceremonies,  the  gesture  which  is  added  to  the  word,  which  em- 
phasizes it  and  explains  it  to  the  eyes,  corresponded  to  the  mental 
condition  of  other  times;  a  right  without  formalities  would  have 
been  no  better  understood  than  a  religion  without  worship.'' 
These  solemnities  had  the  advantage  of  eliminating  the  questions 
of  intention;  their  meaning  was  fixed,  known  by  everybody,  and 
beyond  discussion.  Also,  the  letter  of  an  agreement  could  be 
adhered  to  just  as  the  brutal  fact  of  a  crime  could  be  avenged 

*  Cf.  Sumner  Maine,  "Ancient  Law,"  French  trans.,  1874,  on  this  passage 
from  the  system  of  status  to  the  system  of  agreements. 

2  Or,  if  one  prefers  a  formula  which  in  the  last  analysis  means  the  same 
thing :  the  offense  gives  rise  to  acts  of  violence,  which  little  by  little  have  become 
changed  into  due  course  of  law:  Wodon,  "Forme  et  Garantie,"  p.  9,  173. 

'  Loening,  " Vertragsbruch  u.  s.  Rechtsfolgen,"  1876;  W.  Sickel,  "Bestra- 
fung  d.  Vertragsbruchs,"  1876.  "The  IMischna"  deals  with  marriage,  and 
then  brings  all  the  rest  of  the  civil  law  under  the  heading  of  damages,  cf. 
Dareste,  "Etudes,"  pp.  27,  79.  • 

*  Heusler,  I,  65;  Zallinger,  "Wesen  u.  Urspr.  d.  Formalismus,"  1898;  see 
Cuzzi,  "Le  Obbligazioni  n.  Diritto  Milan,  antico,"  1903. 

451 


§  350]  OBLIGATIONS  [Chap.  Ill 

without  looking  into  the  question  as  to  whether  it  had  been  com- 
mitted by  reason  of  some  indiscretion  or  intentionally.  The  re- 
sponsibility of  the  debtor  was  involved,  for  the  sole  reason  that 
the  obligation  had  not  been  carried  out;  he  was  just  as  responsible 
if  this  were  due  to  accident  as  he  was  if  it  were  due  to  his  own 
fault.^  A  last  feature  of  the  obligation  was  its  personal  character;  ^ 
it  consisted  almost  in  an  ownership  by  the  creditor  over  the  per- 
son of  his  debtor.  Execution  upon  the  body  itself,  under  its  most 
harsh  forms,  —  for  example,  that  of  slavery  for  debt,  —  was  a 
natural  consequence  thereof;  on  the  other  hand,  the  possessions,  or, 
at  least,  the  immovables  of  the  debtor,  escaped  the  creditor,  be- 
cause in  the  last  analysis  they  belonged  rather  to  his  relatives  or 
his  lord.  Thus  looked  upon  as  a  personal  relation,  the  obligation 
constituted  the  most  frail  of  bonds;  its  value  depended  upon  the 
wealth  and  strength  of  the  debtor;  should  he  die,  it  died  with  him; 
sometimes,  even  the  death  of  the  creditor  wiped  it  out.  In  order 
to  give  some  consistency  to  a  right  which  was  so  hazardous,  it  was 
fortified  by  the  surety  and  the  pledge;  if  one  had  several  debt- 
ors one  had  a  better  chance  of  being  paid,  and  the  pledge  was  a 
payment  in  advance. 

§351.  The  Obligation  in  Modern  Law. — Let  us  reverse  the 
terms,  and  we  shall  have  the  obligation  of  modern  law.  Whether 
it  result  from  a  contract  or  an  offense,  its  object  is  damages.  The 
contract  from  whence  it  is  derived  is  formed  without  any  solemni- 
ties and  always  "solo  consensu."  The  obligation,  from  being  per- 
sonal, as  it  was,  has  become  inheritable.^  Execution  has  been 
shifted  from  the  person  of  the  debtor  to  his  possessions :  "  he  who 
obligates  himself  obligates  what  is  his."    The  responsibility  of  a 

1  Proverbs  having  this  meaning:  Chaisemartin,  pp.  277,  284,  223,  c/.  p.  261; 
"Wis.,"  5,  64;  "Sachsensp.,"  3,  5,  4. 

*  Cf.  Roman  law,  "sponsor,"  "fidepromissor,"  obligation  "ex  delicto," 
actions  "vindictam  spirantes,"  no  assignment  of  claims,  and  no  man  can  make 
stipulations  or  promises  to  be  carried  out  after  his  death.  —  It  seems  hard  to 
reconcile  the  personal  character  of  the  obligation  with  family  solidarity.  These 
two  ideas  ought  to  correspond  to  two  different  phases  of  the  evolution  of  the 
law.  It  became  more  and  more  distasteful  to  bring  into  play  the  solidarity  of 
the  lineage,  when  the  family  lost  its  cohesion.  The  penalty  then  became  per- 
sonal and,  as  far  as  contracts  were  concerned,  formalism  also  had  a  tendency 
to  restrict  the  obligation  to  the  debtor  alone. 

'  It  was  customary  for  the  relatives  of  the  debtor  to  become  sureties  for 
him.  By  this  means  the  debt  passed  to  the  heirs,  or,  to  put  it  better,  they  were 
already  held  bound  during  the  lifetime  of  the  debtor.  Also  it  must  often  have 
happened  that  a  man  bound  himself  "for  himself  and  his  heirs."  C/.  English 
law.  The  promise  at  law  to  pay  »r  to  exonerate  oneself  (which  cannot  be 
done  without  sureties)  is  inheritable:  "Rib.,"  61,  1  {cf.  " litiscontestatio "  at 
Rome:  Dig.,  50,  17,  139). 

452 


Topic    l]  GENERAL   IDEAS  [§  351 

debtor  varies  according  as  there  has  been  fraud,  fault,  or  accident, 
and  according  to  the  interest  which  he  has  in  the  contract.  The 
impersonal  character  which  the  obligation  has  assumed  causes  it 
to  lend  itself  to  combinations  which  were  formerly  unknown,  — 
for  example,  composition,  assignment,  subrogation,  and  represen- 
tation. The  principles  of  the  old  Germanic  and  Customary  law 
are  thus  found  to  have  almost  entirely  given  way  to  the  Roman 
theories.  No  other  portion  of  legislation  has  been  Romanized  to 
this  extent.  Is  this  a  sufficient  reason  for  believing  that  this  evo- 
lution has  taken  place  merely  under  the  influence  of  Roman  law? 
No,  indeed!  No  more  here  than  anywhere  else  has  Roman  law 
been  a  direct  cause  of  juridical  changes.  It  has  not  been  imitated 
in  the  same  way  as  a  pupil  copies  his  master,  in  a  spirit  of  servile 
respect.  Its  action,  which  has  been  great,  has  only  been  exercised 
where  the  ground  was  prepared  for  it,  where  evolution  took  place 
spontaneously  and  independently.  The  Roman  influence  was 
not  responsible  for  the  evolution,  which  would  have  taken  place 
without  it.  But  the  evolution  was  peculiarly  facilitated  by  Roman 
influence,  gaining  therefrom  a  concisely  defined  object,  precise 
formulae,  and  a  fixed  plan;  from  an  obscure  growth,  slow,  uncertain, 
and  groping,  it  became  a  conscious  work.  The  real  cause  of  the 
change  which  led  the  old  law  back  to  the  Roman  theories,  as  far 
as  obligations  were  concerned,  was  the  substitution  (which  we  have 
just  explained)  of  a  contractual  system  for  the  system  of  strict 
custom ;  the  one  accords  with  a  social  state  as  simple  as  that  of  the 
late  Middle  Ages;  the  other  accords  with  societies  which,  like  ours, 
are  more  complex.  And,  in  order  that  this  should  be  realized, 
what  changes  have  been  necessary!  The  disintegration  of  the 
family,  the  independence  and  the  ownership  of  the  individual,  the 
employment  of  coinage,  which  has  become  more  and  more  wide- 
spread and  facilitates  the  obtaining  of  services,  —  do  away  with 
one  of  these  new  facts,  and  the  law  of  obligations  is  turned  topsy- 
turvy.^ 

1  In  modern  law  the  obligation  has  a  tendency  to  consist  of  something  of 
value  which  circulates  in  the  same  way  as  coinage  (consequences  of  trade). 


453 


§352] 


OBLIGATIONS 


[Chap.  Ill 


Topic  2.    Offenses 


352.  Public  and  Private  Oflfenses. 

353.  Offenses    committed    by    One 

Family  against  Another. 

354.  Characteristics  of  the  Offense. 

355.  Criminal  Intent. 

356.  Responsibility  for  the  Act  of  An- 

other.    Damage    caused    by 
Animals  or  Inanimate  Things. 


§  357.  Pecuniary  Composition. 

§  358.  Family  Solidarity. 

§  359.  Damages. 

§  360.  Putting  Outside  the  Law,  and 

its  Varieties. 
§  361.  Concerning  Special    Kinds    of 

Offenses. 


§  352.  Public  and  Private  Offenses.^  —  The  primitive  law  knew 
scarcely  any  public  offenses,  that  is  to  say,  offenses  which  directly 
involved  the  State  and  called  for  a  repression  on  its  behalf.^  Un- 
lawful acts  were  curbed  by  the  disciplinary  power  of  the  head 
of  the  family  when  they  were  committed  within  the  family  by 
one  of  its  members  against  another;  ^  where  they  took  place  be-, 
tween  the  members  of  two  families,  repression  was  exercised  by 
one  family  upon  another  by  way  of  vengeance  or  private  war- 
fare."*  Thus  the  old  penal  law  consisted  in  a  system  of  private 
offenses  and  private  penalties  and  was  not  distinguishable  from 
private  law.  But  little  by  little  public  penalties  were  substituted 
for  private  penalties;  the  State,  stepping  into  the  place  of  the  fam- 
ily, took  upon  itself  the  role  of  redressing  wrongs  which  had  not 
belonged  to  it  in  olden  times;  ^  and,  although  we  still  speak  to- 

*  Cf.  especially  the  Roman  law,  where  the  distinction  is  so  clearly  drawn. 
Blackstone,  IV,  also  contrasts  private  torts  with  pubUc  torts.  Cf.  Pollock, 
"Torts,"  1187. 

2  Tacitus,  "Germ.,"  12:  "proditores,"  "transfugse"  (hanged)  "ignavi," 
"imbelles  corpore  infames"  (drowned  in  mud).  The  coward  is  as  injurious  to 
the  community  as  the  traitor,  and  bravery  is  not  very  often  the  dominating 
characteristic  of  the  "corpore  infamis":  Brunner,  §  146. 

^  Kovalewsky,  p.  311. 

^  Religious  character  of  vengeance,  publicity,  ceremonies  in  case  of  a  par- 
don: Kovalewsky,  p.  234  et  seq. 

^  Maintaining  of  retaliation  as  a  public  penalty  for  a  long  time:  Loysel, 
821.  —  Influence  of  the  Church  on  the  changing  of  the  penal  law:  Hue,  "R. 
de  Leg.,"  1858;  Brunner,  II,  548  and  §  135  (bibl.).  It  goes  into  the  question 
of  criminal  intent  (although  the  Germanic  point  of  view  lasted  for  a  long 
while  in  the  "Penitentials,"  Wasserschleben,  pp.  391,  550),  favors  a  substitu- 
tion of  compo.sition  for  physical  punishment  ("Alf.,"  49,  7:  the  Church  has  a 
horror  of  blood;  penances  for  anybody  who  executes  a  condemned  criminal 
and  for  anybody  who  kills  in  lawful  warfare;  cf.  Viollet,  "Et.  de  St.  Louis,"  I, 
249;  Esmein,  "Melanges,"  p.  369).  It  moderates  the  penalties  by  means  of 
the  right  of  sanctuary  {Brunner,  loc.  cit.;  Loysel,  828),  and  introduces  the 
idea  of  correcting  and  reforming  the  guitly  man  alongside  of  the  ideas  of 
vengeance  and  example  as  a  deterrent.  The  Court  of  the  King,  which  judges 
in  equity,  was  inspired  by  these  ideas  at  a  very  early  time.    Cf.  Pollock  and 

454 


Topic  2]  OFFEXSES  [§  354 

day  of  the  public  vengeance,  it  is  none  the  less  true  that  it  does 
not  act  as  an  avenger,  but  with  the  object  of  maintaining  order 
and  repairing  the  damage  which  has  been  caused. 

§  353.  Offenses  committed  by  One  Family  against  Another.^  — 
Their  repression  has  passed  through  various  stages:  private  ven- 
geance, voluntary  composition,  legal  composition,  and,  finally, 
public  penalties  inflicted  by  the  State.  The  starting  point  of  the 
system  of  repression  for  this  class  of  offenses  was  private  vengeance, 
or  the  "faida";  the  person  who  had  suffered  damage  had  the 
right  to  inflict  upon  the  one  causing  it  another  damage,  just  as  in 
our  day  there  still  take  place  reprisals  between  nations.  In  this, 
in  the  beginning,  there  was  less  of  a  juridical  institution  than  of  a 
natural  reaction  of  the  injured  party  against  the  one  who  had  in- 
jured him,  of  the  one  who  suffers  an  injury  against  the  one  who 
has  caused  it.  It  is  only  with  the  assistance  of  this  primitive  con- 
ception that  we  can  properly  understand  the  peculiarities  of  the 
system  of  compositions  during  the  barbarian  period  or  of  the 
Roman  system  of  private  offenses  (for  example,  the  distinction 
between  a  flagrant  offense  and  an  offense  which  is  not  flagrant, 
in  case  of  theft,  adultery,  etc.).  We  have  seen  above  how  they 
passed  from  the  system  of  the  "faida"  to  that  of  composition;  we 
are  here  only  concerned  with  the  setting  forth  of  the  essential 
characteristics  of  the  obligation  "ex  delicto." 

§  354.  Characteristics  of  the  Offense.^  —  There  is  scarcely  any 
need  of  saying  that  the  old  law  is  very  far,  in  its  conception  of  the 
offense,  from  the  refined  psychology  of  our  day.  In  the  period 
when  this  "law  is  based  upon  a  mere  reaction  against  the  injury 
suffered,  something  which  is  practically  nothing  but  a  reflex 
action,  it  considers  only  the  existence  of  the  external  deed ;  ^ 
"The  act  judges  the  man,"  ^  questions  of  intention  are  not  gone 

Maitland,  II,  460:  Fertile,  V,  29,  598;  "Burg.,"  52,  5;  "Capit.  Worms,"  829, 
1 .  —  As  to  the  influence  of  the  Roman  law,  c/.  Fertile,  V,  39 ;  Beaumanoir,  30, 
1,  61,  etc.;  "Anc.  Cout.  d'Anjou,"  IV,  308;  Boutaric,  I,  29. 

1  Frauensfddt,  "Bhitrache,"  1881;  Wodon,  "JvC  Dr.  de  Vengeance  dans  le 
C.  de  Namur,"  1890;  Cottier,  p.  127  (private  warfare,  assurance,  forswearing); 
p.  53  (retahation);  Dubois,  "These,"  1900  (a.ssurances).  —  On  the  Corsican 
"vendetta,"  cf.  Glasson,  "Inst,  de  I'Anglct.,"  I,  305;  Switzerland  (sixteenth 
century);  Giinlher,  I,  207;  Guyot,  "Un  Example  d'Urfehde,"  1892;  Glasson, 
"Bull.  Comite  trav.  hist.,"  1892;  Ducoudray,  "Origines  du  Pari.,"  p.  325; 
"Unters.,"  by  Gierke,  XXIX. 

2  Terminology:  "culpa,"  "scelus,"  etc.,  "malum  factum"  (misdeed), 
"forefactum"  (crime);  "malus  homo,"  "tortum"  (tort),  "gravamen"  (in- 
jury); later  on  "vilenie,"  "vilain  cas":  Loysel,  803. 

'  "Roth.,"  248,  324;  342,  348,  387;  "Wis.,"  6,  5,  2;  "Burg.,"  6,  2;  "Bai.," 
9,  10;  "Thur.,"  51.    Of.,  however,  "Alam.,"  71. 
*  Loysel,  824. 

455 


§  354]  OBLIGATIONS  [Chap.  Ill 

into.^  The  vengeance  of  the  barbarian  is  as  blind  as  that  of  the 
child ;  it  is  exercised  upon  people  who  are  as  irresponsible  as  minors 
and  madmen,  and  even  upon  families  and  inanimate  beings.^ 
Homicide  caused  by  carelessness  gives  rise  to  the  same  com- 
position as  murder  and  assassination ;  ^  "  Qui  inscienter  peccat 
scienter  emendat,"  says  the  old  adage.^  Lawful  defense  is  not 
an  absolute  excuse;  the  " Sachsenspiegel "  still  imposes  penal  re- 
sponsibility upon  the  man  who  kills  in  self-defense.^  On  the  con- 
trary an  attempt,  and  the  ofTense  which  has  miscarried,  should  not 
be  punished,  however  criminal  may  have  been  the  intention  of  their 
perpetrator.^  Though  the  fellow  perpetrators  and  abettors  (for 
example,  receivers  of  stolen  goods)  are  responsible  for  having  taken 
a  part  in  the  act  or  having  protected  the  malefactor,  it  is  other- 
wise with  accomplices  properly  so  called,  that  is  to  say,  with  those 

1  Bibl.  in  Brunner,  §  125, 138;  Amira,  "O.  R.,"  I,  373,  706;  "Recht,"  p.  192; 
Holmes,  "Common  Law"  (1881),  I,  p.  17;  Wigmore,  "Harv.  Law  Rev.," 
VII,  315  et  seq.;  Kovalewsky,  "Coutume  Contemp.,"  p.  301;  "Unters.,"  by 
Gierke,  IV,  61. 

2  The  various  kinds  of  offenses  give  rise  to  various  kinds  of  solutions, 
which  it  is  difficult  to  reduce  to  a  logical  system.  Cf.  post,  "Fellow  Perpe- 
trators." As  to  recidivity,  see  Cattier,  p.  50.  —  Sometimes  several  offenses 
are  distinguished  from  one  another  in  one  act;  thus  the  man  who  kills  a  woman 
who  is  enceinte  commits  a  double  murder;  a  man  who  kills  his  enemy  after 
having  sworn  to  keep  the  peace  has  to  pay  the  "Wergeld"  for  murder,  loses 
his  right  hand  for  perjury  and  undergoes  the  ban  of  the  king  for  disobedience: 
"Sal.,"  24,  3;  "Roth.,"  75;  "Alf.,"  9;  Sunesen  (in  Schlyter,  "Corp.  juris 
Sueo.  Got.,"  IX),  68;  "Capit.,"  805,  6  (I,  123).  On  other  occasions  only  one 
offense  is  seen  in  these  acts,  but  the  penalty  has  increased;  this  is  what  hap- 
pens in  the  case  of  an  offense  carrying  with  it  violation  of  domicile  or  of  some 
other  place  over  which  a  special  peace  has  been  declared:  "Liut.,"  131,  42; 
"Roth.,"  143.  Compositions  are  accumulated,  sometimes  up  to  a  certain 
price,  sometimes  without  hmit:  "Sal.,"  17,  3,  6;  "Rib.,"  1,  68;'"Fris.,"  22, 
75;  also,  3,  49,  58;  "Roth.,"  46,  61,  78,  103;  Fertile,  §  172. 

3  "Thuring.,"51;  "Capit.,"  819,  c.  15;  "L.  Henr.,"  I,  70,  12,  25;  "Liut.," 
136;  cf.  Du  Boys,  I,  250;  Fertile,  §  170. — Among  the  Hebrews  places  of 
sanctuary  are  open  to  involuntary  homicides:  "Exodus,"  xx.xi,  13;  "Numbers," 
XXXV,  22;  "Deuter.,"  xix,  3. 

*  Frank,  "Casuelle  Totung,"  1800.  In  the  same  way:  "A  sin  committed 
in  drunkenness  is  atoned  for  by  fasting  " :  Chaisemartin,  "  Prov.,"  p.  489.  And 
by  way  of  reaction:  "The  man  who  has  no  knowledge  of  what  he  is  doing 
does  not  sin";  Loysel,  791,  note,  "Larceny  is  not  committed  without  an 
intent  to  steal;"  793,  "He  intends  to  strike  who  kills;"  791,  "The  will  is 
taken  for  the  deed"  (in  cases  like  the  crime  of  high-treason).  In  the  old  law 
one  might  have  said  the  contrary,  —  "The  deed  is  taken  for  the  will " ;  "  T.  A.  C, 
Norm.,"  p.  30:  "He  who  kills  his  lord  is  hanged;  he  who  causes  his  lord's 
death  by  carelessness  is  merely  punished  with  death."  Brunner,  "Forsch.," 
p.  491,  cites  a  Sicilian  law  of  the  twelfth  century  according  to  which  anybody 
who  kills  another  by  jumping  down  from  a  rock  or  by  throwing  the  branch 
of  a  tree  is  punished  with  death.  Cf.  Esmein,  "Hist,  de  la  Proc6d.  Crim.," 
p.  255  (charter  of  pardon);  Pollock  and  Mnitland,  II,  478. 

*  Beaumanoir,  30,  65;  "L.  d.  Droiz,"  500,  997;  Ordinance  of  1368;  Isam- 
bert,  V,  320;  Follock  and  Maitland,  II,  480;  Fertile,  §  174. 

«  Brunner,  §  127  (bibl.);  Cattier,  p.  40;  Fertile,  §  171.  —  Cf.,  however, 
"Sal.,"  17,  28. 

456 


Topic  2]  OFFENSES  [§  355 

who,  without  taking  an  active  part  in  the  act,  have  given  advice 
to  the  agent  or  have  lent  him  assistance  (for  example,  by  keeping 
a  lookout).^  This  crude  system  was  not  merely  in  harmony  with 
the  old  conception  of  the  offense,^  and  with  the  stage  of  moral- 
ity; ^  it  had  the  advantage  of  simplicity  and  relieved  the  judges 
from  the  necessity  of  investigations  for  which  they  had  neither 
the  intelligence  nor  the  impartiality  required.'' 

§  355.  Criminal  Intent.^  —  During  the  barbarian  period  there 
comes  to  light  the  tendency  to  take  into  account  intention  in  the 
estimating  of  an  offense.  Mere  negligence  is  sometimes  likened  to 
a  positive  fact:  "He  who  can  and  does  not  prevent,  offends," 
Loysel  will  say  later  on.  The  offense  committed  through  care- 
lessness ^  makes  liable  to  a  lesser  composition,  sometimes  even  to 
mere  damages;  it  does  not  involve  any  breaking  of  the  peace;  it 
does  not  authorize  private  vengeance.  At  the  same  time  that  the 
principle  that  the  external  deed  is  the  only  one  for  which  a  man  can 
be  punished  is  retained,  exceptions  are  made  to  it.  Certain  offenses 
are  presumed  not  to  have  been  intentional  (death  occasioned  by 

1  Brunner,  §§  128  and  129  (bibl.).  "The  receiver  of  stolen  property  is 
the  same  as  the  thief":  "Sachsensp.,"  II,  13,  6;  Chaisemartin,  p.  491.  Cf. 
the  proverbs:  "To  steal  and  to  hold  the  sack  are  the  same  thing  ";  "One  may 
be  hanged  through  the  company  he  keeps";  Fertile,  §  172. 

2  These  ideas  have  led  to  a  minute  casuistry,  for  example,  peculiar  dis- 
tinctions between  different  kinds  of  wounds.  In  the  Customs  of  the  Middle 
Ages  it  was  still  customary  to  measure  the  length  of  cuts  in  order  to  deter- 
mine the  degree  of  responsibility  of  the  guilty  man.  Thus  in  the  South  the 
simple  cut  is  contrasted  with  the  "plaga  leyau"  or  cut  of  greater  law  (giving 
rise  to  the  payment  of  a  greater  fine).  The  dimension  of  the  latter  is  1  "once" 
in  length  or  depth  ("F.  de  Beam");  the  "once"  is  the  fifth  part  of  an  "empan 
de  canne";  a  "canne"  is  equal  to  1.856  m.  The  "Cout.  de  Soule"  of  1520, 
35,  15,  reproduces  the  official  standard  of  the  Court  of  Lixarre,  which  is  equal 
to  m  in.  The  fine  for  the  legal  cut  was,  in  this  Custom,  66  "sols  morlaas." 
The  "  Fors  de  Bcarn"  of  1554,  "  R.  de  homicidis,"  still  give  curious  details  which 
would  not  have  been  out  of  place  in  a  barbarian  law;  after  having  defined  a 
"plaga  leyau"  they  add:  "alep  es  dit  membre  podal:  caxau  (a  molar)  es 
memo  re  " ;  if  several  molars  are  torn  out  by  one  blow  there  is  only  one  "alep  " ; 
one  finger  of  the  hand,  or  even  one  joint  of  the  finger,  is  a  member;  but  one 
tooth  is  not  a  member.  It  is  not  difficult  to  see  how  these  mathematical 
valuations  carry  us  far  from  our  system  of  imputabifity:  Montesquieu,  "Esprit 
des  Lois,"  14,  14;  Desmaze,  "Hist,  de  la  M6decine  L6gale,"  1880;  Lespy, 
"Diet.  Beam." 

*  At  a  period  when  one  lived  in  the  midst  of  perpetual  snares,  or  when  each 
day  one  had  to  fear  an  ambush,  one  could  not  fail  to  suspect  a  criminal  intent 
behind  something  which  might  have  the  appearance  of  an  accident. 

*  Beaumanoir,  31,  12;  Boularic,  II,  40;  "L.  d.  Droiz,"  II,  463. 

^  Criminal  intent  is  designated  in  the  texts  by  the  words,  "Per  malum 
ingenium,"  "per  invidiam,"  "irato  animo,"  "deasto"  ("Liut.,"  146;  "Roth.," 
277;  "L.  Alam.,"  9);  on  the  other  hand  they  say,  "nolens,"  "casu,"  "negligen- 
tia"  ("Sal.,"  24,  5;  Reginon,  II,  17,  29);  "infortunium."  Beaumanair,  69: 
case  of  chance  and  mischance. 

^  A  culpable  omission,  which  was  etjuivalcnt  to  a  commission:  "Rib.,"  70, 
3,  4;  "Bai.,"  14;  "Burg.,"  18,  2;  "Alfr.,"  36.  —  Loysci,  792. 

457 


§  355]  OBLIGATIONS  [Chap.  Ill 

the  falling  of  a  tree,  the  deed  of  a  minor) ;  ^  in  the  case  of  other 
ofiFenses,  malice  stands  out  as  an  essential  element  of  the  act  (for 
example,  the  incendiary  sets  fire  or  stirs  it  up,^  the  murderer  con- 
ceals the  body  of  his  victim) ;  ^  even  in  these  cases,  as  it  might  hap- 
pen that  the  presumption  was  false,  the  oath  that  he  had  not  acted 
with  criminal  intent  was  demanded  from  the  perpetrator  of  the 
deed.^  Thus  progress  was  made  little  by  little  towards  a  state  of 
law  where  this  intention  is  just  as  indispensable  as  the  material 
fact:  " reum  non  facit  nisi  mens  rea."  ^  " Necessity  knows  no  law," 
says  a  proverb  ®  which  is  inspired  by  this  idea,  and  which  at  the 
same  time  contemplates  la^^'ful  defense  and  the  offense  committed 
in  case  of  necessity,  —  for  example,  by  some  one  who  was  dying 
of  hunger  and  who  took  provender  from  the  field  of  another.  The 
transition  to  the  new  law  is  sometimes  marked  with  as  much 
"naivete"  as  humor:  thus  in  the  case  where  one  man  kills  another 
by  falling  out  of  a  tree,  the  "Lex  Henrici  I,"  90,  7,  only  authorizes 
the  relative  who  persists  in  claiming  the  "Wergeld"  to  do  the 
same  thing  to  the  involuntary  murderer:  "si  placet,  ascendat  et 
ilium  similiter  obtruat."  '^  It  came  about  that  the  attempt  and 
the  offense  which  had  miscarried  were  punished,  because  there 
were  seen  in  certain  applications  of  them  special  offenses  distinct 
from  that  which  there  had  been  an  attempt  to  carry  out.  This  is 
what  was  done  at  all  times  in  the  case  of  blows  and  wounds, 

»  Fertile,  §  174  (bibl.). 

^  Osenhriiggen,  "Brandstiflung,"  1854;  Brunner,  §  141. 

'  "Murdrum"  ("clam  factum")  as  contrasted  with  mere  homicide,  causes 
"palam":  "T.  A.  C,  Norm.,"  p.  64;  Glanville,  8;  Pollock  and  Maiiland,  II, 
485. 

*  Edict  of  Chilperic  5  (c/.  "Sal.,"  35,  36):  an  abandonment  of  the  thing 
causing  the  injury  to  the  injured  person  w-ith  an  oath  on  the  part  of  its  owmer 
"quod  pura  sit  consciencia."  Cf.  the  Lombard  oath  "de  asto";  Exp.  on 
"Roth.,"  202;  purifying  oath:  "Form.  Turon.,"  30. 

6  "L.  Henr.,"  5,  28;  90,  11.  Decree  of  Gratian,  c.  3,  C,  22,  q.  2,  taken 
ivoTo.  Saint  Augustine,  "Sermones,"  no.  180,  c.  2  {Migne,  "Patr.  Lat.,"  38,  974), 
on  the  subject  of  perjury.  Roman  ideas  as  to  fraud  and  fault.  Bracion,  f. 
120  b,  reproduces  a  passage  from  Bernard  de  Pavie. 

8  Loysel,  870.  "Nothwehr,"  "Nothstand"  of  the  German  law:  Pollock 
and  Maitland,  II,  477;  Bracton,  fo.  134,  104  6,  120  h,  126  h.  According  to 
Bracton  the  man  who  has  committed  a  homicide  through  carelessness,  or 
who  has  killed  in  lawful  defense,  must  obtain  pardon:  id.,  Boutaric,  II,  40. 
Cf.  Beaumanoir,  69,  17. 

'  Cf.  "Alam.,  Pactus,"  V,  11:  "If  a  man  is  killed  by  the  dog  of  another 
man  the  owner  of  the  dog  should  pay  half  of  the  composition.  If  the  heir 
demands  the  entire  composition,  his  doors  shall  be  closed  in  such  a  way  that 
he  can  only  go  in  and  come  out  by  a  single  one.  Then  they  shall  hang  the 
dog  9  feet  above  the  threshold  and  leave  him  there  until  he  falls  from  decay; 
and  the  heir  shall  not  come  out  or  go  in  by  any  door,  under  penalty  of  paying 
back  half  of  the  composition."  Qunther,  I,  13  (Abyssinia);  Esmein,  "Hist, 
de  la  Proc.  Grim.,"  p.  255. 

458 


Topic  2]  OFFENSES  [§  355 

when  the  perpetrator  of  the  offense  had  had  the  intention  of  kilUng. 
IMurder  which  had  miscarried  was  treated  as  a  threat  to  kill  and 
punished  in  the  Salic  Law  by  a  composition  of  62  sous  ("seo- 
landefa").^  There  was  also  a  special  composition  for  the  thief 
who  was  caught  in  the  house  of  another,  because  there  had  been  a 
violation  of  domicile  on  his  part.^  Fellow  perpetrators  were  equally- 
exposed  to  private  vengeance,  and,  consequently,  jointly  and 
severally  responsible.^  As  to  the  accomplices  who  lent  assistance, 
they  do  not  seem  to  have  been  punished  at  first,  excepting  in  the 
case  where  offenses  committed  by  a  band  of  malefactors  were  con- 
cerned.'* The  Salic  Law,  t.  42,  provides  for  the  case  of  murder 
committed  in  this  w^ay  with  the  aggravating  circumstance  that 
the  victim  was  taken  unawares  in  his  house;  to  the  murder  is 
added  the  violation  of  domicile,  and  this  gives  rise  to  a  payment  of 
triple  "Wergeld";  three  members  of  the  group  are  responsible  as 
principals;  each  one  of  them  has  to  pay  this  triple  "Wergeld"; 
it  deems  that  three  blows  were  sufficient  to  cause  death,  and  that 
the  full  responsibility  can  only  be  laid  upon  three  persons,  even  if 
the  body  has  more  than  three  wounds ;  but  from  three  others  there 
is  demanded  a  composition  of  90  sous,  and  of  still  another  three 
a  composition  of  45  sous;  they  are  accomplices,  their  responsibil- 
ity is  not  so  great.  From  this  particular  case  the  same  rule  was  ex- 
tended to  other  hypothetical  cases. ^     "He  wounds  enough  who 

1  "Seolan-defa"  means  "animse  oppressia":  "Sal.,"  28,  2:  Hessels,  see 
Table. 

^  Osenbruggen,  "Hausfrieden,"  1857;  Weinhold,  "Deutsch.  Fried,  und 
Freist.,"  1864;  Chaiscmartin,  p.  527:  " ma maison,"  "mon  chateau;"  Brunner, 
§§  130  and  140;  Locning,  "De  Pace  Domestica,"  1865;  Pollock,  "The  King's 
Peace,"  Oxford  Lectures  (French  trans.);  "Introd.  a  I'Et.  de  la  Science 
Polit.,"  1898;  Fertile,  V,  606,  155. 

^  But  they  only  had  to  pay  one  composition  in  a  case  where  there  was 
only  one  offense:  "L.  Henrici,"  I,  49,  7;  "Sal.,"  43;  "Alam.,"  44;  "Fris.," 
14;  "Roth.,"  12,  263;  "  Alfr.,"  31.  It  is  true  that  under  this  system  of  public 
penalties  each  one  of  the  fellow  perpetrators  is  punished  as  though  he  alone 
had  been  guilty.  Private  vengeance  also  takes  place  individually  against 
each  one  of  those  who  have  taken  part  in  the  offense.  See,  for  example,  in  the 
Saga  of  Njal  the  vengeance  of  Kari.  On  the  other  hand,  the  relatives  who 
claim  a  composition,  —  for  example,  the  "Wergeld"  in  ca.se  of  a  murder, — 
could  be  bought  off  by  a  single  payment,  whether  there  had  been  one  or 
several  murderers.  But  from  the  public  law  the  responsibility  for  the  whole 
offense  which  bore  upon  each  fellow  perpcstrator  passed  into  private  law  and 
into  the  matter  of  compositions:  "Rib.,"  18  (read:  "restituant,"  for  the 
"capitale"  should  not  be  restored  several  times):  "L.  Henrici,"  I,  59,  25;  49,  7. 

*  Cf.  details  in  Brunner,  §  128;  "Contubcrnium"  (Vigbce,  "De  Re  Mil.,"  2, 
8);  "Trustis":  "Sal.,"  13,  14,  105;  "Rib.,"  34,  64;  "Alam.,"  34;  "Bai.,"  2, 
3;  4,  22;  "Alfr.,"  29;  "Ina,"  13;  "Thuring.,"  57;  "Roth.,"  19,  379. 

<*  "Sal.,"  71;  "Cap.,"  873,  7;  "Bai.,"  4,  25;  "Pact.  Alam.,"  3,  24;  "Alf.." 
19;  "^thelb.,"  17,  20;  "Roth.,"  .307.  — C/.  Loysel,  794;  "Jostice,"  p.  307; 
Beaumayioir,  31,  7  et  seq.;  30,  92;  Boutaric,  I,  29;  II,  40. 

459 


§  355]  OBLIGATIONS  [Chap.  Ill 

holds  a  foot,"  says  Loysel,  or,  again,  "A  man  gets  hung  because  of 
his  companions."  During  the  Prankish  period,  moreover,  it  is 
only  upon  accomplices  in  acts  of  magic  and  practices  of  sorcery 
that  the  same  penalty  is  inflicted  as  upon  the  principal  perpetrator, 
so  greatly  were  they  feared.  At  first,  accomplices,  because  of  the 
advice  they  gave,  were  only  punished  in  certain  special  cases  (for 
example,  in  case  of  murder  committed  for  the  payment  of  a  price). ^ 
It  is  rather  difficult  to  account  for  the  fact  that  whereas  the  old 
law  leaves  the  accomplices  unpunished,  it  punishes  the  abettors  of 
the  crime  with  extreme  harshness;  the  guilty  man  being  subject  to 
the  vengeance  which  springs  up  between  him  and  the  avenger, 
lays  himself  open  to  being  treated  in  the  same  manner  as  the  latter 
("qui  ilhm  suspicit  similis  est  illi").  "He  is  a  thief  who  robs  a 
thief,"  ^  will  be  said  later  on. 

§  356.  Responsibility  for  the  Act  of  Another.  Damage  caused 
by  Animals  or  Inanimate  Things.  —  According  to  the  old  concep- 
tion, responsibility  for  an  offense  can  be  attributed  to  all  those 
whom  the  perpetrator  is  dependent  upon.  Thus,  the  hundred  and 
the  community  are  responsible  for  the  deeds  of  their  members; 
the  owner  of  a  domain  is  responsible  for  those  who  live  there,  the 
head  of  the  family  is  responsible  for  his  children,  for  his  wife,  and 
for  his  slaves,  and  in  a  general  manner  for  the  people  of  his  house- 
hold; ^  the  master  is  responsible  for  his  animals,  or  even  the  inani- 
mate things  which  belong  to  him.*  But  this  is  a  responsibility 
"  sui  generis,"  — like  to  that  of  the  modern  State  because  of  the  acts 
which  one  of  its  members  might  undertake  against  another  State. 

1  "Fris.,"  2;  "^thelr.,"  8,  23;  "L.  Henr.,"  I,  85,  3;  "Sal.,"  28,  41;  11, 
31, 1  ("Her.");  57,  6  ("emend").  Cf.  "Roth.,"  202,  166;  "Liut.,"63,  72.  Of- 
fenses of  a  slave  committed  at  the  command  of  his  master  or  of  a  tliird  party : 
"Sal.,"  10,  2;  "Wis.,"  7,  2,  6;  "Bai.,"  9,  6;  "Sax.,"  18,  50;  "Roth.,"  322. 

2  He  is  likened  to  the  principal  perpetrator  in  a  case  where  he  is  put  out- 
side of  the  law.  Anglo-Saxon  "Edmund  II,"  1,  2;  "^thelr.,"  I,  4,  2;  III, 
13.  The  Frankish  laws  merely  decreed  a  composition:  "Sal.,"  55,  56,  70, 
106;  "Rib.,"  87;  "Capit."  (ed.  B.),  I,  148,  156,  70.  However,  they  sometimes 
also  pronounce  the  same  penalty:  "Sal.,"  32;  "Dec.  Child.,"  7;  "Capit.," 

I,  171.  Cases  of  theft:  "Rib.,"  73,  78;  "Cham.,"  30;  "Roth.,"  200,  266; 
"Burg.,"  71;  "Bai.,"  9,  15  et  seq.;  "Wis.,"  7,  2,  7.     Loysel,  806. 

^  The  people  of  the  household  did  not  always  have  possessions  of  their 
own;  formerly  everything  which  they  acquired  belonged  to  the  family;  also 
they  found  it  impossible  to  provide  themselves  an  indemnity  for  the  damages 
which  they  caused.  The  responsibility  of  the  head  of  the  family  had  some 
support  in  this  practical  consideration.  It  was  not  admitted  that  he  could 
justify  himself  by  establishing  the  fact  that  there  was  no  fault  with  which 
he  could  be  reproached.     Cf.  examples  in  Huber,  IV,  495,  807;  P.  de  la  Janes, 

II,  400. 

*  Cf.  responsibility  of  the  master  who  employs  a  workman  when  the  latter 
loses  his  life  in  the  service  of  the  former:  "Roth.,"  144  et  seq.,  152;  "L. 
Henrici,"  I,  90,  11;  Wasserschl.,  "Biissordn.,"  p.  549. 

460 


Topic  2]  OFFENSES  [§  356 

It  suffices,  in  order  to  relieve  oneself  of  this  responsibility,  to  turn 
over  the  guilty  person  to  the  victim  of  the  offense  or  to  his  rela- 
tives, for  they  will  then  be  able  to  wreak  the  vengeance  which 
they  demand  upon  him ;  ^  thus  in  the  case  of  a  murder,  during  the 
pagan  period,  the  murderer  was  sacrificed  to  the  manes  of  the 
victim,  and  the  same  treatment  would  be  inflicted  upon  the  animal 
who  had  killed  a  man,  and  upon  the  object  —  a  sword,  a  spear, 
or  anything  else  —  which  had  struck  him.  If  anyone  refuses  to 
make  this  surrender  of  the  thing  causing  the  injury,  he  places 
himself  in  the  same  situation  as  the  perpetrator" of  the  offense;  one 
puts  an  obstacle  in  the  way  of  the  exercising  of  vengeance,  and 
thereby  exposes  oneself  to  it;  ^  the  only  means  of  avoiding  this  is 
to  pay  the  composition  as  though  one  had  been  the  perpetrator  of 
the  deed  oneself,^  although  one  may  have  had  absolutely  no  part 
in  it.  The  abandonment  of  the  thing  causing  the  injury  to  the 
injured  person  '^  is  thus  the  primary  obligation  of  the  master  of  a 
slave  who  has  committed  an  offense,  of  the  owner  of  an  animal  or 
an  inanimate  thing  which  may  have  caused  damage.  Assuming 
that  the  owner  did  not  do  this,  it  was  asked  whether  it  was  not 
going  too  far  to  treat  the  master  like  the  direct  cause  of  the  offense; 
at  the  most,  all  one  could  see  in  this  was  an  analogy  to  an  offense 
committed  by  reason  of  carelessness.  Also,  it  was  admitted  that 
he  was  not  subject  to  a  "faida,"  ^  and  that  he  was  always  author- 
ized to  pay  a  pecuniary  composition;  sometimes  the  ordinary 
composition  was  demanded  from  him,  sometimes  a  portion  of  the 
latter  (one-half,  two-thirds).®  In  the  end,  corporal  punishment 
(the  whip,  the  scourge)  came  to  be  inflicted  in  the  majority  of 
instances  upon  slaves  because  of  their  offenses.  In  the  case  of 
animals  or  inanimate  objects  vengeance  was  practised  in  primi- 
tive times,  first  of  all,  because  he  who  took  vengeance  followed  a 
heedless  impulse,  and  did  not  stop  to  question  whether  the  one 
whom  he  struck  were  responsible,  any  more  than  a  child  asks  him- 

1  "Bai.,"  8,  9;  "Roth.,"  142;  "Sax.,"  18,  53;  "Ina,"  74;  "Burg.,"  20, 
etc.;  "Wis.,"  6,  5,  10  c<  sc^.  Prohibition  of  unilateral  abandonment:  "Cap.," 
803,  c.  5  (I,  117);  "Sal.,"  35,  5;  Edict  of  Chilperic,  5;  Grimm,  "R.  A.,"  604. 

2  Fribourg,  in  "Uechtland,"  ed.  Lehr,  c.  36  (in  1249).  Apropos  of  the 
rule,  "Noxa  capa  sequitur";  cf.  "Rib.,"  70,  1. 

3  "Fris.,"  1,  22;  9.  17;  "Roth.,"  249,  254,  371;  Exp.  on  "Roth.,"  256; 
"Thur.,"  59:  "Omnc  damnum  quod  servu.s  feccrit  dominus  emendet."  Limita- 
tion of  the  master's  responsibility:  Grimm,  3;  "Capit.,"  803,  13  (I,  143). 

^  Girard,  "N.  R.  11.,"  1887,  1888;  "Man  de  Dr.  R.,"  p.  671;  Esmcin,  ibid., 
1900;  Kovalewsky,p.'SOZ. 

*  "Roth.,"  326;  "Rib.,"  46;  "Sachsensp.,"  II,  40,  3.  Consequently,  no 
"fredus":  "  Vieh  verbricht  kein  Gewette " ;  'SSal.,'' 36. 

6  "Roth.,"  142,  249;  "Liut.,"  21;  "Bai.,"  8,  2;  "Fris.,"  1,  13. 

461 


§  356]  OBLIGATIONS  [Chap.  Ill 

self  when  he  breaks  the  branch  which  he  has  run  against  if  it 
deserves  or  does  not  deserve  to  be  punished;  rehgious  ideas  were 
not  long  in  becoming  mingled  with  this  instinctive  procedure;  the 
animal  which  has  killed  is  sacrificed,  the  object  which  has  caused 
death  is  appropriated  to  sacred  uses.  The  public  penalties  against 
animals,  which  lasted  for  a  long  time  in  our  old  law,  have  no  other 
origin;  and  the  biblical  recollections  from  which  they  are  often 
derived  only  contributed  towards  their  being  kept  up.  Beaumanoir, 
while  blaming  it,  makes  mention  of  the  custom  of  putting  animals  to 
death  (09,  6) :  "  If  a  sow  kills  a  child,  they  (the  lords  justices)  hang 
it  or  drag  it  .  .  .  but  this  should  not  be  done,  for  dumb  brutes 
have  no  understanding  of  what  is  right  and  what  is  wrong,  and  for 
this  reason  is  justice  thrown  away."  ^  This  reasoning  did  not  have 
very  much  effect  upon  the  judges  of  his  time;  in  the  fourteenth  or 
fifteenth  century  it  was  not  a  rare  thing  to  see  these  criminals  of  a 
particular  kind  burned  or  hung  in  effigy.^  In  England  they  still 
admitted  in  theory,  in  1846,  that  every  animal  or  every  inanimate 
thing  which  caused  the  death  of  a  man  should  be  devoted  to  pious 
uses,  so  as  to  appease  the  anger  of  God  ("  deodand  ").  —  But,  as 
a  general  rule,  these  old  customs  disappeared;  the  owner  of  an  ani- 
mal ^  or  of  an  inanimate  object  ^  which  caused  damage  (collapse 
of  a  house,  etc.),  was  held  liable  to  make  a  pecuniary  reparation, 
without  being  able  to  escape  from  it  by  means  of  giving  it  up.^ 
§  357.    Pecuniary  Composition  originally  was  only  the  buying 

1  Beaumanoir,  69,  6;  "Et.  de  St.  Louis,"  I,  125  (ed.  V.,  p.  233);  Boutaric, 
I,  38;  Tanon,  "Reg.  Crim.  de  St.  Martin-des-Champs,"  p.  554;  Michelet, 
"Orig.,"  p.  354;  Kovalewsky,  p.  302.  —  "Deodand"  ("dentur  pro  Deo"), 
cf.  Bracton,  f.  122;  "Fleta,"  p.  37;  Pollock  and  Maitland,  II,  471  (bibl.). 

2  "Genesis,"  ix,  5;  "  Exodus,"  xxi,  28-32;  "Lois  de  Platon,"  12,  936;  Demos- 
thenes, "in  Aristoc,"  18;  Ayrault,  "Ordre  judic,"  1,  IV;  Sorel,  "Proces  c. 
les  Animaux  en  Picardie,"  1877;  Menabrea,  "Jug.  rendus  c.  les  Animaux," 
1846;  Berriat-St.-Prix,  "Rech.  s.  les  Proces  faits  aux  Animaux"  (from  1120 
to  1741);  Du  Boys,  op.  cit.  V,  56;  Glasson,  VI,  650.  Cf.  especially:  Amira, 
op.  cit.  Cf.  "Penetentiels,"  I;  Addosio,  "Bestie  Delinquenti,"  1892;  D  Arhois 
de  Juhainville,  "R.  Q.  H.,"  V,  275  (Excommunication  of  Animals);  Esmein, 
"N.  R.  H.,"  1900,  5  ("Abandon  noxaP'). 

'  Cf.  the  German  proverb,  "Kein  Vieh  verbiisst  Gewette";  that  is  to  say, 
no  fine  is  to  be  paid  for  damage  caused  by  an  animal;  it  is  sufficient  if  the 
owner  give  an  indemnity  to  the  victim.  The  word  "Gewette"  or  "Wedde" 
contemplates  the  pledge  that  the  accused  had  to  give  the  judge  to  provide  for 
the  possibility  of  his  being  convicted:  "Pactus  Alam.,"  3,  16  (dog  suspended 
over  the  door);  Gui  Pape,  IX,  238  ("De  poena  bruta").  As  to  damages 
caused  to  the  crops  by  animals  and  the  "pignoratio,"  cf.  post,  "Execution." 

*  "Sax.,"  58  ("fossa,"  "laqueus");  "Thur.,"  61;  "Rib.,"  70;  "L.  Henrici  I," 
87,  2;  "Alfr.,"  19. 

"  "A.C.,  d'Anjou,"  I,  163;  "L.  d.  Droiz,"  nos.  119,  228;  Gla.sson,  VI,  653. 
—  Cf.  Ferrihre,  see  "Dommage";  Argou,  III,  39;  Pothier,  "Oblig."  121; 
Civil  Code,  1382  et  seq.;  Josserand,  "Respons.  des  Choses  inanimdes,"  1891; 
"R.  crit.,"  XX,  182. 

462 


Topic  2]  OFFENSES  [§  358 

off  of  vengeance,  the  ransom  of  the  guilty  man,  the  price  of  the 
peace  which  the  victim  and  his  family  allowed  the  perpetrator  of 
the  offense  and  his  relatives.^  Hence  it  must  contain  two  ele- 
ments: damages,  and  a  penalty,  for  it  would  have  been  very 
difficult  for  people  to  be  content  with  a  mere  indemnity  exactly 
equal  to  the  damage  caused;  in  many  cases,  moreover,  the  reckon- 
ing of  the  damage  is  not  easy."  When  composition  was  put  in  the 
form  of  a  tariff'  by  custom  and  became  obligatory,  it  did  not 
change  in  its  nature.  It  sometimes  happened,  however,  that  the 
"poena"  and  the  damage-money  were  to  be  distinguished;  thus,  in 
the  Frankish  law  the  thief  is  held  liable  for  a  composition  which 
is  entirely  penal,  independent  of  the  "capitale,"  that  is  to  say, 
of  the  restitution  of  the  thing  stolen  or  its  value,  and  from  the 
"dilatura"  or  "wirdira,"  that  is  to  say,  the  interest  accrued  by 
delay.  The  "fredus,"  and  the  composition  properly  so  called,  only 
correspond  in  a  certain  measure  with  the  "poena"  and  the  "res" 
of  the  Roman  law;  the  distinction  had  already  been  made  in 
Tacitus,  "Germ.,"  12:  "pars  multse  regi  vel  civitati,  pars  ipsi  qui 
vindicatur  vel  propinquis  ejus  exsolvitur."  ^ 

§  358.  Family  Solidarity.  —  An  offense  brought  into  play  family 
solidarity;  the  relatives  of  the  victim  helped  the  latter  to  take 
vengeance  upon  the  guilty  person,  or  acted  by  themselves,  if 
necessary;  conversely,  vengeance  could  be  lawfully  exercised,  not 
only  against  the  guilty  party,  but  against  his  relatives;  the  two 
families  were  in  a  state  of  warfare.  "  Suscipere  tam  inimicitias  seu 
patris  seu  propinqui  quam  amicitias  necesse  est,"  says  Tacitus,  12. 
Hence  it  was  logical  to  allow  to  the  relatives  of  the  victim  a 
portion  of  the  composition,  or,  at  least,  of  the  "Wergeld"  ("re- 
cipit  satisf actionem  uni versa  domus,"  ib.),  and  on  their  side  the 
relatives  of  the  "faidit"  were  liable  to  pay  a  part  of  this  sum.^    If 

*  Thus,  if  vengeance  were  carried  out  there  was  no  occasion  for  the  com- 
position. Cf.  the  old  proverbs:  "By  death  one  is  acquitted  ('wettet')  by  the 
judge  and  one  indemnifies  ('busset')  the  complainant";  "For  a  crime  one 
can  neither  seize  body  nor  goods";  Loysel,  81;  Chaisemartin,  p.  495. 

^  The  damage  caused  was  taken  into  account;  for  example,  the  finger 
which  releases  the  arrow,  the  single  eye  of  a  one-eyed  man,  the  hand  of  the 
harp  player,  all  have  a  higher  price.  The  social  status  of  the  victim  of  the 
offense  is  another  element  which  is  taken  into  account.  Often  the  composition 
is  so  high  that  it  is  difficult  for  many  people  to  pay  it.  "Roth.,"  74  (higher 
prices  than  formerly  with  the  object  of  checking  the  "faida").  The  indemnity 
substituted  for  retaliation  according  to  the  Mosaic  law  includes  several 
headings:  damage,  pain,  doctor's  expenses,  prevention  of  work,  shame. 

'  "Fredus"  has  given  in  French  the  word  "frais,"  which  is  used  in  legal 
language;  for  example,  "frais  et  depens"  (expenses  and  disbursements).  Cf. 
"bannus"  (to  the  State). 

*  The  law  of  the  Thuringians  shows  that  there  was  a  connection  between 

463 


§  358]  OBLIGATIONS  [Chap.  Ill 

they  found  this  responsibiUty  too  heavy,  it  was  absolutely  neces- 
sary that  they  should  break  the  bond  of  relationship.  This  took 
place  by  means  of  symbolical  ceremonies  similar  to  those  which 
the  Salic  Law  describes  in  Title  60,  "De  eo  qui  se  de  parentilla 
tollere  vult,"  ^  by  breaking  four  rods  of  alder  over  the  head  before 
the  whole  "mallus"  and  declaring  at  the  same  time  that  thence- 
forth there  would  be  nothing  in  common  between  them,  neither 
"hereditas"  nor  oath.^  On  its  side,  the  family  had  no  doubt  the 
right  to  repudiate  those  of  its  members  who  compromised  it  too 
much.^  With  the  disintegration  of  the  primitive  family  and  the 
extension  of  the  part  played  by  the  State,  responsibility  for  of- 
fenses became  individual :  ■*  "  All  offenses  are  personal,  and  one 
has  no  guarantor  in  criminal  matters";  they  also  say,  "The  plea 
of  a  dead  man  is  dead  "  (Loysel,  797).^     Its  legal  effects  gone, 

the  right  to  the  "Wergeld"  and  the  obligation  to  contribute  to  the  payment 
of  this  sort  of  composition.  Cf.  "Bai.,"  8,  20;  "Sax.,"  2,  6;  "Sal.,"  62;  "Rib.," 
12.  67;  "Roth.,"  2.  As  to  the  celebrated  title  of  the  Salic  Law,  58,  "de  chrene- 
cruda,"  see  Geffcken;  abolition  of  the  "chrenecruda"  by  the  "Dec.  Childeb.," 
5.  —  See  "Olim,"  II,  428,  in  1278;  Chaisemartin,  p.  480;  Cattier,  p.  183. 

1  "L.  Henrici  I,"  88,  13. 

2  This  formality  has  been  accounted  for  in  various  ways.  Thus,  according 
to  Thevenin,  "N.  R.  H.,"  1880,  88,  by  breaking  three  rods  one  destroyed  one 
after  the  other  the  triple  community  of  oath,  inheritance  and  interests  estab- 
lished by  the  relationship.  But  all  the  Mss.  of  the  Salic  Law  excepting  one 
speak  of  four  rods,  and  not  of  three,  and  the  number  four  corresponds  to  the 
four  "anguh"  of  the  "mallus"  into  which  one  should  throw  the  remains  of 
the  "fustis."  To  break  four  rods  and  throw  each  one  to  one  side  is  to  renounce 
relationship  in  an  absolute  manner  in  every  sense.  Cf.  especially  Moller, 
"Z.  S.  S.,  G.  A.,"  1900,  28.  One  will  find  in  this  article  the  principal  cases  in 
which  was  applied  this  breaking  of  the  rod.  In  a  case  of  putting  outside  of 
the  law  and  condemnation  to  death  this  custom  symbolizes  the  breaking  of 
ev^ery  legal  tie  and  of  everj-  legal  community.  It  is  the  same  thing  in  the  case 
of  the  degradation  of  an  ecclesiastic.  At  the  death  of  the  king  there  is  a  break- 
ing of  the  rod  by  certain  officers  of  the  household  (to  break  the  rod  of  the  house, 
to  break  the  house,  —  that  is  to  say,  to  dismiss  the  people).  To  break  straw 
with  somebody  means  to  disengage  oneself  from  the  feudal  tie  and  even  from 
every  contractual  tie:  Moliere,  "Depit  Amoureux,"  4,  4.  From  this  comes  the 
expression,  "Rompre  avec  quelqu'un"  (to  break  with  some  one),  which  means 
to  cease  all  relations  with  him.  In  feudal  investiture  they  sometimes  broke  a 
rod  or  a  knife.    Cf.  Isidore,  "Orig.,"  V,  24. 

^  "Fourjur"  in  Hainaut:  Kovaleivsky,  p.  311:  "The  head  of  the  clan  ban- 
ishes anj^one  who  disturbs  the  peace  of  the  clan  " ;  from  this  comes  the  formation 
of  a  class  of  men  without  family  ("Abreks"):  Ragueau,  see  "Forjurer." 

*  "Dec.  Childeb.,"  II,  c.  5;  "Roth.,"  25;  "Exodus,"  xx,  5:  ".  .  .  God, 
visiting  the  iniquity  of  the  father  upon  the  sons  unto  the  third  and  fourth 
generation";  Greg.  Tours,  VII,  21;  "Deuter.,"  xxiv,  16:  " The  fathers  shall  not 
be  put  to  death  for  the  sons,  nor  the  sons  for  the  fathers." 

'  Exception  in  the  case  of  the  more  serious  crimes,  such  as  that  of  high 
treason;  the  sentence  was  pronounced  and  executed  even  upon  the  corpse. 
Cf.  Ayrault,  "Ordre  Judic,"  book  IV.  In  a  more  general  way,  depriving  a  man 
of  burial,  annulling  his  will,  and  a  few  other  penalties  only  took  effect  after 
death.  On  the  contrary,  civil  trials  continued  after  the  death  of  the  parties, 
at  least  since  the  Ordinance  of  1359:  Fertile,  §  176;  Bregeault,  "N.  R.  H.,"  Ill, 
619. 

464 


Topic  2]  OFFENSES  [§  359 

the  solidarity  of  the  family  was  thus  reduced  to  a  moral  stigma, 
at  the  most.^ 

§  359.  Damages.^  —  Little  by  little,  the  majority  of  offenses 
gave  rise  to  corporal  or  disgracing  penalties  which  were  inflicted 
by  the  State.  But,  such  was  the  force  of  old  customs  that  the 
buying  oflf  which  was  made  use  of  in  the  case  of  private  penalties 
was  applied  even  to  public  penalties;  Loysel  was  able  to  say,  836: 
*'  He  is  not  flogged  who  does  not  wish  to  be,  for  he  who  can  pay  in 
money  does  not  pay  with  his  body."  ^  On  the  other  hand,  prose- 
cution, having  a  tendency  towards  public  repression  inflicted  by 
the  State,  was  for  a  long  while  left  to  individual  initiative.^  To 
bring  the  accusation  is  a  right  and  a  duty  for  the  nearest  relative;  '" 
if  there  is  no  accusation,  there  is  no  judgment  and  no  penalty,  just 
as  though  the  State  only  took  upon  itself  the  task  of  helping  the 
individual  and  carrying  out  the  vengeance  which  the  latter  was 
not  strong  enough  to  realize,  by  himself  or  even  with  the  assist- 
ance of  his  relatives;  this  is  the  salient  characteristic  of  the  so- 
called  system  of  procedure  by  way  of  accusation.  At  the  same 
time,  the  victim  of  the  offense  had  the  right  to  demand  the  repar- 
ation of  the  injury  which  he  had  received;  instead  of  a  fixed  sum 
like  the  composition,  he  received  an  indemnity  in  proportion  to 
the  damage  sustained;  the  claim  "ex  delicto"  which  he  had  for 
this  purpose  was  distinguished  from  the  right  of  punishing  which 
was  reserved  to  society  in  prohibiting  acts  of  violence.  Also,  we 
read  in  Loysel,  832 :  "  Messire  Pierre  de  Fontaines  ®  writes  that 
penal  actions  cannot  be  brought  ;  merely  the  things  must  be 
given  back,  with  a  fine  to  the  lord.  This  is  what  is  meant  by: 
'To  every  misdeed  there  befalls  but  a  fine.'" 

1  In  Germany,  until  1732,  the  trade  corporations  refused  to  admit  the  chil- 
dren of  those  who  had  undergone  any  disgraceful  sentence:  Marnier,  "Etabl. 
de  Norm.,"  p.  44.  After  the  outrage  committed  by  Damiens  his  relatives  were 
ordered  to  change  their  name. 

2  Du  Cange,  see  "mendum,"  "emenda";  Heusler,  I,  62. 

^  Example  in  Brunner,  II,  599,  616  ("manum  perdat  aut  redimat").  Again, 
in  the  time  of  St.  Louis  it  is  not  a  rare  thing  for  procedure  on  the  occasion  of 
an  offense  to  terminate  by  a  compromise  between  the  parties;  the  transaction 
is  ratified  by  the  officers  of  the  king:  "Vie  de  St.  Louis  par  le  Confesseur  de 
la  Reine  Marguerite,"  c.  18;  Loysel,  360,  795. 

*  Chaisemartin,  p.  508:  the  outcry  is  the  beginning  of  the  complaint. 

*  The  "tair"  among  the  Arabs,  the  "goel"  among  the  Hebrews:  Kovalew- 
sky,  p.  240. 

^  P.  de  Fontaines,  15,  52;  cf.  Beaumanoir,  30  et  seq.;  "Jostice,"  p.  275  et 
seq.;  Boutaric,  I,  28,  29,  35;  "Gr.  Gout.  Norm.,"  67.  Cj.  England:  Pollock 
and  Maitland,  II,  457,  510  (trespass,  meaning  "transgressio,"  but  it  is  a  "trans- 
gressio"  which  does  not  amount  to  a  felony).  The  action  of  trespass  originally 
was  based  on  a  damage  caused  to  the  complainant  in  his  body,  his  possessions 
or  his  land,  by  force  and  arms  and  against  the  peace  of  the  king. 

405 


§  300]  OBLIGATIONS  [Chap.  Ill 

§  3G0.  Putting  Outside  of  the  Law,  and  its  Varieties.  —  Of- 
fenses against  the  State  were  only  punished  in  the  old  Germanic 
law  with  one  penalty,  the  putting  outside  of  the  law,  which  affected 
both  body  and  possessions  at  the  same  time.^  Everybody  ought 
to  attack  the  guilty  man,  who  was  looked  upon  as  a  public  enemy, 
or  as  a  wild  beast;  he  only  escaped  death  by  wandering  into  the 
woods  or  fleeing  abroad.^  His  house  was  burned,  his  land  ravaged 
or  confiscated,^  according  to  the  period,  —  ravaged,  in  the  epoch 
when  the  land  was  divided  up  every  year,  and  confiscated  at  the 
epoch  when  individual  ownership  came  into  existence.  In  the  case 
of  a  flagrant  offense  the  putting  outside  of  the  law  was  incurred  as 
matter  of  law;  if  the  malefactor  was  not  taken  in  the  act,  it  was 
necessary  for  the  public  authority  (the  Frankish  king  during  the 
first  two  dynasties)  to  proclaim  this  fact.^    This  fearful  penalty  be- 

^  Cf.  in  the  German  Middle  Ages,  the  placing  under  the  ban  of  the  Empire. 

2  If  the  penalty  of  death  was  not  first  of  all  a  religious  act  it  became  so: 
"L.  Fris.,"  XII  (penalty  for  sacrilege).  Also  they  sometimes  hmited  themselves 
to  exposing  the  guilty  man  to  death,  by  leaving  to  the  gods  the  responsibility 
of  pronouncing  themselves  as  to  his  fate;  he  was  abandoned  upon  the  sea  in  a 
boat  without  oars  and  without  rudder  {Grimm,  "R.  A.,"  701);  they  hanged 
him,  but  in  such  a  way  that  death  did  not  take  place  immediately  (c/.  the  ex- 
pression, "hanged  until  death  takes  place  "):  "Sal.,"  68;  "Capit.,"  808,  2  (I, 
139).  He  whom  the  execution  has  failed  to  kill  should  be  pardoned,  because 
the  gods  have  not  accepted  the  sacrifice,  —  "  Nobody  is  hanged  twice  ,  Chaise- 
martin,  p.  204.  On  the  other  hand,  who  does  not  know  the  virtues  of  the  rope 
that  has  hanged  a  man,  of  the  hand  of  glory?  that  is,  the  hand  of  a  man  who 
has  been  hanged  that  has  been  salted  and  dried,  —  corruption  of  the  word 
into  "mandragore":  Cosquin,  "Contes  popul.  de  Lorr.,"  I,  184;  G.  de  Nerval, 
"La  Main  enchant^e";  "A.  C,  Bord.,"  46.  The  body  of  a  suicide  or  of  a  man 
who  died  a  natural  death  had  absolutely  no  properties  of  this  kind.  The 
refusal  of  an  honorable  burial  is  still  connected  with  pagan  ideas  (post,  "Exe- 
cution"). The  oldest  executioner  was  the  pagan  priest.  Absoluteh'  no  dis- 
honor was  connected  with  this  office.  Perhaps  this  must  be  accounted  for  by 
the  proverb,  "That  which  the  executioner  can  get  belongs  to  him";  Chaise- 
martin,  p.  204.  Moreover,  death  might  be  inflicted  by  the  community  (for 
example,  stoning;  in  Norway,  after  having  shaved  and  tarred  and  feathered 
the  head  of  the  guilty  man,  who  fled  under  a  hail  of  stones)  or  by  a  relative 
("Sal.,"  70;  Grimm,  "R.  A.,"  674):  Brunner,  §  114;  Claeys,  "Le  Bourreau  de 
Gand,"  1891;  Pagart  d' Hermansart,  "  —  deSt.-Omer,"  1892;  Lvdwig,  "Arch.  f. 
Kath.  Kirch.,"  1893  ("Sacrilege"). 

'  Burniiig  and  leveling,  during  the  feudal  period,  are  a  survival  of  the  old 
penalty;  they  destroy  the  house  of  the  guilty  man  by  fire  or  by  demolishing 
it:  "Olim,"  I,  538,  etc.:  Viollet,  "Et.  de  St.  Louis,"  II,  36;  III,  p.  291:  the 
Convention  commanded  the  demolishing  of  the  house  of  the  Girondist  Burzot, 
and  the  Commune  that  of  M.  Thiers.  These  are  remarkable  instances  of  an 
instinctive  return  to  barbarism,  and  they  would  suffice,  if  there  were  not  many 
other  proofs,  to  show  us  that  we  are  less  far  removed  from  it  than  we  are  in 
the  habit  oi  thinking:  Fertile,  §  186;  Cattier,  p.  83;  Beunecke,  "Strafverf" 
(Flanders,  twelfth  and  thirteenth  centuries),  1886. 

*  "Extra  sermonem  regis  ponere."  The  placing  outside  of  the  law  resulted 
from  a  solemn  and  judicial  act;  the  usual  formalities  consisted  in  the  ex-tin- 
guishing  of  a  torch  and  the  act  of  breaking  to  pieces  a  rod,  etc. :  Brunner,  II, 
466  (bibl.);  Schroeder,  p.  77. 

466 


Topic  2]  OFFENSES  [§  360 

came  milder  and  was  split  up,  giving  birth  in  the  course  of  its  dis- 
integration to  a  series  of  important  institutions.  It  became  milder 
among  the  Scandinavians,  where  the  guilty  man  was  granted  time 
in  which  to  take  flight;  ^  among  the  Franks,  where  it  degener- 
ated into  a  temporary  measure,  the  "foris  bannitio,"  pronounced 
against  the  absconder,  who  very  often  only  absconded  because  he 
had  a  guilty  conscience,  "He  who  flees  judgment  condemns  him- 
self." In  various  respects  the  condition  of  the  man  who  is  ban- 
ished resembles  that  of  the  outlaw;  in  other  respects  it  differs  very 
much  from  it;  anybody  can  take  him  with  the  object  of  arraigning 
him  before  the  judge;  it  is  forbidden  to  shelter  him  or  to  give  him 
nourishment;^  he  is  temporarily  deprived  of  his  possessions;  but 
nobody  has  a  right  to  put  him  to  death.  From  the  end  of  the 
ninth  century  "  f orbannitio "  is  no  longer  applied,  excepting  in 
cases  of  absconding  after  the  commission  of  a  crime.  And  even  in 
this  case  it  finally  ceases  to  have  the  same  effect  which  it  had 
formerly;  witness  the  maxim  of  Loysel,  871:  "According  to  the 
old  law  of  France,  the  absconder  lost  his  cause,  were  it  good  or 
bad,  civil  or  criminal.  To-day  one  must  justify  one's  demand." ' 
From  this  placing  outside  of  the  law  there  were  evolved,  so  as 
to  constitute  special  penalties,  all  the  more  easily  as  the  Roman 
law  here  furnished  precedents:  (A)  death,^  exile  under  its  various 

»  "Inducise  libertatis":  Gragas,  I,  p.  83:  "Saga  de  Nial "  ("Hist,  de  Gun- 
nar  ");  Sunesen,  132;  "Sal.,"  55,  2;  "Stadtr.,"  of  Vienna  in  1221,  c.  1. 

2  The  "forisbannitio,"  pronounced  by  the  count  and  not  by  the  king,  which 
is  the  placing  outside  of  the  law,  carried  with  it  the  "meziban  '  and  the  "inter- 
dictio  cibi":  "Cap."  809,  c.  3;  801-13,  c.  13  (1, 148,  172);  Keirsey,  873,  c.  1. 
During  the  feudal  period  the  "forbanni"  is  no  longer  allowed  to  plead  and 
reply  in  court;  nor  can  he  appear  in  court  nor  give  testimony;  his  goods  are 
confiscated:  P.  de  Fontaines,  13,  6-22;  "  Jo.stice,"  III,  6;  XIX,  37;  Beaumanoir, 
34,  32;  30,  36;  61,  23;  "Olim,"  I,  1016;  "Et.  de  St.  Louis,"  I,  28  (c/.  ed.  Viollct, 
1,47);  "T.A.C.,  Norm.,"  p.  98  (ed.  T.);  Marnier,  "Etabl.  de  Norm.,"  pp.  123, 
182,  195;  see  Ragueau.  —  Custom  of  banishing  on  the  "hart";  that  is  to  say, 
they  will  hang  anybody  who  is  found  breaking  the  ban:  Beaumanoir,  61,  19; 
"Art.,"  44,2.  C/.  Tardif,  "Proc6d.,"pp.  149,  156;  "B.Ch.,"  11,99  (Jamin).— 
Outlawry  in  England  also  became  a  form  of  procedure  against  the  defaulter. 
Pollock  and  Maitland,  II,  457;  Pertile,  §  185. 

'  Chaisemartin,  p.  522;  cf.  p.  513  (safe  conduct). 

*  Brunner,  §§  131.  132  et  seq.  (detailed  bibl.);  D'Olivecrona,  "La  Peine  de 
Mort,"  1868.  Penalty  of  death:  hanging  ("bargus,"  "furca,"  "patibulum") 
for  men;  drowning  ("necare"),  especially  for  women  (thirteenth  and  fourteenth 
centuries,  burying  for  reasons  of  decency,  Tardif,  "Proc6d.,"  155),  stoning, 
beheading,  burning  to  death,  the  wheel,  etc.  Brunner,  II,  601.  The  corjioral 
punishments  are  horrible  and  quite  varied:  "detruncatio"  or  "semalio," 
running  the  gauntlet  {Tacitus,  "Germ.,"  19;  "Liut.,"  141;  "Wis.,"  6,  2,  3) 
scourge  or  the  lash,  scalping  (sometimes  the  head  is  shaved  in  such  a  way  that 
the  guilty  man  resembles  a  slave,  sometimes  he  is  scalped  or  his  hair  is  torn 
out  with  the  skin  of  his  head),  branding  with  a  red-hot  iron,  etc.:  Desniazes, 
"Les  Penalitds  anciennes,"  1861;  "U.  hist.,"  I,  84.     Observe  that  penalties 

467 


§  3G0]  OBLIGATIONS  [Chap.  Ill 

forms/  penal  slavery,  and  imprisonment;^  (B)  the  confiscation  of 
property,  "missio  in  bannum  regis,"  which  had  a  permanent  effect 
only  if  the  year  and  a  day  passed  without  the  removal  of  the  ban;  ^ 
the  tenure  of  a  year  and  a  day,  the  distraining  on  immovables, 
and  certain  forms  of  obligation  have  no  other  origin.  One  may 
liken  the  putting  outside  of  the  law  to  civil  death,  which  will  be 
discussed  later  on.^  With  the  Roman  ideas  which  prevail  in  penal 
law,  and  especially  with  the  absolute  authority  of  the  sovereign, 
is  connected  the  principle,  which  was  still  in  force  in  the  eighteenth 
century,  by  virtue  of  which  the  judge,  the  delegate  of  the  sover- 
eign, can  pronounce  arbitrary  penalties  when  the  statutes  are 
silent.^  Moreover,  Prankish  legislation  already  tended  in  that 
direction  by  virtue  of  a  spontaneous  evolution.  The  authority 
of  the  Frankish  king  in  penal  matters  has  this  arbitrary  character; 
to  fail  in  the  duty  of  loyalty  towards  him,  to  which  one  is  bound, 
lays  one  open:  1st,  to  the  putting  outside  of  the  law  in  the  most 
serious  cases;  2d,  to  banishment  with  confiscation  of  possessions, 
if  the  deed  is  of  less  importance;  3d,  or,  at  least,  to  a  fine.  In  the 
case  of  offenses  involving  the  placing  outside  of  the  law,  and  those 
which  were  punished  by  a  capital  penalty,  there  was  seen  a  dis- 
loyalty to  the  king;  the  thief  is  qualified  as  "infidehs."  Thus  it  is 
that  in  England  the  offense  of  felony  became  the  basis  of  penal 
law.^  The  king  in  a  case  of  disloyalty  had  the  right  to  pardon  the 
guilty  man  or  to  pronounce  arbitrary  penalties  against  him;  ^  the 

vary  according  to  the  status  of  the  persons  (for  example,  slaves,  etc.):  Fertile, 
§§  192,  181.  . 

1  Exile  is  understood  to  apply  to  expulsion  from  the  country,  sendmg  mto 
the  interior  of  the  country,  and  sometimes  even  to  imprisonment  itself.  There 
is  often  added  to  it  confiscation  of  goods:  "Rib.,"  69,  2;  "Capit.,"  I,  18G,  282, 
318.  Part  played  by  those  judged  to  be  banished  at  Metz,  thirteenth  century: 
"N.  R.  H.,"  1880,  371;  Pertile,  §  184. 

2  "Capit.,"  754-5,  c.  1:  " mittatur  in  carcere  usque  ad  satisf actionem"; 
Pertile,  §  183;  Glasson,  VI,  698  (imprisonment  is  more  a  means  of  compulsion 
than  a  penalty). 

3  Loysel,  839:  "He  who  confiscates  the  body  confiscates  the  goods,"  843. 
As  to  the  confiscation  of  fiefs,  cf.  "Ass.  do  Jerus.,"  I,  506  (bibl.) ;  P.  de  Fontaines, 
pp.  292  and  483;  Marnier^  "Et.  de  Norm.,"  p.  77;  Pertile,  §  180. 

^  As  to  the  "  Rechtlosigkeit "  of  the  feudal  period,  cf.  Brunner,  II,  597; 
post,  "Persons;"  Pertile,  §§  185,  187. 

5  Fertile,  §  190  et  seq.;  Glasson,  VI,  694. 

«  "  Summa  Norm.,"  7.4;  Bracton,  fo.  138, 144  et  seq.;  Glanville,  1, 2;  Pollock  and 
Maitland,  II,  460  (bibl.,  p.  446,  on  the  "  Pleas  of  the  Crown").  Cf.  Glasson,Yl,  647. 

^  "Harmiscara"  (French:  "haschidre"),  cf.  Grimm,  Du  Cange,  see  Diez; 
this  word  means  penalty  in  general;  but  it  has  been  understood  to  apply  to 
an  arbitrary  penalty  inflicted  by  the  Carolingians  in  the  ninth  century  ("Cap. 
Kiersey,"  857,  c.  9:  "talem  harmiscaram  qualem  nobis  visum  fuerit,"  cf. 
Table,  see  ed.  B.)  and  especially  of  a  disgraceful  penalty,  like  the  carrying  of 
the  saddle,  which  was  added  to  the  composition:  "Capit.."  866,  c.  9,  II,  96. 
Other  disgraceful  penalties  of  this  kind :  carrying  of  a  wheel  or  of  a  dog.    From 

468 


Topic  2]  OFFENSES  [§  361 

latter  found  himself  at  the  mercy  of  the  king  ("in  misericordiam 
regis  ").^ 

§  361.  Concerning  Special  Kinds  of  Offenses. — We  shall  limit 
ourselves  to  a  mere  enumeration  of  them,  and  only  as  far  as  the 
barbarian  period  is  concerned,  that  is  to  say,  the  period  during 
which  penal  law  still  plays  a  part  in  private  law,  at  least  up  to  a 
certain  point.  —  1st.  Offenses  against  persons  include  murder,^ 
homicide,  blows  and  wounds  which  can  be  divided  into  three 
classes:  (a)  mutilation,  "mahamium"  or  "mehain"  ("membrum 
sideratum,"  "mancum");  (6)  "sanguinis  effusio";  (c)  "colpus," 
"ictus,"  from  which  results  a  "tumor"  or  a  "livor."^  —  2d.. Of- 
fenses against  property,  consisting  almost  entirely  of  theft  ("fur- 
tum,"  "latrocinium"),^  which  are  distinguished  because  of  their 
clandestine  character  from  plundering  or  pillage,^  and  in  the  case 
of  which  the  "effractura  "  may  be  an  aggravating  circumstance.*^ 
The  old  law  contrasts  flagrant  theft  with  theft  which  is  not  fla- 
grant,^ the  latter  being  energetically  checked  because  the  resent- 
ment of  the  man  robbed  has  had  time  to  be  appeased.^    It  also 

whence  comes  the  proverb,  "I'affaire  aura  le  chien":  Chaisemartin,  p.  501; 
Cattier,  p.  66  (carrying  a  stone);  Michelet,  p.  379  et  seq.;  Fertile,  §  186.  At 
a  very  early  time  popular  fancy  is  here  given  free  sway.  Witness  the  two  pro- 
visions of  the  "L.  Burg.,"  97:  (he  who  steals  a  dog)  "ut  coram  omni  populo 
posteriorem  canis  osculetur,"  or  he  must  pay  5  sous  to  the  person  robbed 
and  2  sous  as  a  fine;  98:  "He  who  steals  a  goshawk  shall  allow  the  goshawk 
to  eat  6  ounces  of  flesh  from  his  chest  or  shall  pay  5  sous  to  the  man  robbed 
and  2  sous  fine":  Oierke,  "Humor  i.  d.  R.,"  p.  65;  Grimm,  "R.  A.,"  711. 

1  Anglo-Norman  law:  "amerciamenta,"  fines  to  be  paid  to  the  king  by  the 
man  who  is  at  his  mercy.  Pollock  and  Maitland,  II,  511.  CJ.  "Pleas  of  the 
Crown,"  ibid.,  II,  453  (bibl.,  p.  446). 

2  Beaumanoir,  69, 22;  Boutaric,  II,  40;  "  Jostice,"  p.  288. —  "  Encis  "  (murder 
of  a  woman  who  is  enceinte),  "Et.  de  St.  Louis,"  I,  27;  "Jostice,"  p.  279; 
Boutaric,  II,  40.  —  As  to  infanticide  and  its  connection  with  the  paternal 
power,  c/.  Viollet,  "Et.  de  St.  Louis,"  I,  250;  "Summa  Norm.,"  35.  —  The 
Customs  of  the  Southwest  (thirteenth,  fourteenth  centuries)  decide  that  the 
homicide  should  be  buried  alive  under  the  corpse  of  his  victim:  "Bord.,"  21; 
"Agen,"  16;  "Belves"  (ed.  Vigie),  etc. 

'  See  Du  Cange. 

*  Pollock  and  Maitland,  II,  492;  Pertile,  V,  §  203  (bibl.);  Glasson,  VI,  672; 
Demarsy,  "Du  Vol,"  1869  ("R.  h.  Dr.,"  13  and  15);  Molinier,  "R.  Acad.  leg. 
Toulouse,"  1868,  69;  Bouthors,  "Cout.  d'Amiens,"  p.  160;  Woringen,  "Beitr. 
z.  Gesch.  d.  d.  Strafr."  1882. 

6  "Rauba,"  "schachum,"  "charrena":  Geffcken,  "L.  Sal.,"  p.  229. 

*  "Sal.,"  11,  etc.;  "Screuna,"  "escregne,"  meaning  subterranean  chamber. 

7  Beaumanoir,  30,  84,  90,  102;  39,  10;  61,  2;  "Ass.  de  J6r.,"  "C.  des  B.," 
203,  208,  251,  etc. 

*  As  to  the  interpretation  of  Title  37  of  the  Salic  Law,  "de  vestigio  minando," 
cf.  Zycha,  "Z.  S  S.,  (i.  A.,"  1901,  p.  155.  This  article,  which  was  not  i)ublishod 
until  the  second  chapter  of  this  work  had  been  printed,  brings  to  bear  on  this 
obscure  text  new  ideas  which  are  difficult  to  accept.  They  are  that  it  is  the 
defendant  (and  not  the  "vestigium  minans,"  "  ille"  for  "illi")  who  should 
"agramire  per  tercia  manu,"  when  the  object  has  been  found  in  three 
nights;  after  three  nights  he  may  "agramire,"  but  he  is  not  compelled  to, 

469 


§  361]  OBLIGATIONS  [Chap.  Ill 

draws  a  distinction  between  larceny  which  is  of  little  importance 
and  larceny  which  is  of  more  than  a  certain  sum,  —  five  sous,  for 
example.^  The  breaking  into  a  house  is  distinguished  from  theft, 
of  which  it  is  often  an  aggravating  circumstance.^  Arson  is  a 
particularly  serious  offense  in  the  eyes  of  the  barbarians.^  —  3d. 
Offenses  against  morals,  in  the  primitive  conception,  are  offenses 
against  decency,  —  such  as  adultery,  abduction,  rape,  certain  cases 
of  fornication,  —  rather  than  special  offenses.^  —  4th.  It  is  other- 
wise in  the  case  of  insults,  like  those  which  consist  in  calling  a  man 
a  hare  or  a  fox,  according  to  the  Salic  Law,  or  a  woman  a  sorceress, 
"striga,"  "masca,"  according  to  the  law  of  the  Lombards;  these 
are  attacks  upon  honor  which  sometimes  give  rise  to  terrible  venge- 
ance.^— 5th.  Some  offenses,  such  as  sorcery  and  poisoning,  which 
are  rather  like  magic,  the  carrying  away  of  a  dead  body,  perjury  and 
forgery,  have  a  different  aspect.  —  6th.  Finally,  high  treason  is  es- 
pecially a  crime  against  the  State.  —  Many  of  the  provisions  of  the 
Customs  of  the  feudal  period  recall  the  Frankish  penal  law.^  But  it 
should  be  noticed  that  certain  of  these  offenses  came  within  the 
jurisdiction  of  the  ecclesiastical  tribunals,  with  a  few  others  with 
which  the  old  law  was  not  concerned:^  fornication,  incest,  adul- 
tery, bigamy,^  crimes  against  nature,  suicide,^  sorcery ,^°  heresy," 
and  usury.^^ 

assuming  that  the  complainant  Hmits  himself  to  a  mere  requisition  ("revocare 
absque  intertiato").  Within  the  three  nights  a  lost  object  is  sought  for; 
when  the  three  nights  are  passed  an  offense  arises.  The  "Spurfolge"  or 
following  of  the  trail  is  not  a  necessary  act  of  procedure  (tit.  37,  §  2;  47; 
"  Rib.,"  33,  72).     "  Z.  S.  S.,  G.  A.,"  1901.  p.  401. 

1  Boutaric,  II,  39.    Cf.  "Et.  de  St.  Louis,"  I,  32  (recidivity). 

2  Assultura,  etc.:  "Sal.,"  14,  etc.;  Pollock  and  Maitland,  II,  491. 

3  Pollock  and  Maitland,  II,  490;  PertUe,  V,  631. 

4  Perlile  V  513. 

6  "Sal.,''  30;  "Roht.,"  197,  198;  Pollock  and  Maitland,  II,  535;  Pertile,  V, 
615;  Glasson,  VI,  668;  Dareau,  "Tr.  des  Injures,"  ed.  1785. 

6  Glasson,  III,  554;  VI,  658. 

'  Pollock  and  Maitland,  II,  542;  Pertile,  V,  434.  —  See  "Manuels  de  Dr. 
Canon"  (Lancelot,  Hericourt,  etc.).  —  Beaumanoir,  c.  11,  etc.  —  Kahn,  "Le 
D^lit  et  la  Peine  en  Dr.  Canon,"  1898. 

8  "Capit.,"  793,  c.  34  (concubine). 

9  Glasson,  VI,  693;  "B.  Ch.,"  1,  III,  539;  Bouthars,  "Cout.  d'Amiens," 
p.  102;  Cattier,  p.  96. 

10  Post,  II,  395;  Brunner,  II,  678;  Pollock  and  Maitland,  II,  5.50;  Pertile,  V,  434 
(bibl.);  Soldan,  "Gesch.  d.  Hexenprocesse,"  1843;  Pollack,  id.  1886;  Miihlhrecht, 
"Wegw.,"  I,  92;  II,  91;  Gansen,  "Zauberwahn,"  1900;  "Quellen  u.  Unters.  z. 
Gesch.  d.  Hexenwahns,"  1901;  Reizler,  "Gesch.  d.  Hexenproz."  (Bavaria), 
1894.  Details  in  the  well-known  books  of  Bodin,  De  Lancre,  Del  Rio,  Sprenger 
("Malleus  Maleficarum"),  Boguet,  Remy  de  Nancy,  etc.  CJ.  out  of  curiosity, 
the  "Demonology"  of  Walter  Scott,  the  "Sorciere"  of  Michelet;  "Procesde 
Jeanne  d' Arc,"  by  Quicherat.  —  "  Scopelisme,"  cf.  Fournel,  "  Voisinage,"  II,  478. 

11  Pollock  and  Maitland,  II,  543;  Pertile,  V,  440;  Glasson,  VI,  683. 
»2  See  Glasson,  VI,  689. 

470 


Topic  3] 


CONTRACTS.      FRANKISH    PERIOD 


[§362 


Topic  3.    Contracts.    Frankish  Period 


§362. 
§363. 
§364. 


365. 


Mere  Consent  does  not  bind. 

Real  Contracts. 

Formal  Contract.  "Fides  Fac- 
ta," "  Arramitio, "  "  Wadi- 
atio." 

Forms  and  Cases  in  which  the 
"Fides  Facta"  was  applied. 


§  366.  The  "Festuca." 
§  367.  The  "Wadium." 
§  368.  Security. 

§  369.  Consequences  of  Formalism. 
§  370.  Formation    of    Contracts    by 
Means  of  Writings. 


§  362,  Mere  Consent  does  not  bind.  —  Several  of  the  old  formu- 
lae formerly  led  one  to  believe  that  the  Germans  had  revealed  to 
the  modern  world  fidelity  to  a  man's  given  word;  ^  this  is  an  error 
of  the  same  kind  as  that  at  one  time  so  widespread  according  to 
which  political  liberty  was  to  be  found  in  the  forests  and  marshes 
beyond  the  Rhine.  No  more  in  Germany  than  in  ancient  Rome 
were  obligations  formed  "  solo  consensu."  ^  The  well-known  gibe, 
"A  man  of  honor  has  but  his  word,"  "Ein  Mann,  ein  Wort,"  did 
not  at  first  have  the  meaning  which  is  given  it  to-day.^    As  far  as 

1  Tacitus,  "Germ.,"  24,  with  regard  to  gambhng  debts  and  the  slavery  to 
which  the  loser  submitted  of  his  own  free  will,  says  "ipsi  fidem  vocant":  cf. 
"Ann.,"  13,  54.  —  But  the  cult  of  "Fides"  in  Rome  did  not  prevent  the  Ro- 
mans from  demanding  a  stipulation  in  order  to  render  the  consent  binding, 
cf.  Carpzov,  "Defin.  for.,"  2,  19,  17,  8;  Gliick,  "Fand.,"  IV,  282;  "Sachsensp.," 
I,  7;  "Schwabensp.,"  11.  Cf.  Eichhorn  and  Zoepfl,  who  make  distinctions. — 
Laurent,  "Frincipes  du  Dr.  Civ.,"  I,  24,  and  XV,  428,  makes  himself  the  in- 
terpreter of  the  prejudice  which  was  formerly  current  by  saying,  "The  Custom- 
ary law  ignores  the  superstition  of  the  formulae;  it  has  freed  itself  from  the 
Roman  subtleties  in  order  to  reclothe  itself  with  a  character  of  equity  which 
is  more  in  conformity  with  the  Germanic  spirit."  As  to  formalism  in  the  old 
Germanic  law,  cf.  Heiisler  and  Zellinger;  as  to  procedure,  Brunner,  "Ent- 
stehung  d.  Schwurgerichte,"  1872;  "Wort  und  Form  im  Altfranz.  Prozess," 
1868  ("Forsch.,"  p.  260),  French  trans.,  "Rev.  crit.,"  1871. 

2  This  rule  has  been  generally  accepted  since  the  time  of  the  writings  of 
Sohm,  1876.  There  are  still,  however,  some  divergencies  from  it.  Cf.,  as  to 
these  various  divergencies:  Siegel,  "D.  R.  G.,"  388;  Loening  and  Thevenin,  op. 
cit.  Fertile,  IV,  466,  maintains  that  consent  alone  was  obligatory.  The  only 
old  text  which  he  cites  which  carries  with  it  any  proof,  "Ratchis,"  1,  is  not 
decisive.  Heusler,  I,  70.  See  also  "Liut.,"  15,  78.  According  to  this  learned 
man  the  formalities  that  were  made  use  of,  the  presence  of  the  judges  or  of 
witnesses,  the  drawing  up  of  a  writing,  —  in  fact,  everything  could  be  accounted 
for  by  practical  reasons  whose  effect  is  still  felt  in  the  law  of  our  own  times; 
the  parties  had  recourse  thereto  with  the  single  object  of  insuring  proof  of  their 
contract;  if  these  formalities  or  conditions  were  lacking  the  contract  ran  the 
risk,  not  of  being  annulled,  but  of  not  being  proved:  "Bai.,"  15,  12:  "  chartae 
aut  testes  ut  postea  non  sit  contentio."  These  reasons  had  their  influence  over 
the  past,  we  admit;  but  the  part  played  by  them  is  secondary  in  the  very  old 
law;  they  are  powerless  to  explain  the  essential  characteristics  of  the  system 
of  contracts. 

'  Chaiscmartin,  p.  252.  —  Heiider,  II,  227:  observe  the  remarkable  num- 
ber of   precautions   taken   in   the   old   deeds   to   prevent  the  violation  of 

471 


§  3G2]  OBLIGATIONS  [Chap.  Ill 

primitive  times  are  concerned,  the  only  formula  which  is  applicable 
is  the  following:  "To  promise  and  to  keep  that  promise  are  two 
different  things."  ^  And  such  is,  even  still,  only  too  often  the  ethics 
of  the  man  of  the  people;  a  verbal  engagement  has  little  weight  in 
his  eyes,  he  does  not  show  any  very  great  scruple  as  regards  vio- 
lating it  when  he  knows  that  there  are  no  means  of  holding  him 
to  it;  he  only  feels  himself  bound  by  the  obligation  of  an  oath,  by 
the  giving  of  a  pledge,  or  by  the  intervention  of  a  notary.  Let  us 
carry  back  this  state  of  mind  into  the  past  and  generalize  it,  and 
then  we  shall  be  able  to  understand  the  old  theory  of  contracts. 
The  majority  of  transactions  took  place  in  ready  money.  In  those 
cases,  which  were  at  first  exceptional  and  then  became  more  and 
more  numerous,  in  which  contracts  did  not  call  for  immediate 
performance,  the  obligation  had  to  be  supported,  in  order  to  be 
valid,  by  a  material  element  or  a  formal  element;  in  other  words, 
there  were  two  sorts  of  contracts,  —  real  contracts  and  formal 
contracts.^  The  former  are  only  an  image  of  the  transaction  for 
cash,  an  imitation  of  the  exchange.  As  to  the  others,  they  have 
been  likened  to  the  Roman  stipulation,  but  with  the  difference 
that  the  latter,  under  this  classical  form,  was  reduced  to  the  pro- 
nouncing of  the  "verba,"  to  the  interrogation  and  the  reply, 
whereas  they  admitted  of  the  gesture  and  the  word  at  one  and  the 
same  time  ("Hand  und  Mund");  the  will  of  the  parties  is  shown 
to  the  eye  and  the  ear,  in  conformity  with  the  rough  habits  of  that 
time.  The  old  Germanic  law  is  thus  formalistic  in  the  theory  of 
contracts  as  well  as  in  that  of  the  transfer  of  ownership.^  It  is  also 
formalistic  in  procedure,  which  is  only  the  putting  in  motion  of 
real  rights  and  obligations;  until  the  thirteenth  century  we  see 
the  application  of  the  maxim,  "Qui  cadit  a  syllaba  cadit  a  tota 
causa";  more  than  this,  a  mistake  in  a  single  letter  can  produce 
this  effect;  if  we  are  to  believe  Bracton,  who  was  here  improving 
upon  the  strictness  of  the  old  law  of  the  Quirites,  the  simple  fact 
of  incorrectly  writing  one's  name  in  a  writ,  —  for  example,  adding 

one's  given  word;  to  what  end,  if  one  could  have  counted  on  the  "deutsche 
Mamies  wort"? 

1  Loysel,  660;  Bugado,  "Prov.,"  p.  16.  This  was  also  said  of  the  Normans. 
Cf.  formulae  and  symbols  used  in  children's  games:  "Melusine,"  1,  29  et 
seq. 

*  A  distinction  brought  out  first  of  all  by  R.  Sohm,  "Zf.  Privatr.,"  1874, 
246;  "Recht  der  Ehescht.,"  1876,  p.  24.  Cf.  Heusler,  II,  228.  To  the  contrary, 
Loening  and  Thevenin,  op.  oil.  Cf.  views  held  by  Kovalewsky,  p.  110,  on  the 
Russian  "  Pravda." 

3  Amira,  "Recht,"  p.  136;  Schroeder,  p.  59.  Saxon  customs:  "curvatis 
digitis." 

472 


Topic  3]  CONTRACTS.      FR.\NKISH   PERIOD  [§  362 

an  "h"  (Bracthon),  would  carry  with  it  the  loss  of  the  action.^ 
They  never  went  to  this  extreme  as  far  as  contracts  were  con- 
cerned.^ But  it  is  none  the  less  interesting  to  observe  therein  the 
action  of  this  tendency,  whose  effects  are  noticeable  in  every 
branch  of  the  law,  and  whose  strength  increases  and  decreases  ac- 
cording to  its  surroundings  and  the  hindrances  offered  to  it.  It 
relates,  as  we  have  said,  to  the  habits  of  mind  and  the  importance 
which  juridical  acts  had  in  former  times,  because  entire  families, 
and  not  individuals,  found  themselves  bound  thereby.^ 

This  explanation,  which  is  due  to  R.  Sohm  (1876),  has  been  cor- 
rected and  perfected  in  these  last  few  years.^  It  has  been  pointed 
out  that  the  category  of  real  contracts  was  a  rather  later  creation ; 
the  obligations  arising  from  this  category  of  acts  were  at  first 
nothing  but  obligations  "ex  delicto,"  because  in  the  failure  to  re- 
store the  object  which  was  lent  or  the  object  which  was  deposited 
there  was  seen  an  offense.  In  the  case  of  formal  contracts,  which 
would  be  more  ancient  ones,  there  has  been  an  attempt  to  account 
for  their  formation  by  means  of  a  system  wherein  conjecture  plays 
a  rather  important  part,  but  which  has  the  merit  of  connecting  the 
contractual  obligation  with  the  obligation  "ex  delicto"  and  of 
giving  some  reason  for  the  importance  of  the  old  practices  of  the 
pledge  and  the  giving  of  surety  in  the  formation  of  contracts.  The 
idea  that  the  old  Germanic  law  only  knew  transactions  in  cash  is 
started  with.  As  to  a  contract  giving  rise  to  an  obligation  in  the 
future,  no  trace  is  presented  of  it,  and  this  is  easily  understood, 
for  the  public  powers  were  not  invested  with  the  necessary  au- 
thority to  compel  the  carrying  out  of  engagements  entered  into  by 
individuals.    The  first  obligation  "ex  contractu"  was  that  of  pay- 

1  Bracton,  fo.  1886.  This  excess  of  formalism  is  especially  to  be  observed 
in  the  Anglo-Norman  procedure. 

2  According  to  Heusler,  I,  69,  formalism  and  symbolism  were  consciously 
created  by  the  priestly  class  with  the  object  of  giving  the  people  a  higher  idea 
of  the  law  as  well  as  of  religion.  At  any  rate,  symbols  and  formalities  harmon- 
ized with  the  popular  in.stinct  and  with  the  customs;  nobody  saw  an  annoyance 
in  them,  as  one  is  tempted  to  believe  to-day. 

'  Kovalewsky,  pp.  96, 108,  clearly  brings  out  the  influence  of  the  family  com- 
munity over  the  law  of  contracts.  In  the  last  analysis  the  father,  in  his  position 
as  head  of  the  family,  is  the  only  one  who  has  a  right  to  make  agreements.  Cf. 
p.  117  (law  of  Ireland:  The  obligation  which  is  not  ratified  by  the  relatives  is 
not  binding). 

6  On  this  point  see:  Heiisler,  I,  79,  85;  II,  228,  250;  Amira,  "O.  R.,"  I,  22; 
II,  45;  "Recht,"  131;  Puntschart,  "Schuldvertrag,"  p.  73.  — Cf.  Brunner, 
"D.  R.  G.,"  §  102;  "Grundz."  Inc.  cit.;  Siegd,  "  Versprechcn,"  1873.  — ylmra 
and  PunUchart  (p.  114)  contrast  the  debt  with  the  responsibility:  he  who  is 
responsible  for  a  debt  is  not  always  a  debtor;  he  who  is  a  debtor  is  not  always 
held  responsible. 

473 


§  362]  OBLIGATIONS  [Chap.  Ill 

ing  the  composition  due  by  reason  of  an  offense;  the  man  who  had 
been  judged  guilty  had  not  ahvays  at  his  disposal,  in  the  midst  of 
the  "mallus,"  the  necessary  amount  to  pay  the  thing  oflF  entirely; 
he  had  to  go  into  his  house,  gather  together  his  resources,  and  even 
have  recourse  to  his  relatives.  He  was  allowed  to  gain  time  upon 
condition  of  furnishing  his  creditor  with  a  pledge  or  a  hostage 
(which  amounts  to  the  same  thing,  for  the  hostage  is  only  a  living 
pledge).  It  was  really  rather  paying  the  creditor  than  entering 
into  an  obligation.^  Thus,  having  in  his  possession  a  thing  or  a 
person  over  which  he  had  a  true  right  of  ownership,  the  creditor 
ran  scarcely  any  risk;  if  he  were  not  paid  when  the  payment  fell 
due,  he  was  free  to  satisfy  his  vengeance  upon  the  hostage  that  had 
been  placed  in  his  hands.  The  debtor  would  have  been  dishon- 
ored if  he  had  not  made  every  effort  to  set  free  the  relative  or  the 
friend  who  was  held  in  the  house  of  the  creditor  on  his  behalf. 
Also,  very  often  the  pledge  was  of  such  a  nature  that  it  was  made 
a  point  of  honor  to  redeem  it  (a  ring,  etc.).  In  this  way  the  con- 
ception of  the  binding  contract  was  arrived  at,  and  also  that  of  the 
contractual  obligation,  which  differed  from  the  primitive  obli- 
gation "ex  delicto,"  which  latter  was  carried  out  by  means  of 
vengeance  or  composition.  The  real  pledge  becomes  no  longer 
indispensable,  and  people  are  content  with  an  apparent  pledge  on 
the  day  when  public  power  can  be  counted  upon  to  bring  about 
the  carrying  out  of  the  promise.  The  hostage  degenerates  into  a 
surety  and  becomes  less  necessary;  the  debtor  serves  as  his  own 
surety;  if  he  does  not  carry  out  the  obligation  he  must  give  his 
body  to  the  creditor  as  a  hostage,  and  his  property  as  a  pledge. 
The  judicial  contract,^  the  only  one  which  was  known  at  first,  is 
propagated  and  developed  as  a  consequence  of  the  arbitral  char- 
acter of  the  old  jurisdictions;  it  depended  upon  the  parties  whether 
they  should  submit  their  differences  to  the  judges,  accept  their 
sentences,  and  carry  out  the  measures  which  they  might  prescribe. 
Hence  the  part  played  by  procedure  was  essential  only  in  the 
case  of  contracts  of  this  nature.  And  on  the  same  type,  and  with 
the  same  force  and  the  same  effects,  extrajudicial  contracts  entered 

1  "Roth.,"  346;  "Burg.,"  19,  5;  107,  7.  As  a  general  rule,  one  had  to  pro- 
vide a  surety,  with  a  fictitious  pledge,  rather  than  a  real  pledge,  for  he  who  was 
sufficiently  wealthy  to  furnish  a  pledge  equivalent  to  the  object  due  would  have 
found  it  simpler  to  pay  his  debt. 

2  Brunner,  II,  340,  366:  existence  at  a  very  early  date  of  an  extrajudicial 
contract  intended  to  begin  the  proceedings,  "Streitgeding."  Cf.  "vadimo- 
nium"  at  Rome:  Wodon,  p.  58;  "Cap.,"  818-19,  15  (I,  284);  "Cartse  Sen.," 
10;  "Form.  Tur.,"  6. 

474 


Topic  3]  CONTRACTS.      FRANKISH   PERIOD  [§  363 

more  and  more  into  common  usage.  The  formalism  of  the  "  wadi- 
atio,"  the  frequency  of  pledges  and  guaranties,  are  the  persistent 
survivals  of  this  primitive  system.  The  word  "engagement"  it- 
self, in  the  sense  of  an  obligation,  has  no  other  origin. 

§  3G3.  Real  Contracts.  —  The  typical  one  of  these  contracts  is 
lending;  an  object,  "res,"  is  furnished,  "praestita,"  by  one  person 
to  another;  the  "accipiens"  is  held  bound  to  restore  the  thing 
which  has  been  received,  and  one  can  say:  "re  contrahitur  obli- 
gatio."  ^  But  the  fact  of  not  restoring  is  an  offense  which  gives 
rise  to  the  "faida,"  or  to  the  payment  of  a  composition.  The 
same  idea  is  applied  to  the  deposit,  which  the  barbarian  language 
does  not  distinguish  from  the  lending  of  something  to  be  used  or 
the  lending  of  something  to  be  consumed;  it  is  still  applied  to  the 
granting  of  lands  by  way  of  benefice  or  tenure  at  will  ("com- 
mendatio").^  The  bringing  together  of  facts  which  are  as  dif- 
ferent as  these  is  understood  without  difficulty,  on  the  theory 
which  we  are  setting  forth;  in  all  these  cases  the  offense  is 
the  same;  it  consists  in  withholding  the  property  of  another.^ 
As  a  very  natural  consequence  of  this  idea,  the  "accipiens"  will 
only  restore  that  which  he  has  received;^  he  will  give  back  noth- 
ing more.  The  loan  for  interest  appears  in  such  a  system  like 
something  abnormal;  except,  however,  in  one  case,  i.  e.  where 
it  relates  to  the  domestic  animal;  the  increase  of  a  flock  is  a 
natural  kind  of  interest,  whose  restitution  is  imposed  in  the 
same  way  as  is  that  of  the  flock  itself.^    As  to  date  of  maturity, 

'  "Sal.,"  52;  "Rib.,"  54;  "Bai.,"  1;  "Wis.,"  10,  1;  13,  14;  "Roth.,"  227; 
"Liut.,"  137.    CJ.  Kovalewsky,  p.  129:  loan  in  grain,  in  domestic  animals. 

2  Kovalewsky,  p.  130  (Swedish  law).    Cf.  Roman  tenure  at  will. 

'  "Qui  negligit  censum  perdat  agrum";  there  is  no  question  of  compelling 
the  "accipiens"  to  pay  the  rent.  He  is  accused  of  possessing  "malo  ordine," 
Heusler,  I,  395.  He  is  treated  rather  like  a  thief.  —  Cf.  the  Roman  expression, 
"xs  alienum." 

■•  The  natural  composition  in  a  case  of  this  sort  would  consist  in  giving 
back  the  thing  which  had  been  lent;  being  allowed  to  restore  something  else 
would  be  a  favor  to  the  debtor.  With  the  "ex  delicto "  obligation  it  was  under- 
stood that  the  borrower  should  be  held  responsible  for  accidents.  Cf.  the 
Swedish  maxim,  "That  which  is  borrowed  cannot  be  destroyed,  either  by  fire 
or  by  water."  But  this  severity  was  quickly  departed  from:  cf.  Kovalewsky, 
p.  1.33,  141.  Debtor's  oath  of  innocence:  Heusler,  II,  262.  The  distinction  be- 
tween fault  and  accident  was  introduced  first  of  all  for  special  cases  (the 
natural  death  of  an  animal,  robbery  by  an  armed  man,  etc.);  in  the  end  the 
theories  of  the  Roman  law  on  fraud,  fault,  and  accident  came  to  be  borrowed: 
"Roth.,"  1.38,  1.52,  178  ("exceptio  incvitavele  causa");  "Wis.,"  55,  1  et  scq.; 
"Bai.,"  15;  "Liut.,"  131;  "Sachsen.sp.,"  3,  5,  3  et  seq.;  4,  42,  18;  "Schwab- 
ensp.,"  185,  212. 

*  Cf.  the  Roman  law.  The  "L.  Sal.,"  52,  docs  not  speak  of  interest.  Kova- 
lewsky, pp.  133,  130  el  seq.,  points  out  that  the  sj'stem  of  interest  came  into  exist- 
ence as  a  consequence  of  the  lending  of  animals.     From  thence  arose  the 

475 


§  3G3]  OBLIGATIONS  [Chap.  Ill 

they  gave  little  concern  to  that.  It  arrives  when  it  pleases  the 
lender  to  reclaim  his  property.^  In  a  similar  case  the  Salic  Law, 
under  title  of  "De  rem  pristita,"  provides  against  the  recalci- 
trant debtor  a  procedure  tending  to  inflict  upon  him  pecuniary 
penalties;  his  resistance  is  finally  overcome  either  by  means  of 
a  private  distraint  or  a  judicial  distraint  upon  his  movables,  as 
in  the  case  of  "fides  facta."  ^ 

Moreover,  if  the  conception  of  the  real  contract  did  not  appear 
at  all  at  first,  it  was  substituted  for  that  of  the  offense  by  the  time 
of  the  barbarian  period.  The  example  of  the  Roman  laws,  the 
necessity  of  taking  into  account  the  will  of  the  parties,  economic 
changes,  —  everything  contributed  towards  this  result;  but  this 
law,  which  was  of  the  second  stage,  had  difficulty  in  freeing 
itself  from  the  primitive  rules.^ 

Sale  took  place  most  of  the  time  for  cash;  it  degenerated  into 
barter,  and,  consequently,  there  was  no  reason  to  ask  if  it  were  a 
contract  by  consent  or  a  real  contract;  an  obligation  in  warranty 
might  result  therefrom,  but  one  which  was  rather  of  a  delictual 
nature.*  When  immediate  performance  is  not  possible  on  both 
sides,  and  only  one  of  the  parties  performs,  certain  texts  say 
that  sale  has  only  just  begun.^    It  seems  that  they  went  further 

following  calculations  among  the  Ossetes :  he  who  lends  a  cow  has  a  right  at  the 
end  of  the  year  to  a  cow  and  a  calf;  at  the  end  of  two  years,  to  two  cows  and 
one  calf  (for  the  first  calf  may  have  turned  out  to  be  a  heifer)  and  so  on.  On 
this  basis  the  amount  of  interest  increases  very  rapidly,  the  capital  is  doubled 
in  two  years.  Also  the  question  of  debts  among  old  societies  becomes  an  ex- 
tremely serious  one.  Cf.  the  Celts:  Ccesar,  "De  B.  G.,"  VI,  15;  Romans, 
Greeks,  etc. 

1  The  Ossetes  have  been  known  to  keep  an  object  which  had  been  lent  them 
for  64  years:  Kovalewsky,  p.  139.  There  is  no  prescription  in  their  law.  Time 
does  not  wipe  out  injuries. 

2  "Sal.,"  52:  following  three  summonses  (with  "solem  collocari")  made 
by  the  creditor  at  intervals  of  seven  days,  and  each  one  carrying  with  it  in 
case  it  be  disregarded  a  fine  of  3  "sol.,"  the  debtor  who  will  neither  restore  the 
thing  nor  "  fidem  facere  reddendi "  is  condemned  to  pay  15  "  sol."  over  and  above 
the  amount  of  his  debt.  Cf.  "Sal.,"  45,  2  and  50,  2;  56,  1  (putting  outside  of 
the  law).  On  this  text,  cf.  Geffcken,  "L.  Sal.,"  p.  202  (bibl.);  Sohm,  "Proced. 
de  la  L.  Sal.,"  French  trans.,  p.  34;  Wodon,  p.  43.  According  to  Geffcken,  loc. 
cit.,  the  expression,  "culpabilis  judicetur,"  shows  us  that  the  law  intervened; 
after  the  sentence  of  condemnation  had  been  pronounced  there  was  obviously 
no  further  use  for  the  procedure  of  execution,  that  is  to  say,  for  distraint: 
Heusler,  II,  234  (discussion  and  bibl.);  Keure  de  Saffeldre  (in  Warnkoenig, 
"Flandr.  Staats.  u.  Rechtsg.,"  Ill,  p.  43).    Cf.  Immerwahr,  "Kundigung,"  1896. 

3  Thevenm,  see  "Textes,"  "Pret,"  "Depot."  Heusler,  II,  247,  maintains 
that  the  "mutuum"  is  the  only  one  which  has  become  a  real  contract;  the  idea 
of  a  tort  has  persisted  in  the  case  of  the  deposit,  the  pledge,  and  lending;  and 
sale  has  constituted  a  separate  contract  (earnest  money). 

4  "Sal.,"  37,  47;  Cf.  at  Rome  the  action  "auctoritatis" :  Girard,  "N.  R.  H.," 
1882-4. 

6  Beyer,  "Mittelrh.,  U.  B.,"  no.  6  (in  636);  "  vendere  ceperam."    The  sale  is 

476 


Topic  3]  CONTRACTS.      FRANKISH   PERIOD  [§  364 

and  saw  in  unilateral  performance,  whether  total  or  even  partial/ 
the  source  of  an  obligation;  the  vendor  who  had  delivered  the  thing 
sold  could  demand  the  price,  and,  conversely,  it  was  necessary  that 
the  buyer  should  have  paid  the  price  befote  he  could  demand  de- 
livery of  the  object,  A  part  performance,  or  even  an  accessory 
performance,  —  for  example,  earnest  money,  —  was  likened  to  an 
absolute  taking.^  An  analogous  evolution  took  place  in  the  case 
of  a  contract  which  is  scarcely  related  to  sale,  that  is  to  say, 
betrothal.^  Another  analogy  is  to  be  found  in  the  Lombard  gift  by 
means  of  "Launegild,"  which  is  a  pretended  sale.^  Thus  sale  at  one 
time  became  a  veritable  real  contract,  before  regaining  the  form,  in 
which  it  depended  upon  consent,  of  the  classical  Roman  law.^ 

§  364.  Formal  Contract.^  "Fides  Facta,"  "Arramitio,"  "Wadia- 
tio." — The  Salic  Law,  in  t.  50,  is  concerned  with  this  under  the 
name  of  "fides  facta";  it  is  the  "fealty"  or  "sworn  faith"  of  the 
feudal  period.^     Elsewhere  it  is  qualified  as  "arramitio"^  and  as 

made  for  cash  Schroeder,  p.  294  (contra:  Sohm,  op.  cit.).  Id.  in  "Rib.,"  59, 
GO.  We  find  in  the  formulae  and  deeds  that  the  statement  of  the  payment  is 
insisted  upon:  Thevenin,  "Textes,"  Table;  Roziere,  "Form.,"  I  (sales);  Par- 
dessus,  "Dipl.,"  II,  393,  460,  805,  etc.  Exchange:  Pardessus,  ibid.,  II,  440; 
Loersch  and  Schr.,  2,  no.  22. 

1  "Wis.,"  5,  4,  5  ("pars  precii");  5,  4,  3;  "Bai.,"  16,  2.  Cf.  "Burg.,"  52, 
3;  107,  8;  "Roth.,"  215.  However,  the  payment  of  the  whole  price  might  be 
necessary  in  order  to  obtain  the  delivery  of  the  thing  sold:  Sohm,  "Eheschl.," 
p.  26,  n.  9.  Schroeder,  p.  294,  departs  from  this  idea  and  denies  that  during 
the  barbarian  period  sale  had  become  a  real  contract. 

2  Discussion  as  to  the  nature  of  earnest  money  infra.  Is  it  a  reduction  of 
the  contractual  prestation,  a  payment  on  account,  or  a  symbol  giving  the  legal 
force  to  consent?  "Wis.,"  5,  4,  4;  "Bai.,"  16, 10;  Papieii,  S5.  Cf.  Dig.,  18,  1,35. 

3  "Wis.,"  3,  1,  3;  Papien,  27;  "Cod.  Just.,"  5,  1. 

*  Cf.  post,  "Gifts."  Pappenheim,  "Launegild  und  Garethinx,"  1882 
("Unters.,"  by  Gierke);  Val  de  Lievre,  "Z.  S.  S.,  G.  A.,"  1883,  15;  Schroeder, 
p.  295;  Heusler,  I,  84. 

^  Contra,  Heusler,  II,  247,  according  to  whom  sale  had  become  an  "arrhal" 
contract,  or  one  concluded  by  a  special  means,  —  namely,  the  giving  of  earnest 
money  ("arrhes"),  which  was  distinct  from  both  the  "res  and  the  "wadiatio." 
Cf.  Amira,  "O.  R.,"  II,  342. 

^  This  expression  has  a  double  meaning:  (a)  a  formal  contract,  that  is  to 
say,  one  entered  into  by  means  of  certain  formalities;  (b)  a  valid  deed,  without 
any  settled  consideration  and  merely  valid  because  of  the  fact  that  the  formal- 
ities had  been  carried  out  (for  example,  the  stipulation  at  Rome) :  Kovalewsky, 
p.  110.  Thevenin,  "N.  R.  H.,"  1880,  77  et  seq.,  denies  the  existence  of  the  formal 
contract  and  believes  that  only  real  contracts  existed  in  the  old  times.  See 
especially  Esmein  and  Heusler,  op.  cit.  The  latter  interprets  the  passage  from 
Tacitus,  "Germ.,"  24;  cf.  II,  234,  7. 

^  Cf.  post,  "Oath."  See  the  German,  "Triuwa,"  meaning  "fides"  ("treva," 
"treuga  ),  "Treugelobniss"  ("promissio  fidei")  or  "Wctte,"  designating  the 
"fides  facta,"  the  old  "wadiatio."  In  the  "Sachsensp.,"  I,  7,  "loven" 
would  mean  to  contract  the  "fides  facta,"  and  consequently  this  passage 
would  not  make  any  allusion  to  the  new  principle  of  the  formation  of  contracts 
"solo  consensu."     Post,  "Feudal  Period";  Heusler,  1,  67. 

8  "Adramire,"  "afframire,"  etc.,  which  means  to  strengthen,  to  guarantee, 

477 


§  3G4]  OBLIGATIONS  [Chap.  Ill 

"  wadiatio."^  It  is  by  this  means  that  the  old  law  progressed  from 
cash  dealings  in  order  often  to  substitute  for  them  transactions  on 
credit  and  for  a  term.  The  "fides  facta"  consisted  in  a  unilateral 
promise  whose  performance  was  assured  by  means  of  a  special  pro- 
cedure,^ which  is  thus  described  in  Salic  Law.  Should  the  debtor 
refuse  to  pay,  he  shall  be  liable  to  a  fine  of  fifteen  sous;  if  he  persists 
in  his  refusal,  the  creditor  carries  the  matter  before  the  "mallus" 
and  there  calls  upon  the  "thunginus"  to  pronounce  the  execu- 
tory formula  against  him,  "qui  fidem  fecit  et  debitum  debet";  at 
the  same  time  he  makes  known  the  object  which  is  due  him.  Thus 
summoned,  the  "thunginus,"  without  any  examination,  without 
any  discussion,^  pronounces  the  compulsion,  —  "  nexthe  canti- 

to  promise  (for  example,  to  furnish  a  proof  or  an  oath).  C/.  the  Gothic 
"hramjan  affigere";  Schroeder  likens  it  to  "stipulam  affigere,"  to  throw  the 
"festuca"  into  the  clothing.  TMvenin  wrongly  translates  "adramire"  by 
drawing  to  oneself,  invoking  (a  proof),  "N.  R.  H.,"  1879,  331:  Wodon,  p.  53; 
Esmein,  op.  cit.;  "Sal.,"  50,  56,  57,  2;  "Ed.  Chilp.,"  7;  "Rib.,^'  30,  65,  58,  21; 
67,  2;  "Alam.,"  36,  3;  "Capit.,"  809,  14;  818-819,  15;  D.  Vaissette,  no.  5;  "  L. 
Pap.  Kar.,"  28.  The  literary  documents  of  the  feudal  Middle  Ages  and  the 
legal  texts  of  the  thirteenth  century  use  the  word  "arramir"  with  the  same 
meanings:  Godefroy,  "Diet.,"  see  Renart,  14515;  Chevalier  de  la  Charrette, 
p.  731.  Battle,  "arramie,"  meaning  duel  pledged:  "Ass.  de  J^rus.,"  ed.  B., 
Table,  see  "Duel,"  "Bataille;"  Beaumanoir,  39,  19  and  74;  P.  de  Fontaines, 
22, 105,  25;  "Et.  de  St.  Louis,"  II,  26;  "Ord.  des  Maiours,"  "N.  R.  H.,"  1878, 
pp.  220,214;  Ragueau,see  DuCange,  "Z.S.  8.,"  18S2;  "G.A.,"228;  Hermann, 
"  Mobiliarvindic,"  p.  vi. 

1  "Form.  Merkel,"  39;  TMvenin,  no.  114;  Lindenhr.,  19;  Bignon,  27; 
"Bai.,"  2,  14,  etc.;  Wodon,  p.  51.  Cf.,  the  German  "Wette,"  which  is  a 
pledge  furnished  by  the  debtor  (stake);  "pfant,"  a  pledge  distrained  upon, 
or  taken  by  the  creditor;  Brunner,  II,  445.  The  hostage  appears  as  a  pledge 
in  the  following  expression:  "liber  qui  se  loco  wadii  in  altarius  potestatem 
commiserit":  "Cap."  803,  c.  8  (I,  114). 

2  cy.  as  to  the  Formal  Act,  the  theory  of  R.  Sohm,  "Proced.  de  la  L.  Sal.," 
Fr.  trans.,  1873.  According  to  the  illustrious  German  scholar,  this  act  would 
be  halfway  between  the  acts  of  law  and  the  judicial  procedure;  it  might  be 
qualified  as  a  "Selbsthlilfe,"  which  had  been  made  regular.  In  our  tirne 
public  authority  alone  can  administer  the  right  of  rendering  justice;  this 
was  not  so  in  the  old  law,  where  the  mere  individual  had  a  share  of  this  right; 
he  was  recognized  as  having  a  power  of  coercion  by  the  use  of  the  formal 
act  (a  verbal  declaration  accompanied  by  certain  formalities) ;  disobedience 
to  the  injunction  contained  therein  meant  the  payment  of  a  fine.  Sohm 
perhaps  exaggerates  the  importance  of  the  formal  act,  at  least  in  the  case 
of  the  Salic  Law,  for,  as  Geffcken  points  out,  in  Titles  50,  52,_  where  Sohm 
only  sees  an  extrajudicial  procedure,  the  words  "culpabihs  judicetur"  imply 
the  intervention  of  the  "mallus,"  or  a  judicial  sentence.  Cf.  the  procedure 
against  the  "homo  migrans."  Thus  judicial  procedure  would  not  have  been 
restricted  in  the  matter  of  offenses,  as  Sohm  has  seemed  to  think.  Whatever 
may  be  the  fact  on  this  point,  there  is  no  doubt  that  the  "Selbsthlilfe"  and 
formalism  for  a  long  time  played  a  very  important  part  in  procedure  (for 
example,  adjournment,  part  taken  by  the  parties',  calling  upon  judges  to 
judge,  etc.):  Brunner,  "Grundz.,"  §  9;  A^.  Tamassia,  "Arch.  Giur.,"  XI,  2 
(1903),  "Fidem  facere."  On  the  criticisms  of  Thevenin  and  Behrend,  cf. 
"Z.  S.  S.,"  1882,  "G.  A.,"  228. 

'  There  is  no  room  here  for  a  procedure  based  upon  the  hearing  of  both 

478 


Topic  3]  CONTRACTS.     FRANKISH   PERIOD  [§  364 

chio/  ego  illo  in  hoc  quod  lex  Salega  ait."  This  permits  the  cred- 
itor to  proceed  with  the  execution;  he  forbids  the  debtor  to  pay 
anything  to  anybody  or  to  give  any  pledge  of  payment  before  he 
shall  have  exonerated  himself  with  regard  to  the  creditor:  "The 
possessions  of  the  debtor  are  under  attachment  in  his  hands  and 
cannot  be  moved  until  the  day  when  he  shall  have  paid."  Fol- 
lowing this,  three  times,  from  week  to  week  ("per  tres  nondenas"), 
he  goes  to  the  house  of  the  debtor  and  summons  him  to  perform 
the  obligation,  waiting  for  this  to  take  place  until  the  setting  of 
the  sun  ("solem  ei  collocet").  Each  summons  which  remains 
without  result  means  the  payment  of  a  fine,  whose  amount  in- 
creases the  principal  of  the  debt.  By  this  indirect  means  of  com- 
pulsion the  carrying  out  of  the  "fides  facta"  would  be  assured 
in  the  majority  of  instances.  If,  however,  the  debtor  defies  an 
accumulation  of  fines,  the  creditor  has  two  means  of  putting  an 
end  to  his  resistance:  1st,  the  first  one  consists  in  himself  dis- 
training upon  the  movables  of  the  debtor;  ^  2d,  the  other,  in 
causing  them  to  be  distrained  upon  by  the  "grafio"  of  the  locality 
assisted  by  seven  "rachimbourgs."  ^  He  can  choose  between 
private  distraint  and  judicial  distraint;  but  undoubtedly  this 
was  not  so  in  the  ancient  Salic  Law;  private  distraint  was  the  only 
way  which  was  open  to  him;  he  proceeded  with  it  at  his  own  risk 

parties  because  of  the  formalities  of  the  "fides  facta,"  according  to  the  opinion 
which  is  very  widespread;  or  because  there  has  aheady  been  a  judgment,  as 
has  already  been  pointed  out.  —  The  judgment  condemns  one  man  to  pay 
or  to  give  a  pledge:'  Rozihre,  "Form.,"  nos.  463,  467,  468.  Heusler,  II,  232 
n.  5  (bibl.  on  this  disputed  point),  also  admits  that  from  the  barbarian  period 
on,  the  sentence  had  executory  force. 

1  "Nexti  canthichus"  in  Ms.  No.  1,  ed.  Hessels,  is  translated  by  "ad- 
stringas"  in  the  "L.  Emendata":  Brunner,  "D.  R.  G.,"  II,  447.  Etymology: 
Kern,  §  138. 

2  "  L.  Sal.  Capit.  extravag.,"  73,  ed.  Hessels  ("de  pignoribus") :  he  who  carries 
out  the  "  pignoratio  sine  judice"  before  the  "nexti  canthichio"  loses  his  claim;  if 
the  "  pignoratio  "  is  not  well  founded  he  incurs  a  fine.  On  this  text  cf.  Geffcken, 
p.  24.'),  bibl.).  One  must  conclude  from  this  that  the  creditor  after  the  "nexti 
canthichio"  "may,  if  he  acts  'bene,'  proceed  in  person,  'sine  judice,'  with  the 
distraint  upon  goods  of  his  debtor."     C/.,  however,  Schroeder,  p.  289. 

2  Controversy  on  the  point  of  knowing  whether  the  §  3  of  Title  50,  of  the 
Salic  Law,  is  a  continuation  of  §  2,  or  whether  it  provides  for  a  distinct  supposi- 
tion; from  the  time  of  Siegel,^  "Gesch.  d.  deutsch.  Gerichtsverf.,"  1857,  §  5, 
this  last  opinion  is  the  most  widespread:  Wodon,  p.  23  el  seq.;  Geffcken,  p.  196. 
C/.  post,  "Execution."  —  The  promissor  who  does  not  carry  out  his  promise 
on  the  day  appointed  is  considered  as  "jectivus,"  and  against  him  one  can 
carry  out  the  distraint  upon  movables.  The  word  "jectivus"  (cf.  "jectare") 
is  perhaps  to  be  explained  by  the  throwing  of  the  "festuca";  the  man  had 
promised  "per  festucam";  perhaps  in  the  same  way  it  is  considered  that  he 
failed  to  carry  out  his  promise  "per  festucam":  Brunner,  p.  368;  "Form. 
Marc,"  I,  37;  "Tur.,"  33  and  6;  "Cart.  Senon.,"  10,  26;  "Form.  Sen. 
Rec,"  1;  Wodon,  p.  38. 

479 


§  364]  OBLIGATIONS  [Chap.  Ill 

and  peril,  for,  should  it  be  irregular,  he  lost  his  debt  and  was  him- 
self subject  to  a  fine.  It  is  very  probable  that  distraining  by  the 
"grafio"  and  the  "  rachimbourgs "  was  only  introduced  into  the 
Salic  Law  by  means  of  an  addition  to  the  early  text.^ 

One  asks  oneself  how  it  is  that  the  "fides  facta"  allows  of  the 
employment  of  a  procedure  as  forceful  as  this.  According  to  some, 
this  would  be  an  intrinsic  effect,  a  special  virtue,  of  the  formal  act; 
from  the  moment  when  the  parties  had  conformed  to  the  custom, 
the  creditor  found  himself,  as  it  were,  armed  with  an  executory 
claim;  he  was  free  to  act  against  the  debtor,  who  had,  to  a  certain 
extent,  condemned  himself  beforehand;  the  more  or  less  absolute 
"  Selbsthiilf e  "  revested  as  of  right.  According  to  others,  the  effi- 
caciousness of  the  formal  contract  would  depend  upon  whether 
it  were  originally  made  to  rest  upon  a  "  judicatum";  it  is  clear  that 
one  could  not  again  question  a  transaction  which  had  been  ad- 
judged; it  was  natural  to  proceed  at  once  with  execution.  In 
time  the  formal  contract  would  have  become  detached  from  its 
judicial  origin,  to  be  applied  even  in  the  absence  of  any  order  of 
a  court.  One  would  be  constrained  to  accept  this  last  opinion  if 
it  is  true  that  the  first  obligatory  contract  was  the  pact  based  upon 
the  composition  for  an  offense  fixed  by  law. 

§  365.  Forms  and  Cases  in  which  the  "Fides  Facta"  was  applied. 
—  The  Salic  Law  teaches  us  how  the  "fides  facta"  was  carried  out, 
but  it  does  not  tell  us  how  this  contract  was  closed  nor  in  which 
cases  it  took  place.  The  vague  terms  of  Title  50  might  lead  one 
to  suppose  that  the  judicial  "fides  facta"  and  the  extrajudicial 
"fides  facta"  are  there  being  considered  at  one  and  the  same 
time;  they  can  either  one  of  them  be  understood  from  these  forms.^ 
Elsewhere  the  judicial  "fides  facta"  is  dealt  with,  and  everything 
leads  one  to  believe  that  it  was  the  first  one  made  use  of,^  ad- 
mitting that  it  was  the  typical  form.  It  consisted  in  the  promise 
to  pay  the  composition  incurred,  that  is  to  say,  to  carry  out  the 
judgment.  The  procedure  of  execution  described  in  Title  50  of 
the  Salic  Law,  "De  fides  facta,"  thus  rested  upon  a  "judicatum," 

1  Wodon,  p.  31  et  seq.  (various  interpretations);  Brunner,  II,  447,  448,  454 
(part  plaved  by  the  "grafio").  Cf.  Heusler,  II,  235.  Roman  "Nexum," 
Girard,  pr477;  "Z.  S.  S.,"  1901. 

^  Outline  of  the  different  views  in  Wodon,  p.  40;  Behrend,  "Festg.  Heffter," 
p.  81. 

3  Tacitus,  "Germ.,"  24,  foresees,  however,  the  gambling  debt,  —  that  is 
to  say,  an  extrajudicial  agreement;  the  stake  is  only  a  pledge.  —  As  to  the 
Swedish  and  Russian  law,  cf.  Kovalewsky,  p.  107;  Amira,  "O.  R.,"  I,  278 
(transfer  of  ownership).  According  to  Kovalewsky,  the  Swedish  "fastars" 
did  not  represent  the  popular  assembly,  but  the  fanaily  community. 

480 


Topic  3]  CONTRACTS.     FRANKISH   PERIOD  [§  365 

and  this  is  what  explains  why  every  resistance  was  forbidden  the 
debtor;  he  must  pay  up  at  once  as  soon  as  he  has  been  judged 
guilty;  he  had  been  granted  a  delay  out  of  mercy;  perhaps  this 
was  the  judicial  delay  of  forty  days;  the  day  having  come,  there 
was  no  more  discussion;  he  was  obliged  to  submit  to  the  distraint. 
The  "fides  facta"  was  also  very  frequently  a  promise  to  furnish 
proof,  to  appear  in  court,  or  to  cause  some  one  else  to  appear 
there.-'  These  judicial  contracts  abound  in  the  old  procedure; 
they  were  the  means  by  which  one  succeeded  in  getting  execution 
of  the  arbitral  judgments  of  the  judges  of  early  times.  The  ex- 
trajudicial "fides  facta"  no  doubt  followed  closely  these  engage- 
ments made  in  court  (if  we  admit  that  it  is  not  so  old  as  they  were)  - 
and,  finally,  the  procedure  laid  down  by  the  Salic  Law  was  applied 
in  every  case.  The  "fides  facta"  thus  became  a  general,  way  of 
binding  oneself  which  was  applicable  to  every  agreement,  just  as 
the  Roman  stipulation  was,  after  it  too  had  been,  originally,  what 
one  might  call  a  contract  of  composition,^ 

As  to  the  form  of  the  "fides  facta,"  we  learn  by  means  of  the 
law  of  the  Ripuarians  that  it  was  concluded  "cum  festuca";^ 
other  documents  confirm  this  indication  or  show  it  to  us  being 

1  CJ.  "Sal.,"t.  56,  52,  57,  2;  58;  "Edit.  Chilp.,"  7;  "Rib.,"  58,  5;  "Sal.," 
36,  1;  PardessxiH,  "Dipl.,"  no.  431,  434;  "Form.  Sen.  Rec,"  2.  Other 
examples  in  Wodon,  p.  50.  Frequency  of  these  contracts  during  the  feudal 
period  in  the  South:  "firmare,"  that  is  to  say,  to  bind  oneself  with  surety,  to 
recognize  the  competence  of  the  court  ("posse  curiae"),  to  pay  the  fine  ("fir- 
mare jus,  directum";  "fermar  per  far  ley"):  Franken,  p.  207;  post,  "Giving 
Surety." 

2  Fertile,  IV,  467,  maintains  that  the  most  important  contracts  were  en- 
tered into  at  law  (from  thence  came  the  names  "thinx  "  "  geding,"  which  were 
given  at  one  and  the  same  time  to  agreements  and  to  public  assemblies): 
"Roth.,"  172,  178,  179  ("Fabula"),  etc.;  Gnmm,  "R.  A.,"  600.  Post,  "Gifts." 
For  less  important  deeds  they  would  have  been  contented  with  witnesses. 

'  The  Edict  of  "  Ratchis,"  5,  contrasts  with  the  "wadiatio,"  which  is  to  be 
carried  out  at  once,  the  "stantia"  ("convenientia"),  which  is  "stabilis,"  but 
the  immediate  execution  of  which  one  cannot  demand;  this  latter  assumes  a 
judicial  discussion;  the  real  contracts,  such  as  sales  and  the  penal  clauses  in 
a  "carta,"  may  be  looked  upon  as  "stantia":  Heusler,  II,  239;  Fertile,  IV, 
471. 

■•  "Rib.,"  30:  "ejus  prajsentiam  cum  fistuca  fidcm  faciat  "  (the  master  binds 
himself  to  bring  his  slave  before  the  court  within  14  days);  71:  "de  quacum- 
que  causa  fistuca  intercesserit,  lacina  interdicatur  sed  cum  sacramento  se 
edoniare  studeat " ;  one  of  the  consequences  of  the  employment  of  the  "  festuca  " 
is  to  prohibit  every  discussion  based  upon  a  hearing  of  both  parties;  the  de- 
fendant is  held  bound  to  justify  himself  by  oath.  Cf.  Wodon,  p.  47  (bibl.).  — 
In  Title  66  they  merely  say  "fid em  facere"  without  adding  "per  festucam"; 
these  words  should  be  understood.  Loening  accounts  for  the  silence  of  the 
texts  by  saying  that  neither  the  "  festuca  "  nor  the  "  wadium  "  were  required 
in  extrajudicial  deeds.  But  this  distinction  is  not  justified.  Cf.  Pardessus, 
"Dipl.,"  nos.  418,431,  434;  "Capit.,"  I,  no.  26,  c.  32;  "Form.  Merkel.",  27; 
"Sen.  Rec,"  1,  2,  3  ("per  fistucam  adchramirc");  TMvenin,  "Textes,"  no. 
107;  "sua  festuca  jactante  ad  placitum  se  afframivit." 

481 


§  365]  OBLIGATIONS  [Chap.  Ill 

carried  out  "per  wadium."  ^  Here  we  have  two  methods  which 
were  originally  distinct,  but  which  seemed  to  be  equivalent  to  one 
another  and  tended  to  become  confused,  which  makes  it  difficult 
to  state  their  characteristics  precisely. 

§366.  The  "Festuca,"  which  was  mostly  in  use  among  the 
Franks,  is  not  the  branch  of  a  tree,  but  a  rod,  a  boar-spear,  a  sym- 
bol of  the  national  arm  of  the  Germans;  the  lance,  whose  haft  was 
furnished  with  a  short  and  narrow  piece  of  iron.^  The  free  man 
presented  himself  before  the  tribunal,  that  is  to  say,  the  popular  as- 
sembly, with  his  arms,  holding  a  lance  in  his  hand,  ready  to  wield 
it  in  order  to  emphasize  his  claims.  When  customs  became  more 
civilized,  the  "festuca"  was  substituted  for  it,  a  judicial  weapon 
without  iron,  which  was  analogous  to  the  Roman  "vindicta";  and 
the  "  festuca  "  degenerated  in  its  turn  into  a  still  more  inoffensive 
object, — a  wisp  of  straw,  "calamus  stipula."  The  thromng  of 
the  "festuca,"  whether  it  were  upon  the  ground  or  into  the  bosom 

1  "Form.  Marculf.,"  II,  18;  Und.,  19;  Bignon,  27;  Merk.,  39;  "Bai.," 
II,  14;  "Cham.,"  45;  "Capit.,"  I,  50,  c.  2;  144,  c.  4;  TMvenin,  no.  167  and 
Table,  see  "Wadium."  —  Fertile,  IV,  472:  deeds  of  the  twelfth  and  thirteenth 
centuries  ("wadiam  dederunt,  baculum  porrigentes"). 

^  Tacitus,  "Germ.,"  6;  "Sal.,"  46,  50.  Cf.  as  to  this,  "Transfer  of  Owner- 
ship"; Esmein,  p.  36;  Wodon,  p.  84;  see  Thevcnin,  "Textes,"  "Capit.,"  6, 
285;  "M.  G.  H.,  S.  S.,"  IV,  124;  "L.  L.,"  IV,  599  ("actores  baculos  vadi- 
monii  reis  restituunt"),  etc.  See  "to  break  the  straw."  —  Cf.  "gaira" 
among  the  Lombards;  post,  "Gift;"  Pappenheim,  " Launegild  und  Garethinx," 
1882. —  On  the  "stipula,"  cf.  Du  Cange;  "L.  Rom.  Cur.,"  24,  2;  Grimm, 
"R.  A.,"  187:  see  "Halm,"  "Festuca";  Michelet,  "Orig.,"  127-181. —In  the 
transfer  of  copyholds  they  sometimes  make  use  of  the  rod  and  sometimes  of 
the  straw.  —  Even  a  thread  of  the  garment  or  a  hair  of  the  beard  is  sufficient, 
—  objects  always  within  reach  of  the  parties;  whereas  in  court  one  ran  the 
risk  of  not  being  able  to  find  immediately  the  wisp  of  straw  or  the  stick  re- 
quired for  the  procedure,  and  this  evil  chance  would  at  least  have  the  effect  of 
subjecting  one  to  a  fine:  "Ord.  des  Maiours,"  "N.  R.  H.,"  1878,  318.  322; 
Lacomblet,  "Nied.  Urk.,"  1,  142;  "N.  R.  H.,"  1888,  91;  Homeyer,  "Hausmar- 
ken,"  187;  Brunner,  II,  519,  354,  366,  369,  444,  435;  "Urk.,"  p.  274;  Schupfer, 
"AUodio,"  147.  There  is  some  question  in  certain  te.xts  (Thevenin,  "Textes," 
see  "Festuca"),  of  a  "festuca  nodata,"  a  knotted  straw  {Wodon,  p.  137),  or, 
rather,  "notata,"  a  stick  marked  with  a  sign  whereby  it  could  be  recognized, 
or  perhaps  bearing  magic  characters,  a  formula  of  imprecation.  Cf.  the 
magic  wand:  Michelsin,  "Festuca  Notata,"  1856;  Schrneder,  p.  292;  Heusler, 
I,  76,  who  argues  in  this  way  from  Tacitus,  "Germ.,"  10  ("surculi  notis  quibus- 
dam  discreti"),  and  from  the  fact  that  the  "festuca"  is  often  a  little  piece  of 
wood.  According  to  him,  these  signs  or  "runes"  also  served  to  make  the 
stick  individual,  to  allow  of  its  being  recognized,  for  it  was  the  same  "festuca" 
which  ought  to  serve  for.  the  demanding  of  execution  ("Sal.,"  50),  and  which 
was  given  to  the  surety  with  the  same  object,  that  is  to  say,  with  the  object 
of  carrying  out  execution  upon  the  principal  debtor.  Post,  "Suretyship." 
For  "runes,"  which  had  become  unintelligible,  were  substituted  signs  or 
numbers,  perhaps  representing  the  amount  of  the  debt.  The  wand  was 
broken  into  two  parts,  which  were  brought  together,  if  we  are  to  believe  Isidore 
de  Seville,  "Orig.,"  IV,  24,  so  as  to  recognize  them;  in  this  was  seen  the  proto- 
type of  charter  parties.  These  \news  are  almost  too  ingenious  to  be  true,  but 
it  is  a  pity.     The  king's  sceptre,  the  usher's  rod,  the  ambassador's  staff. 

482 


Topic  3]  CONTRACTS.     FRANKISH   PERIOD  [§  366 

("in  laisiim")  of  the  one  with  whom  one  was  negotiating,  naturally 
symbolizes  the  giving  up  of  a  right,  —  for  example,  the  abandon- 
ment of  a  piece  of  land,  and,  by  extension,  the  transfer  of  owner- 
ship; and,  as  the  weapon  represents  the  right  which  it  serves  to 
urge,  it  is  not  astonishing  that  they  should  pass  from  the  throwing 
into  the  bosom  of  the  grantee  to  delivering  it  from  hand  to  hand.^ 
The  pronouncing  of  appropriate  words  —  in  very  old  times  they 
must  have  been  essential^  —  while  holding  the  "fcstuca"  in  his 
hand  or  throwing  it,  was  also  a  solemn  means  of  entering  into  an 
engagement.  But  here  the  symbolism  is  obscure  and  confused. 
It  is  not  very  difficult  to  understand  how  the  throwing  of  the 
"festuca"  might  signify  the  giving  up  of  the  right,  for  example, 
the  right  of  vengeance;  but  why  should  it  mean  an  obligation  to  do 
something?  Did  the  man  who  did  this  wish  to  say  that  by  this 
means  he  gave  himself  up  without  defense  to  the  other  party?  ^ 
By  handing  him  the  "festuca,"  "*  did  he  place  himself  under  the 
other  man's  power?  Was  the  affirmation  made  while  holding  the 
"festuca"  in  the  hand  a  sort  of  pagan  oath  upon  the  weapons  or 
the  survival  of  this  oath?  '^     Or,  finally,  must  one  only  see  in  the 

1  Wodon,  p.  84;  Grimm,  "R.  A.,"  128;  "Rib.,"  33,  66. 

2  Heusler,  I,  71. 

^  Wodon,  p.  121.  When  the  parties  put  an  end  to  their  private  warfare 
they  had  to  disarm,  give  up  all  right  of  vengeance;  and  to  carry  this  out  the 
throwing  of  the  "festuca"  was  the  most  natural  of  symbols.  After  this 
they  bound  themselves  to  respect  the  sentence  of  the  judge  to  whom  they  had 
submitted  their  differences.  These  two  simultaneous  acts  were  practically 
inseparable.  From  this  must  have  come  the  obhgation  "per  festucam." 
Cf.  "Z.  S.  S.,"  1882;  "G.  A.,"  228. 

*  Th6venin  maintains  that  the  "festuca"  was  always  held  in  the  hand  or 
thrown,  never  handed  over.  But  he  seems  to  us  to  exaggerate  the  distinction 
between  the  act  of  throwing  the  "festuca"  into  the  breast  of  someone  and 
that  of  handing  it  to  him  directly,  which  took  place,  —  at  least,  at  a  certain 
period,  —  in  matters  of  the  transfer  of  ownership  and  in  matters  of  obligations. 
Cf.  D.  Vaissette,  "Preuves,"  no.  109;  Brunner,  II,  356.  An  agent  "ad  litem" 
is  appointed  by  a  declaration,  with  the  "festuca"  in  one's  hand,  followed  by 
the  throwing  of  it  to  the  agent;  or,  again,  one  places  a  wand  in  his  hand  (a 
deed  of  1025).  "Laisowerpire,"  which  means  to  throw  into  the  breast:  cj. 
Kern  in  Hessels.  Among  the  Scandinavians  the  "gaira"  or  the  rod  ten- 
dered by  one  party  is  touched  by  the  other  party  with  his  weapon  or  with 
his  hands  ("manufirmatio").  —  Obviously,  a  throwing  of  the  "festuca"  could 
be  applied  only  to  a  case  of  the  renunciation  of  a  right:  "Cap.,"  VI,  285; 
Esmein,  p.  36.  The  monk  renounces  the  world  by  laying  down  the  "stipula  "; 
Du  Cange,  see  "  Investit.,"  cites  the  tale  of  Garin,  "  By  this  stick  I  make  you  a 
present  [of  the  land]."  TMvenin,  no.  137;  "Form.  s.  Roth.,"  143;  "IM.  G.  11. , 
S.  S.,"  IV,  124:  the  "proceres,"  throwing  the  "festuca,"  declared  that  they 
would  no  longer  be  subject  to  Charles  the  Simple.     Grimm,  "R.  A.,"  123. 

^  Such  was  perhaps  the  case  in  the  "L.  Sal.,"  50,  3;  the  creditor  holds  the 
"festuca"  and  pronounces  a  formula.  Cf.  Ccesar,  "Do.  B.  G.,"  4,  11;  1,  3; 
Gregory  of  Tours,  "H.  Fr.,"  5,  3,  "Et.  de  Gl.  Conf.,"  68,  does  not  distinguish 
between  the  oath  and  the  "fides."  The  vassal's  oath  of  fidelity;  during  the 
feudal  period,  fealty  and  homage:  Heusler,  I,  78;  Puntschart,  p.  487. 

483 


§  366]  OBLIGATIONS  [Chap.  Ill 

"festuca"  a  pledge  "sui  generis"?  It  is  made  use  of  as  a  "wad- 
ium"  during  the  Prankish  period;  but  it  is  doubtful  if  this  were 
its  original  function. 

§  367.  The  "Wadium"  (or  the  "wadia"  among  the  Lombards)^ 
consists  in  some  object,  such  as  a  glove,^  which  the  debtor  gives 
to  the  creditor.  It  was  made  use  of  in  the  same  way  as  the  "  fes- 
tuca," less  often,  however,  for  the  transfer  of  ownership.^  What 
was  the  "wadium"  originally?  Very  probably  a  real  pledge;  that 
is  to  say,  an  object  having  a  value  corresponding  to  the  debt  which 
it  guaranteed;  if  a  value  greater  than  that  of  the  amount  due, 
then  the  interest  was  the  motive  which  led  the  debtor  to  pay  in 
order  to  withdraw  it;  a  lesser  value,  but  in  this  case  the  pledge 
consisted  in  an  object  which  had  for  its  owner  a  value  due  to  asso- 
ciation, or  one  which  was  agreed  upon,  so  that  its  final  giving  up 
must  either  be  very  repugnant  to  him  or  else  pass  as  not  being 
very  honorable.'*  The  usage  of  adding  a  suretyship  to  the  princi- 
pal of  the  engagement  allowed  one  to  be  content  with  some  object 
in  place  of  a  "wadium";  for  example,  a  piece  of  wood,  the  "fes- 
tuca" itself,^  or  even  to  dispense  with  the  "wadium,"  although 

1  "Wadium,"  "guadium,"  etc.  (Gothic,  "vidan,"  meaning  to  bind:  see 
Du  Cange,  "Roth.,"  360  et  seq.;  "Liut.,"  15;  "Bai.,"  2,  15,  3;  10,  2,  3;  17, 
2;  "Alam.,"  36,  2;  "Fr.  Cham.,"  48;  Rozihre,  "Form.,"  465,  511,  etc.;  "N.R. 
H.,"  1880,  69.  The  Customs  of  Milan  hken  the  stipulation  to  the  "guadise 
datio." 

2  Throwing  down  the  glove,  picking  up  the  glove.  The  pledges  of  battle 
in  the  judicial  duel.  A  prolonged  application  to  this  act  of  the  old  procedure 
of  the  archaic  method  of  forming  the  obligation:  Gaudenzi,  "Dig.  Ital.,"  see 
"Campione  d'Armi;"  Loysel,  808-819  (bibl.);  Patetta,  "OrdaUe,"  1890 
(bibl.);  Hildebrand,  "De  Purgatione  Vulgari,"  1847;  Fertile,  V,  507;  Ducou- 
dray,  "Orig.  du  Pari.,"  p.  375;  Pfeffer,  "Z.  f.  Rom.  Philol.,"  IX,  29  (formali- 
ties of  the  judicial  duel  according  to  the  heroic  songs). 

^  It  takes  place  "per  wadios  et  andelangos,"  even  among  the  Franks. 

*  Cf.  Wodon,  p.  99,  143.  In  his  opinion  the  "  wadiatio"  is  a  partial  payment, 
a  symbol  of  the  future  prestation.  He  points  out  the  opposition  set  up  by  the 
texts  between  the  "wadium"  and  the  "pignus,"  the  pledge  based  on  an  agree- 
ment and  the  distraint  by  one's  own  authority.  "If  the  'wadium,'"  says  he, 
"had  been  a  real  pledge,  it  would  have  consisted  in  movables,  and  during  a 
period  when  money  was  scarce  would  have  been  an  ordinary  payment;  now, 
we  assume  that  the  debtor  can  make  no  immediate  payment."  This  remark 
is  correct,  but  there  is  nothing  to  prevent  our  assuming  that  the  "wadium" 
consists  of  an  object,  such  as  a  weapon,  or  a  piece  of  clothing,  of  which  one  is 
not  going  to  deprive  oneself,  and  which  one  reserves  the  right  of  taking  back. 
If  the  "wadiatio"  had  been  a  part  payment,  the  "wadium"  would  always 
have  been  a  piece  of  money,  —  at  least,  at  the  time  when  the  payment  usually 
took  place  in  money.  Furthermore,  there  are  texts,  such  as  the  "Cap.  add. 
L.  Rib.,"  c.  3,  in  which  the  "wadium"  is  treated  as  a  real  pledge.  Cf.  Kova- 
lewsky,  p.  110. 

^  D.  Vaissette,  III,  no.  64  (in  971).  Proofs:  the  defendant  gives  back  the 
thing  which  is  claimed  from  him  "per  guadium  suum,"  i.  e.,  "per  festucam  de 
vites"  (by  the  oath) ;  "Form,  ad  Roth.,"  232,  362.  In  the  form  of  the  eleventh 
century  "Qualiter  vidum  salicha  spondetur,"  the  "festuca"  and  the  "wadium" 

484 


Topic  3]  CONTRACTS.     FIL^NKISH   PERIOD  [§  368 

the  rather  frequent  use  of  the  term  "  pledge  and  surety  "  proves 
connection  between  the  two  kinds  of  security.^ 

§  368.  Security.  —  The  necessity  of  a  security  in  order  to 
render  the  agreement  binding  in  the  very  old  law "  is  not  only  at- 
tested by  the  frequency  of  real  pledges^  and  suretyships;  ^  it  ap- 
pears from  the  very  procedure  of  the  "wadiatio,"  that  shows  the 
security  and  the  principal  engagement  united  to  one  another,  as 
the  "wadium"  given  by  the  debtor  to  the  creditor  passes  immedi- 
ately ^  from  the  hands  of  the  latter  into  those  of  the  surety.^  The 
"festuca"  is  made  use  of  in  the  same  manner.  The  Edict  of  Chil- 
peric,  c.  6,  bears  witness  at  the  same  time  to  the  strict  necessity 
of  the  security  and  the  possibility  of  avoiding  the  rule.  The  man 
who  is  accused  is  held  bound  to  promise  that  he  will  submit 
to  the  proof  of  the  boiling  water;  if  he  finds  no  one  who  will  vouch 
for  him,  —  that  is  to  say,  who  is  willing  to  serve  as  a  surety,  — 
then  he  must  hold  the  "festuca"  in  his  left  hand  and  present  it 
wdth  his  right  hand  to  the  creditor,  thus  becoming  his  own  surety ;  '' 
or,  perhaps  he  presents  his  right  hand  to  the  creditor  to  give  his 
own  person  as  a  pledge  ("semetipsum  in  wadio  dare").^    This 

are  not  distinguished:  "actores  baculos  vadimonii  reis  restituunt":  Canciani, 
II,  476. 

1  "Cout.  de  Looz,"  I,  39:  the  man  who  is  convicted  of  a  crime  must  either 
take  or  give  a  pledge  before  the  sun  sets ;  this  pledge  may  consist  in  a  "  pfennig  " ; 
but  he  must  also  give  surety  ("Anc.  Cout.  de  Belgique")- 

2  "Bai.,"  15,  11;  Beaumanoir,  34,  58;  Dareste,  "Etudes,"  p.  13,  113. 

^  From  this  come  the  expressions:  To  pledge  and  to  release  ("engager" 
and  "degager");  they  say  a  pledge  when  they  mean  an  obligation.  Cf.  pledge 
of  services.  Cf.  pledges  ("gages")  of  battle.  "Wadiate  pugnam,"  one  reads 
in  the  Lombard  formulae.    Anglo-Saxon  law:  "wed"  and  "borh"  (pledge). 

*  "Fermansa,"  a  pledge  with  surety,  in  the  South  of  France  during  the 
feudal  period:  Franken,  "Pfandr.,"  p.  217;  Dii  Cange,  see  "Firmancia";  "Bai.," 
15,  11;  "  Ratchis,"  5  ("causa quae  per  wadiafirmatur").  A  guarantee  is  an  obli- 
gation imposed  upon  the  vassal  during  the  feudal  period.  English  formula: 
"pone  per  vadium  et  salvos  plegios";  Pollock  and  Maitland,  II,  lcS3. 

*  Excepting  among  the  Lombards:  three  days:  "Roth.,"  360;  "Liut.,"  15. 
6  "Sal.  Extrav.  B.,"  c.  6,  ed.  Hessels,  p.  421;  Gejjcken,  p.  284;  Brunner,  I, 

303;  Esmein,  p.  35;  Wodon,  p.  61.  Association  of  the  "wadium"  and  the  sure- 
ties ("fidejusseurs"  in  "Alam.,"  36,  3;  "Bai.,"  App.,  4;  "Roth.,"  360,  366; 
"Liut.,"  36  et  seq.,  61,  etc.;  "Fr.  Cham.,"  16,  48;  /''.  Turon,  32;  Thevenin,  no. 
96;  Pardessus,  "Dipl.,"  no.  424.  In  the  Italian  sources,  suretyship  ("fide- 
jussion")  is  called  "vadimonium"  or  "guadimonium." 

'  Wodon,  p.  141;  Gcffcken,  p.  271  (bibl.);  Schroeder,  p.  291.  If  they  had 
wished  to  reproduce  the  symbolism  of  the  suretyship,  the  debtor  should  have 
handed  the  "festuca"  to  the  creditor  with  his  left  hand  and  have  taken  it 
back  with  his  right.  If  the  debtor  gives  himself  "loco  wadii,"  what  is  the  use 
of  holding  the  "festuca"  in  his  left  hand  and  then  offering  it  with  his  right 
hand?    It  was  sufficient  if  he  offered  it  with  the  same  hand. 

8  "Cap.  leg.  Rib.  add.,"  c.  3.  Cf.  other  te.xts  cited  by  Wodon,  p.  74.  The 
"Cap.  de  Pari.  Saxon.,"  c.  27,  declares  that  the  goods  of  the  man  who  cannot 
furnish  any  surety  shall  be  placed  "in  forbanno."  We  have  here  no  doubt 
milder  provisions  than  the  old  precepts;  formerly  the  man  who  could  not  fur- 

485 


§  368]  OBLIGATIONS  [Chap.  Ill 

shows  the  transition  from  the  secured  obligation  to  the  solely 
personal  obligation,^  Already  the  "fides  facta"  of  the  Salic  Law 
only  places  the  creditor  and  the  debtor  face  to  face  with  each 
other;  there  is  no  question  in  Title  50  of  either  pledge  or  surety; 
had  there  been  any,  undoubtedly  some  allusion  would  have  been 
made  to  it.  There  must  have  been  introduced  into  usage  at  an 
early  time  provisions  against  the  debtor  himself,  —  provisions 
which  the  death  of  the  hostage  or  the  loss  of  the  pledge  might 
justify. 

§  369.  Consequences  of  Formalism.  —  Formalism  has  the  ef- 
fect of  compelling  the  judge  and  the  parties  to  adhere  strictly  to 
words  and  acts,  leaving  to  one  side  questions  of  intent.  Or,  to 
speak  more  exactly,  in  a  law  which  is  formalistic  the  will  has  no 
legal  existence  except  to  the  extent  to  which  it  is  expressed  by 
exact  words;  it  is  incarnated  in  its  material  expression;^  one  is 
bound  only  by  that  which  one  has  said.  But  in  return  for  this  one 
is  bound  by  everything  that  one  has  said.  Once  the  word  has  been 
spoken,  however  imprudent,  however  "nice,"  it  may  be,  it  cannot 
be  recalled.  This  is  the  true  meaning  of  the  German  adage,  "Ein 
Mann,  ein  Wort,"  and  it  is  singular  that  what  is  only  the  expres- 
sion of  a  rigid  formalism  should  have  been  taken  to  be  a  proof  of 
liberty.  Let  us  liken  to  this  the  French  gibe,  "  As  bulls  are  bound 
by  the  horns, — thus  people  do  foolish  things  through  their  words."  ^ 
He  who  through  inadvertency  has  promised  more  than  he  wanted 
to,  who  has  made  a  mistake  in  his  statements,  is  taken  at  his 
word.  He  cannot  go  back  on  what  he  has  said.  Mistake,  or  even 
fraud,  good  or  bad  faith,  are  things  which  make  no  difference. 
The  strict  tenor  of  the  act  is  the  only  thing  which  matters.     This 

nish  any  sureties  and  could  not  pay  immediately  fell  into  the  power  of  the  cred- 
itor, even  if  he  were  solvent.  —  As  to  the  "  Selbstbiirgschaf t "  or  giving  surety 
for  oneself,  cf.  "Cap.,"  818,  6  (I,  282);  Loersch  andSchroeder,  no.  180;  Gavdenzi, 
"Atti  d.  Romagna,"  3  et  seq.,  Ill,  25;  post,  "Suretyship." 

1  Solidarity  is  a  guarantee  analogous  to  suretyship.  It  is  presented  quite 
naturally  in  the  case  of  a  composition  due  from  the  fellow  perpetrators  of  an 
offense;  each  one  of  them  owes  the  whole  composition,  so  that  if  one  dies  or 
becomes  insolvent  the  creditor  shall  not  be  the  loser  thereby;  but  this  is  the 
only  advantage  that  he  gets ;  he  only  has  a  right  to  demand  the  amount  of  one 
single  composition  ("una  res  vertitur"),  for  that  is  the  price  of  peace.  The 
same  result  follows  in  the  case  where  the  fellow  perpetrators  of  an  offense  had 
bound  themselves  by  contract  to  pay  "una,  pariter,  in  solidum."  But  this 
situation  was  not  very  precisely  provided  for  in  the  Barbarian  law:  "Roth.," 
12,  138,  263;  "Liut.,"  107;  Heusler,  II,  259. 

2  As  to  the  mental  attitude  and  the  legal  language  of  the  Middle  Ages,  see 
the  German  "Weistumer,"  the  Spanish  "fazanas,"  the  proverbs:  Ida  de 
Diihringsfeld,  "Rue.  de  Proverbes,"  1896;  Heusler,  I,  65;  Giinther,  "Recht  u. 
Sprache,"  1898. 

3  Loysel,  357.    Cf.  "  Frib.  en  Br.,". 39. 

486 


Topic  3]  CONTRACTS.     PRANKISH   PERIOD  [§  370 

was  the  result  of  the  use  of  solemnities  ^  or  symbols  ^  and  of  for- 
mulae sanctioned  by  custom;  and  as  the  existence  of  the  former 
is  beyond  a  doubt,  so  several  indications  justify  the  conjecture  that 
essential  words  were  not  unknown  to  the  very  old  law;^  from  the 
time  when  the  gesture  was  regulated  it  would  have  been  a  sur- 
prising thing  had  speech  been  free.  It  goes  without  saying  that 
they  were  not  very  long  in  seeking  release  from  the  early  strict- 
ness. Questions  of  intent  were  taken  into  account  as  far  as  con- 
tracts were  concerned,  just  as  they  were  in  the  case  of  offenses.  If 
the  barbarian  laws  do  not  seem  to  have  taken  any  account  of  mis- 
take, fraud  seems  already  to  have  been  a  cause  of  the  nullity  of 
contracts.'*  As  a  consequence,  as  we  shall  see,  formalism  was  for- 
saken for  its  rival,  writing;  ^  this  began  by  being  nothing  more 
than  a  luxury  and  became  an  annoyance  from  which  it  was  neces- 
sary to  escape.  From  this  time  on,  —  that  is  to  say,  at  least,  from 
the  thirteenth  century,  —  the  Roman  influence  and  that  of  the 
canon  law  led  up  to  the  modern  theories. 

§  370.  Formation  of  Contracts  by  Means  of  Writings.  —  It  is 
from  the  Roman  practice  that  the  employment  of  written  docu- 
ments comes,  but  during  the  barbarian  period  this  custom  did  not 
persist  purely  and  simply;  it  underwent  an  alteration,  which  was 
all  the  more  natural  as  it  had  been  prepared  for  a  very  long  time. 
At  Rome,  in  the  law  of  the  classic  period,  a  writing  establishing  a 
contract  was  a  simple  means  of  proof.  Thus,  when  a  stipulation 
had  taken  place,  the  promisor  found  himself  bound  by  virtue  of  the 
"solemnitas  verborum,"  of  the  interrogation  and  the  reply,  and 
not  at  all  by  reason  of  the  "cautio"  which  recited  it.  But,  if  the- 
ory was  very  firm  upon  this  point,  practice  gav«  more  importance 
to  writing.    From  the  time  of  Paul  and  Ulpian  concessions  were 

*  Frequently  they  had  begun  by  being  acts  of  a  practical  nature;  time  had 
consigned  them  to  the  curiosities  of  ceremonial.  For  example,  the  act  of  meas- 
uring the  width  of  a  road  with  a  lance  placed  across  the  saddle  of  a  horse  is  a 
simple  means  of  ascertaining  that  the  way  is  free  and  is  sufficient  for  the  passing 
of  a  horseman.    "A  fortiori"  the  presence  of  witnesses  "ad  solemnitatem." 

'  Symbolism,  for  example,  in  the  placing  of  persons  in  the  care  of  some  one 
(the  hand  in  the  hand)  in  delivery,  in  renunciation  by  a  widow  of  the  property 
of  her  husband,  and  in  the  placing  under  a  person's  power  by  cutting  the  hair 
and  the  beard.  In  the  thirteenth  century  this  symbolism  is  in  full  decline: 
Decleve,  "Curiositos  du  Formalism  dans  les  Actes  et  les  Contracts"  ("Mem. 
Soc.  Sciences  Hainaut,"  1891);  Viollet,  p.  602:  the  Jews  of  Metz,  touching  of 
the  garment  for  the  formation  of  a  contract;  "Ruth,"  iv,  7. 

^  "L.  Sal.,"  50,  3:  "adprehendat  fistucam  et  dicat  verbum."  Formuht  of 
the  Lombard  Cartulary,  oath.  Paul,  "  Diac,"  I,  13:  "Sanciunt  [the  Lombards] 
libertatem  per  sagittam,  immurmurantes  patria  verba." 

*  "Bai.,"  15,9;  "Roth.,"  230. 

'  Heusler,  I,  75,  n.  7  (investiture  "per  adscriptionem"). 

487 


§  370]  OBLIGATIONS  [Chap.  Ill 

made  to  it,  especially  as  far  as  the  stipulation  was  concerned. 
This  fact  was  the  more  noteworthy  because  there  was,  so  to 
speak,  no  contract  which  was  not  terminated  by  the  clause, 
"rogavit  promisit."  The  stipulation  passed  to  the  stage  of  a 
simple  statement  in  writing,  i.  e.  a  merely  formal  recital;  if  a 
document  declares  that  the  debtor  has  made  a  promise,  it  is 
implied  that  the  creditor  has  made  a  stipulation.^  It  is  very  prob- 
able, even  before  the  time  of  Justinian,  that  the  deed  drawn  up 
between  parties  who  are  present,  and  which  mentions  the  stipu- 
lation, could  not  be  attacked  under  pretext  that  the  "verba"  had 
not  really  been  pronounced. ^  Thus  the  stipulation  tended  to  be 
absorbed  by  the  "cautio"  upon  which  it  conferred  its  efficacious- 
ness.^ The  "cartse"  of  the  Prankish  period'*  resembled  Roman 
deeds;  ^  thus  one  invariably  finds  in  them  the  final  clause,  "stipu- 
latione  subnixa."  ^  Convinced  that  the  Roman  law  demanded 
that  contracts  should  be  reduced  to  writing,^  confusing  registra- 
tion at  the  "curia"  with  drawing  up  in  writing,^  distinguishing 
imperfectly  the  question  of  proof  from  that  of  the  existence  of  the 
contract,^  seeing  in  the  "carta"  the  Roman  stipulation,  and  at- 
tributing to  it  the  "firmitas  inconvulsa"  of  the  latter/°  the  framers 

1  Paul,  5,  8,  2;  Dig.,  45,  1;  134,  2. 

2  "Inst.  Just.,"  3,  19,  12. 

^  On  the  subject  of  this  evolution  c/.,  besides  Brunner  and  Stouff,  Girard, 
"Manuel,"  p.  484;  Steuffert,  p.  23  (bibl.  and  discussion). 

*  The  "notitia,  breve"  or  " memoratorium "  serves  especially  for  the  pur- 
pose of  finding  the  witnesses  to  the  deed;  for  example,  the  purchaser  of  a  piece 
of  land  has  a  deed  drawn  up  establishing  the  fact  that  such  and  such  a  man 
sold  it  to  him.  In  the  "carta"  it  is  the  man  making  the  deed  who  speaks  (the 
vendor  promises  "ego  per  hanc  cartulam  venditionis  trado,  per  hoc  vinculum 
cautionis  spondio  prestitum  redditurum,"  etc.). 

6  Brunner,  p.  131;  Esmein,  "N.  R.  H.,"  1886,  1. 

^  Haenel,  "L.  Rom.,"  Wis.  p.  368  et  seq.:  "stibulacio  omnibus  pactis  sub- 
jicienda,"  Roman  "cautiones"  in  Girard,  "Textes,"  p.  738  et  seq.  Deeds  of 
the  Frankish  period:  Thevenin,  "Textes,"  p.  261;  Roziere,  "Form.,"  n.  47, 
51,  63;  Stouff,  p.  285.  Observe  the  clause:  "with  the  Law  'Arcadiana'  or  with 
the  stipulation  of  the  Law  'Aquilia'  which  gives  to  all  deeds  their  power." 
"Cart,  de  Redon,"  p.  260;  Roziere,  nos.  324,  245;  Brunner,  pp.  246,  225  ("sub- 
scriptioni  subnexa,"  a  confusion  of  the  stipulation  and  of  the  signing);  Stouff, 
p.  273;  Pardessus,  "B.  Ch.,"  1840,  432;  Zoepfl,  "Att.  d.  deutsch.  R.,"  II,  345; 
"Z.  S.  S.,  G.  A.,"  1881,  115;  1883,  113;  Del  Vecchio,  "S.  Claus.  cum  Stip. 
subn.,"  in  the  "Studi"  offered  to  Schupfer.  —  Cf.  after  the  revival  of  the 
Roman  law:  "Ohm,"  III,  917,  78  (in  1314).  Examples  in  England  (Lom- 
bards), Pollock  and  Maitland,  II,   181. 

'  Roziere,  nos.  122,  220.  Other  examples  in  Stouff,  p.  280.  The  Church 
and  even  the  Customs  are  often  found  to  be  connected  with  the  Roman  law. 
Thus  practice  seeks  to  justify  itself  by  taking  refuge  in  the  high  authorities. 

8  Stouff,  p.  282;  "Cart,  de  Cluny,"  725,  etc.;  "B.  Ch.,"  1860,  440. 

9  "  Bai.,"  15,  12;  Sto^iff,  p.  284.  —  Cf.  Bracton,  f.  100. 

'"  "L.  Rom.  Cur.,"  24,  2:  "causa  sine  scripto  et  sine  fidejussore  per  stipu- 
1am  finire";  Marculfe,  II,  10  et  seq.,  "App.  Marc,"  50  et  seq.;  Karsten,  p.  180. 

488 


Topic  3]  CONTRACTS.     FRANKISH   PERIOD  [§  370 

of  deeds  in  the  barbarian  period  thought  that  it  was  by  means  of 
the  writing  that  the  contract  was  formed.^  One  can  bind  oneself 
"per  cartam"^  just  as  one  can  by  means  of  the  "festuca"  or 
the  "wadium."^  —  Further,  through  Germanic  influence  it  is  not 
only  the  drawing  up  of  the  deed  which  is  taken  into  consideration, 
but  its  final  delivery  to  the  creditor.  The  "traditio  cartae"  es- 
tablishes a  formal  act,  all  the  more  readil}'  as  the  writing  was  far 
from  being  looked  upon  by  the  barbarians  as  it  might  be  in  our 
day.^  For  the  barbarian  the  writing  is  something  suspicious;  in 
these  characters,  which  are  hieroglyphics  to  him,  he  is  always 
afraid  of  finding  some  trap.  We  say,  "The  paper  allows  every- 
thing"; thus  a  German  lawyer  in  opposition  to  whom  a  royal 
diploma  was  offered  in  the  twelfth  century  ridiculed  those  who 
presented  this  deed  to  him  by  saying  to  them  that  the  pen  of  the 
scribe  had  the  ability  to  write  upon  the  parchment  anything  it 
pleased.  The  ignorance  and  distrust  which  accompanied  it  must 
have  contributed  not  a  little  towards  likening  the  "carta"  to  the 
physical  symbols  which  were  in  use  for  the  transfer  of  ownership 
and  the  formation  of  contracts.  The  Romans  and  the  barbarians 
here  unite  in  a  common  practice.^  —  Guarantees  such  as  suretyship 
and  the  pledge  are  replaced  in  the  charters  by  penal  clauses.^ 

1  "Wis.,"  5,  4,  3;  "Bai.,"  15,  13;  Esmein,  p.  16.  Cf.  "Rib.,"  37;  "L. 
Rom.  Cur.,"  2,  29;  "Ed.  Theod.,"  52.  —  Confusing  of  the  contract  and  the 
charter  which  is  called  "traditio  donatio,"  etc.  (thus  differing  from  the  "no- 
titia  traditionis,"  etc.),  wliich  is  thus  known,  "By  this  charter  I  sell,"  etc. 
Rozihre,  368,  372:  "spondeo  per  hoc  vinculum  cautionis."  The  charter  is  often 
placed  in  the  same  rank  as  the  "festuca"  or  the  "wadium,"  no  doubt  becau.se 
it  is  just  as  efficacious;  delivery  is  made  by  the  branch  or  the  charter,  etc.: 
Brunner,  p.  110;  Stouff,  p.  278;  Roziere,  244;  "Cart,  de  Cluny,"  nos.  100, 
822,  etc. 

^  Must  we  not  see  contracts  "per  cartam"  in  those  pacts  with  the  devil 
signed  in  the  blood  of  the  man  who  sold  him  his  soul? 

^  Cf.,  however,  Heusler,  I,  §  19,  II,  p.  238  (the  "carta"  would  not  always 
take  the  place  of  the  "wadium"  and  would  not  carry  with  it  executory  force). 

^  Cf.  as  to  the  Roman  period,  Huvelin,  "Tablettes  Magiques,"  1900. 

5  In  various  places;  for  example,  in  England  and  in  the  South  of  Italy,  they 
attached  a  piece  of  straw  or  a  knife  to  the  bottom  of  the  deed. 

8  Examples  of  these  clauses  in  Thevenin,  "Table,"  p.  260;  Sjogren,  "Con- 
ventionalstrafe,"  1896  (review  in  "Z.  S.  S.,"  1896,  "G.  A.,"  176;  1897,  "R.  A.," 
300);  Bluhme,  "Bokriiftigungsformeln,"  Bekker's  "Jahrb.,"  1859;  R.  Loening, 
"Ueber.  Ursprung  u.  Bedeut.  d.  Strafklauseln,"  1875  (reprinted  in  "Ver- 
tragsbruch,"  p.  534);  Heusler,  II,  238,  241;  Sfobbe,  "Handb.,"  §  174;  Fertile, 
IV,  503.  They  became  more  scarce  in  the  course  of  the  eleventh  century. 
Beaumanoir,  however,  devotes  his  c.  42  to  thom.  In  his  time  they  must  have 
served  the  purpose  of  indemnifying  the  man  who  was  successful  for  the  costs 
of  the  suit,  for  in  the  lay  court  the  loser  did  not  have  to  pay  the  costs  (33,  1, 
and  43,  40),  as  took  place  after  the  Ordinance  of  January,  1324,  "Victus 
victori"  {cf.  "Et.  de  St.  Loui.s,"  I,  93;  "Ohm,"  III,  2,  1068;  "Ord.*'  of  Dec, 
1254,  29;  "Code  Hermog.,"  5,  3),  and  as  was  already  customary  in  the  Courts 
of  the  Church :  Loysel,  859. 

489 


§  370]  OBLIGATIONS  [Chap.  Ill 

Already  frequent  at  Rome,  the  latter  assumed  in  the  documents 
of  the  Prankish  period  an  entirely  new  importance.^  They  rep- 
resent the  pecuniary  composition  due  in  the  case  of  every  offense. 
For  greater  security,  the  treasurer  is  made  an  interested  party, 
"sociato  fisco";  he  receives  a  part  of  the  "poena"  and  demands 
the  payment  of  the  whole  of  it,  rather  as  he  compels  the  per- 
petrator of  the  offense  to  pay  the  composition,  a  part  of  which 
goes  back  to  him.  Finally,  imprecations  and  maledictions,  true 
spiritual  penal  clauses,  are  added  to  the  deed  to  corroborate  the 
other  sureties.^ 

^  "L.  Alam.  "  I  2. 
.  2  rAerenm,  Table,  p.  261;  Giry,  p.  563. 


490    . 


Topic  4] 


CONTRACTS.      FEUDAL    PERIOD 


[§372 


Topic  4.     Contracts.    Feudal  Period 


§  371.  Persistence  of  the  Law  of  the 

Frankish  Period. 
§  372.  Contracts  in  Re. 
§  373.  Earnest  Money. 
§  374.  Faith-Pledging.    Blow  \\ith  the 

Palm  of  the  Hand. 


§  375.  The  Promissory  Oath. 

§  376.  The  Rule  "Solus  Consensus 
Obligat." 

§  377.  Contracts  in  English  Law. 

§  378.  Obligations  by  Means  of  Writ- 
ing and  Written  Proof. 


§  371.    Persistence  of  the  Law  of  the  Frankish  Period. — The 

law  of  the  Frankish  period  still  exists  in  its  essential  character- 
istics during  the  first  centuries  of  feudalism;  but  from  the  thir- 
teenth century  on  it  is  altered  and  disappears  in  order  to  give  way 
to  modern  institutions.  Various  causes  worked  in  this  direction 
and  contributed  towards  this  result:  the  influence  of  religious 
ideas,  the  more  energetic  part  played  by  the  State,  which  allows 
of  more  liberty  in  the  mechanism  of  contracts,  economic  changes 
which  make  of  this  liberty  a  need,  and,  in  a  general  way,  forces 
which  lead  legislation  towards  the  Roman  law. 

§  372.  Contracts  in  Re.  —  The  books  of  Customs  of  the  thir- 
teenth century  still  contain  traces  of  the  necessity  of  the  perform- 
ance of  something  for  the  formation  of  certain  contracts.^  Thus, 
according  to  the  Custom  of  Montpellier  of  1204,  sale,  that  type  of 
the  Roman  contract  of  mutual  consent,  can  only  be  formed  "re," 
or  by  means  of  the  blow  with  the  palm  of  the  hand :  "  emtio  non 
valet  sine  palmata  vel  sine  solutione  pretii  particulari  vel  universali 
vel  sine  rei  traditione"  (Art.  100).  The  Assizes  of  Jerusalem, 
Court  of  the  Citizens,  c.  27  et  seq.,  lead  one  to  understand 
that  the  parties  can  free  themselves  of  their  obligation  as  long 
as  one  of  them  has  not  performed;  once  performance  has  been 
begun,  for  example,  if  the  buyer  has  paid  one  sou  of  the  price  of 
the  sale,  this  is  no  longer  possible.^  The  "Livre  de  Jostice"  sets 
forth  that  in  a  case  of  non-performance  in  sale,  letting,  and  lending, 
the  debtor  frees  himself  by  means  of  his  oath;  it  is  otherwise  if  he 
has  received  the  thing  ("if  the  chattel  was  there");  the  duel  at 

1  Glanville,  10,  14;  Glasson,  "Inst,  de  I'Anglet.,"  II,  307;  Pollock  and  Mnit- 
Innd,  II,  191  et  seq.;  Beaummioir,  34,  18,  20;  36;  37;  38;  "Jostice,"  p.  106; 
Boufaric,  I,  26,  59.  Responsibility  of  the  debtor,  for  example,  of  the  innkeeper: 
P.  de  Fontaines,  p.  211;  Beaumanoir,  43,  41;  Hermann,  "Mobiliarv.,"  p.  129. 

2  Rule:  "Quod  non  fecit  venditio  reconciliat  tarditio":  Esmein,  p.  22; 
Marnier,  "A.  C,  Picardie,"  pp.  114,  122. 

491 


§  372]  OBLIGATIONS  [Chap.  Ill 

law  is  imposed  upon  the  parties.^  The  uncertainty  of  our  old 
books  of  Customs  in  the  case  of  two  successive  sales  to  two  different 
persons  bears  witness  to  the  wavering  of  practice  between  two 
conceptions,  —  the  old  one  according  to  which  the  sale  was  a  real 
contract  and  the  delivery  settled  the  right  of  the  purchaser,  and 
the  new  one  which  makes  of  sale  a  contract  by  mutual  agreement, 
and  which  is  able  to  attach  less  importance  to  delivery.^  There 
are  none  of  them,  until  the  time  of  the  maxim,  "  To  give  and  with- 
hold is  invalid,"  that  do  not  bear  witness  to  the  tenacity  with 
which  the  old  idea  of  the  necessity  of  the  "res"  for  the  formation 
of  a  contract  maintained  some  of  its  positions.^  In  the  eighteenth 
century  Blackstone,  speaking  of  sale,  II,  30,  is  not  very  far  from 
the  old  theory.  Moreover,  most  of  the  time,  contracts  "re"  are 
concluded  by  the  giving  of  earnest  or  establislied  by  writing,  that 
is  to  say,  they  come  within  the  class  of  acts  with  which  we  shall 
be  specially  concerned  later  on  (cf.  infra,  "Consideration"). 

§  373.  Earnest  Money.^  —  Earnest  money,  which  was  in  use  in 
certain  old  legal  systems,  —  especially  in  Greece  ^  and  at  Rome,*^ 

—  consists  in  a  sum  of  money,  or  in  some  object,  such  as  a  ring,^ 
which  one  of  the  parties,  the  buyer  or  the  seller,  gives  to  the  other 
at  the  time  of  the  formation  of  the  contract.  The  using  of  earnest 
money  is  almost  entirely  limited  to  sale,^  to  letting,  and  to  a  few 
similar  contracts.®  In  the  Roman  law  the  giving  of  earnest 
money  was  merely  of  secondary  importance,  for  it  was  simply  con- 
sidered as  a  sign  —  and  this  was  not  the  only  one  —  of  the  ex- 

1  "Jostice,"  2, 16,  8  (p.  101);  14,  8  (p.  98);  16,  7;  8,  5,  5  (p.  171);  4,  4  (p.  125). 

—  See  the  explanation  of  these  texts  in  Franken,  p.  75.  "Sormise"  there 
means,  according  to  this  learned  man,  a  simple  action,  "scliHchte  Klage," 
without  duel.    A  mere  presumption,  according  to  Esmein,  p.  49;  see  Godefroy. 

2  "He  who  wishes  to  buy  must  pay":  Loysel,  408;  "L.  d.  Droiz,"  513,  565, 
673;  Desmares,  414. 

3  Post,  "Gifts." 

*  "  Arra."  The  word  is  of  Semitic  origin.  Leonhard  in  the  "  Realencyclop." 
of  Pauly,  ed.  Wissowa,  see  "Arra,"  2,  1219;  Post,  "Grundr.,"  II,  619. 

6  Caillemer,  "R.  de  L6g.,"  1871,  p.  661;  Beauchet,  "Hist,  du  Dr.  priv^ 
Ath6n.,"  IV,  421. 

fi  Girard,  "Manuel,"  p.  539. 

'  Dig.,  19,  1,  11,  6;  14,  5,  5,  15;  "Liut.,"  30. 

^  If  earnest  money  is  also  given  in  the  case  of  betrothals  it  is  because  the 
contract  began  by  being  a  sale.  Cf.  Roman  Customs:  "Cod.  Just.,"  "de 
spons.,"  5,  l;Papien,  27;  "Wis.,"  3,  1,  3;  6,  3;  "Et.  deSt.  Louis,"  1, 128  (earnest 
money  of  marriage).  The  ring  and  the  pieces  of  money  used  in  the  Christian 
marriage  service  had  no  mystical  meaning;  they  were  simply  means  of  forming 
the  contract:  Greg.  Tours,  4,  41;  10,  14;  Sohm,  "Eheschl.,"  p.  23.  In  the 
sources  of  the  Spanish  law  the  earnest  money  of  marriage  is  understood  to 
apply  to  the  increase  of  the  marriage  portion  which  is  determined  upon  at  the 
time  of  the  betrothal:  "F.  Real,"  3,  2. 

9  "Const,  du  Chat.,"  26;  "L.  d.  Droiz,"  510;  Stobbe,  "Hand.,"  §  174. 

492 


Topic  4]  CONTRACTS.      FEUDAL   PERIOD  [§  373 

change  of  assent;  if  it  were  lacking,  the  contract  was  none  the  less 
valid.^  The  jurisconsults  give  to  earnest  money  no  other  function. 
But  the  provincial  laws  make  a  means  of  retraction  out  of  it,  so 
much  so  that  the  Lower  Empire  contrasts  the  "arrha  poeniten- 
tialis"  with  the  classic  "arrha  confirmatoria " ;  the  man  who  has 
given  earnest  is  authorized  to  retract  upon  condition  of  losing  it; 
the  man  who  has  received  earnest,  on  condition  that  he  restore 
double  its  amount.^  In  the  Frankish  period,  when  earnest  money 
was  still  being  made  use  of,  and  in  the  early  part  of  the  feudal 
period,  it  occupied  a  sort  of  intermediate  place;  it  was  a  means  of 
rendering  agreements  compulsory  which,  by  themselves,  would 
not  have  been  so.^  In  the  beginning  it  must  have  been  a  means 
of  retraction,  or,  to  put  it  better,  a  true  pledge."*  It  must  be  some- 
thing of  considerable  value  (pecuniary  or  moral)  which  the  buyer 
has  to  give  to  the  seller;^  the  latter,  who  was  liable  because  of 
something  done  by  the  buyer  to  lose  a  good  opportunity  to  make  -a 
sale,  was  found  to  be  damaged  in  advance.  Conversely,  the  seller 
who  did  not  keep  his  promise  indemnified  the  buyer  by  restoring 
him  twice  the  amount  of  the  earnest  money.  In  the  legal  system 
of  the  Frankish  period  and  the  feudal  period  earnest  money  con- 
sisted of  a  small  sum,  a  sum  too  small  for  one  to  see  therein  any 
damages.  It  becomes  a  sort  of  "wadium,"  ^  serving  to  bind  the 
parties.  Thus,  in  the  case  of  marriage  formed  by  means  of  a  pay- 
ment, the  "  pretium,"  which  was  at  first  very  high,  was  reduced 
to  a  very  small  sum,  to  a  symbolical  price.  Then  the  giving  of 
earnest  money  degenerates  into  a  mere  formality.'^     If  it  had 

»  Gains,  III,  137;  cf.  "L.  Rom.  Wis.,"  Gains,  II,  9,  14;  Papien,  35,  6. 
"  Petrus,"  II,  14,  demands  for  the  formation  of  a  sale  neither  earnest  money,  nor 
a  blow  with  the  palm  of  the  hand,  nor  wine  to  seal  the  bargain;  a  mere  meeting 
of  the  minds  is  sufficient. 

2  Esmein,  "Melanges,"  p.  413;  Girard,  "Manuel,"  p.  539. 

'  Esmein,  p.  14  (explaining  "L.  Wis."  and  "Bav.").  Cf.  "nummi  testes  "in 
Perard,  "Pieces  .  .  .  Hist.  Bourg.,"  p.  107. 

<  Cf.  "erres,"  "errements"  ("Code  Proc.  Civ.,"  349;  Beaumanoir,  30,  50, 
etc.) ;  Franken,  p.  64.  According  to  Laurihre,  "  Et.  de  St.  Louis,"  241,  ed.  Viollet, 
the  ways  of  proceeding  became  the  pledges  of  the  process;  whence  by  an  ex- 
tension comes  the  meaning  acts  of  procedure:  "Const,  du  Chat.,"  50;  see 
Ragueau,  Ferriere. 

5  "Tilgaef,"  the  Scandinavian  earnest  money:  Amira,  "0.  R.,"  I,  321,  330; 
cf.  Girard,  loc.  cit. 

^  But,  as  it  consists  more  often  than  not  in  a  sum  of  money,  it  is  readily 
understood  that  it  was  used  only  in  matters  of  sale  and  letting,  as  at  Rome; 
it  is  a  part  of  the  price,  a  payment  on  account,  which  degenerates  into  a  "wa- 
dium."    In  the  giving  of  surety  and  elsewhere  earnest  money  is  not  met  with. 

^  Controversy  as  to  the  juridical  nature  of  earnest  money.  Some  sec  therein 
a  partial  payment  and  make  of  the  contract  accompanied  by  earnest  money  a 
real  contract;  others  look  upon  earnest  money  rather  as  a  sort  of  "wadium," 

493 


§  373]  OBLIGATIONS  [Chap.  Ill 

been  given,  the  parties  are  bound,  without  being  able  to  re- 
tract; should  it  not  have  taken  place,  they  are  not  bound  and 
the  contract  has  not  been  formed.  Sometimes  the  earnest  money- 
is  deducted  from  the  price,  and  this  is  what  always  takes  place  if 
it  is  at  all  high;  sometimes  it  is  dedicated  to  a  pious  use,  such  as 
placing  the  act  under  the  protection  of  the  Divinity:  this  is 
God's  pence ;  ^  or  else  it  serves  to  buy  wine,  which  the  parties 
drink  together:  this  is  the  wine  to  seal  the  bargain.^    It  is  clear, 

and  the  contract  becomes  formal.  Heusler,  II,  253,  opposes  both  of  these 
points  of  view.  According  to  him,  the  earnest  money  has  no  binding  function: 
it  is  a  counter  prestation  in  return  for  a  renunciation;  the  vendor  who  receives 
the  earnest  money  gives  up  the  right  to  alienate  his  property  to  other  people 
until  the  expiration  of  the  period  agreed  upon;  it  has  been  sought  to  bind  him 
because  he  only  wants  money,  and  it  matters  little  from  whence  this  money 
comes;  the  purchaser  is  only  compelled  to  pay  the  price  if  there  has  been  "wa- 
diatio";  he  is  free,  but  he  will  not  abuse  his  freedom,  for  if  he  buys  it  is  because 
he  has  an  interest  in  doing  so;  he  would  not  readily  find  an  object  of  the  same 
value  at  the  same  price;  it  has  not  been  necessary  to  take  any  precaution  against 
him.  The  incomprehensible  passage  of  the  "L.  Wis.,"  5,  4,  4,  cf.  "Cod.  Euric," 
297,  furnishes  arguments  in  support  of  this  meaning.  Heusler  admits,  more- 
over, that  the  law  soon  became  modified,  and  that  the  earnest  money  fulfills 
the  function  of  making  a  contract  binding  upon  both  parties;  the  "wadiatio" 
of  the  price  seems  superfluous:  "Bai.,"  16,  10.  —  This  system  does  not  explain 
whence  comes  the  custom  of  a  counter  prestation  in  order  to  bind  the  vendor; 
it  is  easier  to  see  in  the  earnest  money  a  proceeding  serving  as  a  transition 
between  the  real  contract  and  the  formal  contract;  it  does  not  seem  to  us  to 
be  demonstrated  that  changes  of  will  are  more  to  be  feared  on  the  part  of  the 
vendor  than  on  the  part  of  the  purchaser.  The  "Cod.  Euric,"  297,  speaks  of 
a  "prsetium"  which  ought  to  be  corrected,  according  to  Heusler's  opinion. 

1  "Denarius  Dei,"  "Spiritus  sancte,"  "Gottspfennig,"  "caparra"  (Ital.). 
See  Du  Ca  «!7e,  Statutes  of  Aries,  1162-1282,  191  ("in  honoreDei  et  candele  b. 
Trophimi");  "Salon,"  1293  {Giraud,  II,  254);  "Avignon,"  "N.  R.  H.,"  1877, 
p.  593;  "Alais,"  101;  "Montpellier,"  100;  "Marseille,"  3,  6;  Beaumanoir, 
34,  60;  Desmares,  178;  Italian  texts  in  Fertile,  IV,  4:73;  Heusler,  II,  253;  Franken, 
"Pfandr.,"  p.  61,  n.  2;  Schroeder,  p.  716.  Nothing  proves  that  God's  pence 
was  at  first  given  by  the  purchaser  of  Church  property  in  order  to  recognize 
the  right  of  the  Church  over  this  property.  In  Paris,  where  it  is  still  paid  by 
the  lessee  in  case  of  the  verbal  lease  of  an  apartment,  it  has  indeed  changed 
its  object;  the  "concierges"  have  turned  it  aside  to  their  own  profit:  Dalloz, 
"Rcpert.,"  see  "Louage,"  no.  86. 

2  "Mercipotus,""Weinkauf,""Litkauf."  "Petrus,"II,  14:  "bibariavini," 
a  usage  "pluribus  locis":  Loysel,  415;  see  Ragueau,  Grimm,  pp.  191,  608; 
Haltaus,  p.  2057;  Warnkoenig,  II,  565;  Walter,  §  346;  Stohhe,  §  174;  Kraut, 
"Grundr.,"  §  124;  Heusler,  II,  255;  Franken,  p.  61;  Brunner,  II,  392;  Maiirer, 
"Vh.  d.  Gerichtl.  Weinen,"  1846;  Fertile,  IV,  473;  Huber,  IV,  850,  834  (Swiss 
Customs  of  Morat),  "  Diesse" :  two-thirds  of  the  "Trinkgeld"  ("pourboire")  at 
the  expense  of  the  purchaser,  one-third  at  the  expense  of  the  seller.  A  pretext  for 
copious  libations  which  should  have  been  prohibited.  The  wine  to  seal  the  bar- 
gain is  often  consumed  by  the  witnesses  and  the  parties  together  ("  vinum  testi- 
moniale") ;  this  is  a  means,  like  the  small  presents  that  are  given  the  witnesses, 
to  be  sure  that  they  will  bear  witness  to  the  existence  of  the  contract ;  a  means 
the  employment  of  which  can  be  readily  understood  at  a  period  when  there 
was  no  such  thing  as  legal  compulsion  to  make  them  give  their  testimony  in 
court.  Cf.  with  various  meanings  the  authors  cited.  "M6on,"  4,  117  (drink- 
ing the  wine  of  the  blow  of  the  hand).  Esmein,  "N.  R.  H.,"  1887  (wine  of  ap- 
pointment, a  Russian  custom:  the  meal  together  is  the  formality  which  seals 

494 


Topic  4]  CONTRACTS.      FEUDAL   PERIOD  [§  374 

moreover,  that  the  day  when  contracts  of  sale  and  letting  are 
once  more  formed  by  consent,  earnest  money  regains  its  twofold 
part  of  a  means  of  proof,  of  consent,  if  it  is  a  small  sum,  and  of 
a  forfeit  ^  or  penalty  agreed  upon  if  it  is  a  larger  sum  of  money .^ 

§  374.  Faith-Pledging.  Blow  with  the  Palm  of  the  Hand 
("palmata,"  "percussio  manus")-  —  The  employment  of  the 
"festuca"  and  the  "wadium"  is  given  up  in  the  feudal  period;^ 
for  these  formalities  are  substituted  the  blow  with  the  palm  of  the 
hand,^  and  the  oath.^  The  formal  contract  itself  changes  its 
character;  it  loses  self -executory  force  because  the  law  is  in  the 
habit  of  intervening  more  and  more  in  its  performance;  there  are 
more  fines  against  the  man  who  does  not  heed  the  summonses  of 
his  creditor,  and  they  appear  like  an  abuse  and  an  excess  of  harsh- 
ness; the  pledge  and  the  giving  of  surety  are  no  longer  an  indis- 
pensable accessory;  one  does  not  often  become  one's  own  surety 
any  more,  one  is  limited  to  pledging  one's  faith.  The  pledging 
thus  entered  into  is  adaptable  to  every  kind  of  obligation.^ 

The  blow  with  the  palm  of  the  hand  has  not  entirely  disappeared 
even  at  the  present  time ;  it  is  still  practised  in  our  markets  for  the 
sale  of  domestic  animals;  the  two  parties  who  have  come  to  an 
agreement  strike  palms,  or,  to  be  more  exact,  the  buyer  strikes  ^ 
with  the  right  hand  ^  the  palm  of  the  right  hand  of  the  seller.^ 

a  contract).  Schroeder,  p.  361:  "Urkundsgeld,"  retribution  of  the  witnesses, 
a  very  widespread  custom:  Pos^," Grundr.,"  11,621  (Yucatan);  Osenbriiggen, 
"Studien.,"  383. 

1  "Ass.  de  Jerus.,"  "C.  des  B.,"  c.  27  (Franken,p.QS;  Esmein,  p.  21);  163: 
"repentailles";  "Montpellier,"  101;  "Alais,"41;  "Bayonne"  (thirteenth  cen- 
tury), 118,  \;Beaumanoir,  34,  62;  c/.  49;  "  Jostice,"  10,  14,  1;  "L.  des  Droiz," 
121. 

2  Denisart,  Guyot,  see  "Arrhes"  (bibl.);  Pothier,  "Vente,"  no.  490;  Britz, 
p.  879. 

^  Traces  in  Italy  in  the  twelfth  century;  Fertile,  IV,  472. 

*  "Handschlag,"  German;  "handsale,"  English:  Blackstone,  II,  30. 

*  Oath  and  blow  with  the  palm  of  the  hand  from  the  time  of  the  Merovingian 
period:  Gregory  of  Tours,  "Hist.  PVanc,"  5,  3;  "De  Gloria  Confess.,"  68. 

*  As  to  the  character  of  this  contract,  cf.  Heusler,  II,  248;  Stobbe,  "Handb.," 
Ill,  73.  A  formal  deed?  an  abstract  promise?  See  as  to  the  Frankish  period: 
"Roth.,"  366,  and  Com.  on  367;  "Ratchis,"  5;  "Liut.,"  15;  "Sal.,"  50,  1. 
Contests  as  to  the  amount  of  the  debt  and  as  to  the  "causa  debendi." 

'  "F^rir  la  paumee"  (to  strike  with  the  palm  of  the  hand):  Grimm,  605; 
Azon,  "Summa  in  Cod.,"  2,  3:  "dicitur  (pactum)  a  percussione  palmarum" 
(a  usage  which  he  attributes  to  the  "veteres  "). 

8  It  is  also  with  the  right  hand  that  one  takes  an  oath.  As  to  the  symbolism 
of  the  hand:  Grimm,  138;  Du  Cange,  see  "Dextrai";  Puntschart,  p.  355;  Kova- 
lewsky,  114:  "I  give  you  my  hand  in  the  name  of  God";  Esmein,  p.  98  (classical 
antiquity). 

'  In  German  law  the  pronouncing  of  a  formula  ("ich  gelobe")  is  added  to 
this  act:  Puntschart,  p.  362.  Cf.  Amira,  "O.  R.,"  II,  289.  The  essential  words 
have,  it  seems,  completely  disappeared  from  French  law.    Witnesses  take  part 

495 


§  374]  OBLIGATIONS  [Chap.  Ill 

This  usage  is  very  ancient,  because  it  is  already  spoken  of  in  the 
"Petrus,"  2,  12,  together  with  earnest  money  and  the  wine  to  seal 
the  bargain;  certain  Customs  make  of  this  a  condition  of  the  vahd- 
ity  of  the  sale,  contrary  to  the  Roman  law,  to  which  the  "Petrus" 
adheres.  It  does  not  appear,  moreover,  that  the  blow  with  the 
palm  of  the  hand  was  restricted  to  the  case  of  sale;  it  may  be  ap- 
plied to  other  contracts.^  The  clasping  of  hands,  "  mutua  manuum 
complexio,"  ^  seems  to  be  equivalent  to  the  "percussio  manus."  ^ 
How  are  we  to  account  for  this  popular  usage?  To-day  one 
would  see  in  it  only  a  very  simple  means  of  manifesting  to  the 
eyes  of  everybody,  parties  and  third  parties,  the  concluding  of  the 
bargain;  up  to  this  point  there  had  only  been  conferences;  at  this 
moment  the  transaction  is  terminated;  ^  thus  the  blow  with  the 
palm  of  the  hand  would  be  almost  the  same  thing  as  the  bringing 
down  of  the  hammer  by  the  auctioneer  at  public  sales.^  But,  if 
such  is  indeed  its  significance  to-day,  it  seems  as  though  it  ought 
to  be  explained  in  some  other  manner  with  relation  to  the  past. 
This  is  a  popular  practice  derived  from  more  ancient  customs,  the 
placing  of  the  hand  within  the  hand  and  the  oath.  In  placing  one's 
hand  within  the  hand  of  some  one  else,  one  places  oneself  under  his 
authority  and  in  his  dependence.  Thus  homage  is  done  "  per  manus 
porrectionem."  ^     It  is  not  astonishing  that  the  debtor  should 

ordinarily  in  the  act,  but  it  is  not  an  absolute  necessity  under  any  of  these 
legal  systems.  It  is  not  the  same  in  the  Scandinavian  law,  where  the  presence 
of  witnesses  and  the  publishing  of  contracts  is  indispensable :  Amira,  "  O.  R.,"  II, 
320.  Cf.  Italy,  Fertile,  IV,  469;  Salvioli,  "Public,  d.  Vendita,"  1895;  Dareste, 
"Etudes,"  p.  315:  usage  in  Denmark  of  pubHshing  contracts  at  the  "ting." 

1  " Montpellier,"  100:  "emtio  non  valet  sine  palmata";  "St.  de  Marseille," 
3,  6;  "Bayonne,"  118,  1  (in  Balasque  and  Dulaurens);  "Charroux,"  1170, 
Art.  14,  and  1247,  Art.  40;  "Cout.  de  Gorze,"  7,  3,  4;  Beaumanoir,  44,  38,  40; 
"Const,  du  Chat.,"  84;  "L.  des  Metiers,"  p.  17;  Du  Cange,  see  "Palmata," 
Ragxieau,  see  "Palmee."  —  "  Jostice,"  2,  16,  3  (5  "sols."  a  blow  of  the  hand  for 
a  waiver) ;  1,  2,  7. 

2  Meon,  "Fabl.,"  I,  179;  Glasson,  "Inst,  de  I'Anglet.,"  Ill,  234  (Wales); 
"SagadeNial,"  71:  " dextris  datis  et  acceptis  " ;  Grimm,  605 :  mere  contact  with 
the  tips  of  the  fingers,  "stupfen,"  "doppen."    Cf.  Hatzfeld,  "Diet." 

'  A  trivial  and  genteel  civility  has  taken  possession  of  this  to  extract  from 
it  our  commonplace  handshake.    Thus  do  our  institutions  end. 

*  Snnesen,  17,  1:  (letting)  "solo  consensu  celebratur,  sed  impune  rescin- 
ditur,  donee  percussione  manus  unius  in  manum  alterius  roboretur."  The 
"Livre  de  Jostice,"  2,  16,  3  (p.  100),  allows  a  man  to  free  himself,  even  when 
there  has  been  a  blow  with  the  palm  of  the  hand,  upon  condition  that  he  swear 
that  he  cannot  carry  out  his  promise  and  that  he  pay  a  fine.  Cf.  "Alais,"  41, 
in  "Olim,"  III,  p.  1474. 

^  In  some  texts  "palmata"  is  sjmonymous  with  earnest  money:  Fertile,  IV, 
472;  Esmein,  p.  27,  sees  in  it  rather  an  imitation  of  the  payment  of  the  price 
and  a  fictitious  delivery.  But  the  ceremony  of  the  blow  with  the  palm  of  the 
hand  scarcely  accords  with  this  interpretation:  Glasson,  VII,  590. 

*  Brunner,  II,  270.  The  kiss  of  peace  is  here  met  with  as  in  other  contracts: 
Fertile,  IV,  472. 

496 


Topic  4]  CONTIL\CTS.      FEUDAL   PERIOD  [§  375 

have  put  his  hand  into  the  hand  of  the  creditor,  as  though  to  give 
himself  as  a  pledge.^  In  this  symboHcal  act  there  has  been  seen  a 
sort  of  secularized  oath,  which  was  taken  neither  on  the  relics  nor 
on  the  Gospels,  and  by  which  one  did  not  call  down  upon  oneself 
the  Divine  anger,  but  which  one  respected  just  as  much  as  a  true 
oath.^  As  it  is  forbidden  to  swear  in  vain,  voluntary  recourse  is 
had  to  this;  one  pledges  one's  faith  just  as  one  became  one's  own 
surety  formerly;^  this  sort  of  act  is  undoubtedly  what  the 
books  of  the  Middle  Ages  designated  by  the  name  of  faith- 
pledging,^  sworn  faith,  ^  and  which  the  Romanists  called  the 
stipulation.^ 

§  375.   The  Promissory  Oath,  which  sprang  from  the  old  usages  '' 

1  The  "Treugelobniss"  of  the  German  law  is  concluded  by  an  oath  or  by 
giving  one's  word  of  honor,  and  by  carrying  out  the  "  Handschlag."  In  Saxony 
one  raises  the  hand  "curvatis  digitis":  Heusler,  II,  245;  Puntschart,  p.  306. 
C'/.  as  to  Scandinavian  law,  Amira,  "O.  R.,"  I,  290;  II,  289;  and  as  to  Anglo- 
Saxon  law,  Edward,  2,  6;  "Cap.,"  803,  3. 

2  Beaumanoir,  34,  38,  "  jura  "  or  "  fianca."  Then  he  asks  himself  if  those  who 
have  made  an  agreement  by  means  of  their  fealty  or  by  an  oath  and  have  not 
carried  out  their  promises  can  be  held  as  perjurers:  "Et.  de  St.  Louis,"  I,  31, 
67;  "Ass.  de  Jerus.,"  "C.  des  B.,"  162:  "Jurerafier  ou  plevir  une  femme," 
means  to  become  engaged  to  her. 

'  They  say:  to  give  one's  word,  to  pledge  one's  faith  ("fides  plivita," 
"Montp.,"  69),  to  engage,  to  promise :  "  Chanson  de  Roland,"  403;  Beaumanoir, 
34,  9;  34,  60;  "Jostice,"  178,  181;  ';Const.  du  Chat.,"  26;  "L.  des  Metiers," 
p.  77  (ed.  Depp.),  to  engage  one's  faith.  Supra,  "Betrothals":  Esmein,  p.  72; 
Franken,  p.  64,  n.  2 :  to  promise  solemnly  and  in  the  same  way  as  when  one  gives 
earnest  m^oney.  Numerous  deeds  (cited  by  Puntschart)  where  one  reads: 
"fide  interposita  promittere,  fidem  dare  ore  et  manu,"  etc.:  "Loven"  in  the 
"Sachsensp.,"  I,  7  ("Gelobniss,"  "Treugelobniss,"  c/.  "Erbenlaub")  has  the 
same  meaning,  i.  e.,  to  engage  one's  faith,  to  make  oneself  responsible:  Stobbe, 
§  174:  "per  fidem  nostram  christianam  et  honorem  nostrum  militarem"  (in 
1394).    England:  to  engage  one's  Christianity:  Du  Cange,  see  "Christianitas." 

^  Beaumanoir,  38,  15;  11,  47,  etc.  (Salmon,  "Gloss."):  Boutaric,  I,  30,  42; 
Desmares,  154;  Lacurne  de  Sainte-Palaye,  see  Godefroy,  "Treves  et  Assure- 
ments";  "Et.  de  St.  Louis,"  I,  29,  31,  111;  Bigelow,  "Hist,  of  Proced.," 
App.  13. 

*  Esmein,  p.  65;  Pollock  and  Maitland,  II,  188;  Puntschart,  486;  Amira, 
"Recht,"  188. 

^  According  to  Puntschart,  the  German  "Treugelobniss"  is  not  the  binding 
contract  itself;  it  is  an  act  apart,  intended  to  make  the  debtor  responsible;  it 
may  even  happen  that  it  serves  merely  to  engage  the  responsibility  of  a  surety 
or  of  a  "Treuhander"  (p.  406,  Vol.  II)  to  the  exclusion  of  the  debtor  (p.  438, 
Vol.  II).    It  seems  to  us  that  this  theory  is  a  little  exaggerated. 

^  Treaties  sealed  by  sacrifices  and  imprecations:  Tacitus,  "Germ.,"  24 
(fides).  On  this  text  cf.  Puntschart,  p.  487.  Perhaps  the  "fides  facta"  of 
the  Salic  Law  was  not  given  without  an  oath,  or  was  only  a  sort  of  oath  after 
the  manner  of  the  Roman  stipulation.  Under  the  Lower  Empire  the  oath  had 
made  for  itself  a  certain  place  in  legislation  ("Cod.  Just.,"  2,  42,  3;  2,  4,  41; 
4,  30,  16;  "Nov.,"  74,  5);  the  "Auth.  Sacramenta  Pubcrum"  of  Frederick  I 
appears  rather  as  the  complement  of  the  imperial  legislation  than  as  a  radical 
innovation:  "Cod.  Just.,"  2,  28,  1.  —  Cf.  Mussulman  usages  "Mille  et  Une 
Nuits,"  transl.  Mardrus,  IX,  11,  85  (to  recite  the  preliminary  Fatiha  of  the 
Koran  in  order  to  seal  a  pact). 

497 


§  375]  OBLIGATIONS  [Chap.  Ill 

and  corresponded  to  Customs/  was  instituted  by  the  canon  law.^ 
Two  conditions  are  required,  as  a  general  thing,  for  the  regularity 
of  the  oath:  1st.  The  pronouncing  of  a  formula  by  which  one  calls 
God  to  witness  one's  undertaking  and  binds  oneself  to  Him  to 
carry  it  out;  the  terms  vary:  one  often  says,  "Per  Deum  juro  et 
sic  me  Deus  adjuvet,"  or,  again,  one  swears  by  the  Gospels,  the 
saints  or  the  cross,  —  that  is  to  say,  by  a  sacred  thing.^  —  2d. 
Certain  gestures  in  connection  with  the  verbal  declaration.  The 
latter  should  be  pronounced  with  the  right  hand  resting  on  the 
relics  or  on  the  Gospels  ("juramentum  corporaliter  prsestitum")  ^ 
or,  at  least,  with  the  right  hand  extended  or  raised.^  The  effects 
of  the  oath  consisted  in  a  principal  obligation  towards  God,  and  in 
a  secondary  obligation  towards  the  creditor.^  One  might  de- 
mand the  carrying  out  of  the  latter  before  the  Courts  of  the 
Church.^  Just  like  the  Roman  stipulation,  this  was  a  unilateral 
and  formal  contract,  one  which  was  valid  without  any  consider- 
ation,^ and  which  could  be  applied  to  every  kind  of  object,  to 
create  a  new  obligation  {promissory  oath)  or  confirm  a  pre-existing 
obligation  {confirmatory  oath).  If  the  promisor  pledged  himself  to 
God,  the  debt  could  not  be  lost  by  prescription,^  which  was  a  pro- 
tection for  the  creditor.  But  to  make  up  for  this,  the  engagement 
was  strictly  personal  because  of  its  religious  character;  so  that  it 

1  "One  could  not  affirm  anything  in  the  Middle  Ages  without  reinforcing 
one's  affirmation  by  an  oath":  G.  Paris,  "Extr.  de  la  Chanson  de  Roland," 
1887,  p.  279;  "  M^lusine,"  III,  156,  566:  oaths  and  profanity;  for  example,  "ma 
foi,"  "ma  fi"  (my  faith),  etc.;  the  oath  of  St.  Louis,  according  to  Joinville, 
V,  766;  "The  faith  which  I  owe  you."  —  Cf.,  however.  Pollock  and  Maitland, 
II,  187  (prohibition  of  swearing  in  vain  and  its  effects). 

2  Decree  of  Gratian,  2d  p.,  Cause  22.  Dig.  X,  2,  24;  "Sexte,"  2,  11.  See 
the  commentaries  on  these  texts  and  the  commentaries  like  those  of  Innocent 
IV,  Hostiensis  and  Panormitanus.    Respect  for  the  oath,  "Capitul.,"  789,  63. 

3  P.  Lombard,  "Sent.,"  Ill,  39;  F.  "Close"  on  c.  1,  C,  22  q.  1;  cj.  c.  11 
and  12.  —  The  simple  "fides  promissa"  is  equivalent,  according  to  the  old 
canonists,  to  the  oath:  Hostiensis,  "De  Jurej.,"  p.  185.  In  the  sixteenth  cen- 
tury, Covarruvias,  "Op.,"  p.  249,  no  longer  admits  it.  —  Esmein,  "Contrats," 
pp.  103,  99  ("fides  corporaUs,  manuahs"). 

*  From  the  Roman  period  on. 

*  "Cod.  Just.,"  2,28,  1  ("per  Jovem  lapidem?").  —  In  order  to  see  how  far 
formalism  goes,  cf.  "Roisin,"  p.  32  et  seq.  (one  loses  one's  case  if  one  does  not 
hold  one's  thumb  pressed  against  the  palm  of  one's  hand  or  if  one  moves  one's 
hand).  — Super cheries,  cf.  c.  10  and  11,  C,  22,  q.  5  ("Close").  Anecdote  as 
to  the  oath  given  by  Harold  to  William  the  Conqueror. 

8  Panorm.,  on  Dig.  X,  2,  24,  1;  "Decis.  Capellae  Tolosanse,"  182,  7:  "Deus 
recipit  obligationem  in  favorem  partis;  remittente  ergo  parte  et  ipse  Deus 
remittit." 

'  Gui  Pape,  "Q.,"  190;  Bartole,  s.  1,  56,  Dig.,  46,  1. 

8  Innocent  IV,  on  c.  6,  Dig.  X,  3,  7,  p.  370.    Cf.  "Vow." 

9  "Decis.  Capellae  Tolos.,"  p.  183;  Benedicti,  see  "Testam.,"  Ill,  no. 
41. 

498 


Topic  4]  CONTRACTS.      FEUDAL   PERIOD  [§  375 

did  not  descend  to  one's  heirs.^  It  was  sufficient  if  one  had  at- 
tained the  age  of  discretion  for  one  to  be  able  to  pronounce  a 
vaUd  oath:  those  minors  of  twenty-five  years  who  had  attained 
puberty,  according  to  the  Authentic,  "Sacramenta  puberum," 
were  capable  of  binding  themselves  by  an  oath.^  Fraud  annulled 
the  act,  but  not  violence  ("coactus  voluit");  as  far  as  mistake  was 
concerned,  it  was  doubtful.^  Thus  we  see  by  this  means  that  the 
efficaciousness  of  the  oath  was  not  easily  questioned.  The  canon- 
ists brought  to  bear  upon  it  an  important  restriction  drawn  from 
its  religious  character;  they  laid  it  down  as  a  principle  that  one 
was  not  obliged  to  keep  an  oath  if  its  carrying  out  placed  in  danger 
the  safety  of  the  soul  of  the  man  who  had  taken  it:  "One  is  not 
obliged  to  keep  an  oath  made  to  the  devil,"  says  the  popular 
proverb.^  As  soon  as  the  safety  of  the  soul  is  no  longer  involved 
the  oath  still  binds,  even  if  it  is  made  in  violation  of  the  civil  law  ^ 
or  the  canon  law;  ^  for  example,  the  oath  of  the  woman  who  binds 
herself  for  another,  contrary  to  the  Velleianum  Decree  of  the  Sen- 
ate, the  oath  of  the  woman  who  has  a  marriage  portion  to  abide  by 
the  alienation  of  the  real  property  forming  a  part  of  the  marriage 
portion,  the  oath  to  abide  by  a  gift  between  spouses,^  etc.^  Thus 
applied,  the  canonic  theory  had  serious  consequences,^  especially 
as  far  as  the  confirmatory  oath  was  concerned.  The  obligation  to 
which  it  was  joined  was  sometimes  valid,  and  then,  as  a  conse- 
quence of  the  oath,  the  promisor  came  under  the  jurisdiction  of 

*  Panorm.,  on  14  Dig.  X,  "de  jurej.,"  no.  3.  C/.,  however,  Seraphinus, 
p.  305.  —  Validity  of  the  oath  by  proxy:  C,  33;  Dig.  63;  Dig.  X,  2,  7,  6;  C.  1, 
§  "Verum,"  VI,  3,  16;  Covarruvias,  "Op.,"  I,  2Q2  et  seq.  —  Transmissibility 
of  isspts 

2  Cf.  ''Glose"  on  c.  10,  Dig.  X.,  4,  1;  Covarruvias,  "Op.,"  I,  p.  404  (one 
who  has  not  attained  puberty  "doU  caper").  —  Innocent,  c.  3,  Dig.  X,  "de 
voto"  (oath  of  the  "filius"  or  of  the  "fiUa  famiUas").  C.  15  and  19,  C,  22, 
q.  4.     Cf.  "Numbers,"  xxx,  3.  —  Fertile,  IV.  496. 

'  Panorm.,  on  c.  28,  Dig.  X,  "De  Jurej.,*'  no.  3.  —  Dig.  X,  2,  24,  2,  8,  15 
("Glose");  Seraphinus,  p.  475.  —  As  to  the  three  things  accompanying  the 
oath,  —  "justitia,  judicium  et  Veritas,"  —  cf.  Esmein,  p.  266.  —  The  con- 
firmatory oath  was  only  valid  if  it  were  free  from  all  defects:  Esmein,  p.  331; 
"Auth.  Sacramenta  Puberum";  Beaumanoir,  34,  38,  39. 

^  Gratian,  c.  23,  C,  22,  q.  4;  Dig.  X,  "De  Jur.,"  8,  "Glose";  Chaisemartin, 
p.  258;  Beaumanoir,  38,  16;  34,  24. 

^  But  not  in  violation  of  good  morals  and  natural  equity:  Sexte,  "De  Reg. 
J.,"  59.  Cf.  Public  Order  in  the  existing  law;  "T.  A.  C.,  Norm.,"  4  (alienation 
of  dower). 

^  For  example,  the  oath  to  pay  interest,  for  he  who  takes  this  oath  does 
not  commit  a  sin  in  carrying  it  out:  Dig.  X,  2,  24. 

^  Panorm.,  on  c.  28,  Dig  X,  "De  Jur." 

8  Renunciation  to  future  succession,  forfeiture  clause,  etc. 

*  The  Courts  of  the  Church  passed  upon  the  validity  of  the  oath;  Gui 
Pape,  "Q.,"  199. 

499 


§  375]  OBLIGATIONS  [Chap.  Ill 

the  Courts  of  the  Church,  the  obhgation  ceased  to  be  subject 
to  prescription^  and  to  be  the  subject  of  a  set-off;^  it  had  to 
be  carried  out  in  kind,  if  it  consisted  in  an  act.^  Sometimes  the 
obhgation  was  void,  and  in  this  case  a  distinction  was  drawn,* 
and  there  were  suppositious  cases  where  the  oath  vaHdated  an 
obhgation,  and  others  in  which  the  contract  remained  void  al- 
though the  oath  was  vahd;  but  no  agreement  could  be  reached  in 
these  supposed  cases,  in  spite  of  an  attempt  at  systematizing  which 
was  made  by  Bartolus.^  In  order  to  deal  with  the  abuses  resulting 
from  the  employment  of  the  oath,  the  canonists  made  use  of  three 
means  {cf.  "Exc.  doli,  in  integrum  restitutio")  at  Rome:  1st. 
Theory  of  implied  conditions:  the  oath  is  only  binding  if  matters 
remain  as  the  promisor  had  foreseen  that  they  would  (for  example, 
if  he  does  not  become  insolvent,  or  a  marriage  portion  is  promised 
on  condition  "si  nuptise  sequantur"),  or,  again,  if  the  other  con- 
tracting party  carries  out  his  promise  ("non  servanti  fidem  non 
est  fides  servanda").®  —  2d.  Intervention  of  the  ecclesiastical  judge 
in  order  to  compel  the  party  who  has  received  the  oath  to  release 
the  party  who  had  made  it  when  there  would  be  vexatious  conse- 
quences (for  example,  a  promise  of  interest).^  —  3d.  The  ecclesi- 
astical superior,  the  pope  or  a  bishop,  has  the  right  to  release 
every  person  from  his  oath  if  there  is  a  just  cause  for  so  doing. ^ 
The  canonic  theory  of  the  oath  had  succeeded  in  being  accepted 
by  the  secular  courts;  but  it  had  the  twofold  defect  of  taking 
away  persons  from  under  their  jurisdiction  for  the  benefit  of  the 
ecclesiastical  courts,®  and  of  allowing  of  the  evasion  of  the  pro- 
hibitions of  the  laws.     There  was  some  thought  of  forbidding 

1  ^Decis.  Cap.  Tolos.,"  q.  221;  contra,  Gut  Pape,  "Q."  199. 

2  It  was  perjury  not  to  carry  out  an  oath.  The  penalty  for  perjury  under 
the  Carolingians  was  the  loss  of  the  hand.  Afterwards  it  was  disgrace  in 
law  or  in  fact,  and  arbitrary  punishments:  eee  Ferriere,  (bibl.);  "Ord."  of 
1269,  1273,  etc. 

3  Panorm.,  Dig.  X,  2,  24,  16. 

*  Panorm.,  Dig.  X,  2,  24.  28,  no.  8;  J.  Faure,  "Ad.  Inst.,"  I,  8,  no.  10. 

^  On  "  R. "  56,  pr . ,  D . ,  "  de  fidej . " :  the  oath  cannot  strengthen  contracts  that 
are  contrary  to  good  morals,  to  the  public  interest,  or  void  by  reason  of  a 
defect  in  form;  it  can  strengthen  those  that  are  prohibited  in  the  interest  of 
individuals,  especially  the  debtor,  or,  again,  those  that  are  furnished  with  an 
action,  such  as  the  stipulation  for  another:  Masuer,  XI,  16. 

'  Dig.  X,  2,  24,  3.  A  preventive  oath,  which  invalidated  those  that  one 
might  take  afterwards:  Hostiensis,  p.  187.    Cf.  Mental  restrictions  of  the 

C3.Slllsts 

'  Dig.  X,  2,  24,  1,  20:  5,  19,  13;  "Jostice,"  p.  329. 

8  Roman  texts  cited  oy  Hostiensis,  fo.  185  (Dig.,  "ad  municip.  1.  impera- 
tores");  Gui  Pape,  "Q."  140,  124. 

9  Complaints  made  by  the  Diet  of  Worms,  1521;  Schilter,  "De  Libert. 
Eccles.  Rom.,"  p.  902. 

500 


Topic  4]  CONTRACTS.      FEUDAL   PERIOD  [§  376 

notaries  to  append  the  oath  to  contracts.^  The  determination 
which  was  arrived  at  was  to  give  the  king  the  right  to  release  from 
the  oath  ^  and  "  to  declare  null  and  void  every  oath  which  was  con- 
trary to  a  provision  of  the  law,  because  this  was  contrary  to  good 
usage." '  By  this  means  the  promissory  oath  lost  almost  its  en- 
tire usefulness.^  The  canonic  theory  had  at  least  contributed 
towards  causing  a  respect  for  one's  given  word  to  enter  into 
Customs  and  to  destroy  certain  legal  prohibitions  which  had 
become  useless. 

§  376.  The  Rule  "Solus  Consensus  Obligat." — The  Roman  law 
was  not  so  far  removed  from  this  rule  as  would  seem,  with  its 
contracts  of  mutual  agreement,  its  lawful  pacts  (gift),  and  pre- 
torian  pacts,  its  stipulation  reduced  to  nothing  more  than  a 
clause  in  written  deeds.  Moreover,  Pre-Glossators  and  Glossa- 
tors upheld  the  old  principle.  There  is  no  civil  obligation  "  solo 
consensu."  ^  It  is  with  the  canon  law  that  the  impetus  in  the  op- 
posite direction  started.^    For  the  theologians,  the  man  who  does 

1  Fournier,  "Offic,"  p.  87;  "Ord."  of  1302,  86  (I,  344);  "Songe  du  Verg.," 
1,  2,  c.  175;  Benedicti,  see  "Duas  habeus,"  no.  247;  Glasson,  VII,  593.  Italian 
Statutes  of  the  thirteenth  century:  Fertile,  loc.  cit.  In  the  sixteenth  century 
an  oath  is  looked  upon  as  an  accessory  part  of  the  contract;  consequently, 
it  is  for  the  lay  judge  to  take  cognizance  of  it;  the  ecclesiastical  judge  only 
passes  upon  perjury.  The  "Ord."  of  August,  1539,  Art.  1;  Beaumanoir,  34, 
38,  c/.  11,  32,  makes  no  mention  of  the  competence  of  the  Courts  of  the  Church. 

2  Chassaneus,  on  "  Bourg.,"  p.  653.  The  Chancery  began,  in  the  delivery  of 
letters  of  restoration  annulling  contracts,  by  reserving  to  the  ecclesiastical 
power  the  necessary  dispensation  (provided  that  the  petitioner  had  been  duly 
granted  a  dispensation  by  his  own  prelate):  Benedicti,  no.  247;  "Dec.  Cap. 
Tolos.,"  q.  148;  Edict  of  Nantes,  before  1598,  24;  Brodeau,  "Cout.  de  Paris," 
I,  529,  no.  13;  Rehuffe,  "De  Lit.  Dilat.,"  1,  1,  69.  —  But  this  ecclesiastical 
dispensation  was  granted  without  any  examination  ("Songe  du  Verg.,"  loc. 
cit.;  "Dec.  Cap.  Tol.,"  q.  62;  Fevret,  "Abus,"  7,  2,  43),  so  much  so  that  in 
the  end  when  a  man  took  an  oath  he  no  longer  made  a  reservation  as  to  the 
rights  of  the  Church  (end  of  the  sixteenth  centurv):  Imbert,  "Pratique,"  1.  1, 
c.  33;  Ranchin,  on  Gui  Rape,  "Q.,"  140.  Cf.  194,  225.  —C/.  "Close,"  Dig.,  37, 
14, 6, 4;  "L.  Imperatores,"  D.,  "ad  Municip.,"  "L.  fin.  de  re  munic."  Thence- 
forth the  king  could  annul  in  advance  oaths  that  were  contrary  to  his  laws: 
Chassan.,  on  "Bourg.,"  p.  664;  Constantin,  on  "Ord.,"  1539,  p.  4. 

3  Bnrlole,  on  1.  56,  "pr.,"  D.,  46,  1;  Panorm.,  Dig.  X,  2,  24,  6.  — "Close" 
on  c.  28,  Dig.  X,  2,  24;  "L.  des  Droiz,"  no.  848;  Imbert,  "Enchir.,"  p.  108; 
Doneau,  "Comm.  de  Jure  Civ.,"  1.  24,  c.  9.  —  Cf.  Fertile,  IV,  496. 

*  Covarruvias,  "Op.,"  I,  p.  255;  Masuer,  20,  3;  Louet,  D,  12;  M,  7,  etc.; 
Pothier,  "Oblig.,"  104;  Martin,  "Inst.  Jur.  Canon.,"  II,  91  (1788). 

6  "Wis.,"  5,  2,5et  seq.  Cf.  "Interpr.  wis."  onPaul,  1,  1;  "Glosede  Turin," 
357;  "Petrus,"  2,  12;  4,  26:  "  Brachylogus,"  3,  1,  3;  2,  7;  9,  4;  Azo,  "ad 
Cod.,"  2,  3;  Accursius,  "D.,''  2,  14,  7,  4  and  5.  See  in  Karsten,  p.  110  et  seq., 
the  analysis  of  the  opinions  of  Placentinus  and  Azo;  the  latter  likens  the 
pact  to  the  contract  and  admits  the  existence  of  six  "pacta  vestita"  (classical 
contracts,  "cohajrentia  contractus,"  unnamed  contracts)  and  seven  excep- 
tions to  the  rule  that  the  naked  pact  does  not  bind.  Cf.  Bracton,  fo.,  108; 
Britton,  1,  29,  2. 

*  Other  systems  in  Seuffert,  p.  4.     There  is  no  need  to  connect  it  with  the 

501 


§  376]  OBLIGATIONS  [Chap.  Ill 

not  keep  his  promise  becomes  guilty  of  a  lie,  —  that  is  to  say,  a 
sin;  thus  he  incurs  the  ecclesiastical  penalties;  as  a  consequence, 
one  is  led  to  respect  every  agreement,  and  from  the  mercenary 
point  of  view  one  passes  to  the  civil  point  of  view.  The  Council 
of  Carthage,  in  348,  had  laid  down  this  rule  with  respect  to  a 
written  agreement:  "Pacta  custodiantur " ;  this  formula  plays  a 
part  in  the  Decretals,  having  therein  a  general  validity,^  and  the 
canonists  gave,  in  order  to  procure  the  carrying  out  of  agreements, 
an  action  "ex  nudo  pacto"  before  the  Courts  of  the  Church,^  In 
a  spirit  of  equity  the  Italian  commercial  practice  of  the  fourteenth 
century  adopted  the  same  rule.^  In  the  civil  practice  the  custom 
of  accompanying  every  agreement  with  an  oath  accustomed  people 
to  a  respect  for  the  given  word,  and  one  can  understand  that  a 
time  came  when  faith-pledging  and  the  blow  with  the  palm  of  the 
hand  could  be  left  out  without  any  detriment  to  the  validity  of 
the  pact ;  the  heart  should  follow  the  word,  as  is  said  in  the  "  Livre 
de  Jostice,"  which  without  doubt  was  inspired  by  the  canon  law 
from  which  it  so  often  reproduced  long  extracts.  The  civil  jurists 
themselves  held  two-sided  pacts  as  binding.^    It  is  only,  however, 

old  Germanic  law,  as  has  been  attempted  (only  since  the  seventeenth  century). 
"N.  R.  H.,"  1866,  180:  a  confusion  of  the  "carta"  with  the  "notitia." 

1  Let  us  also  observe  that  the  most  important  of  all  contracts,  that  of 
marriage,  is  formed  "solo  consensu." 

2  Ecclesiastical  penalties  against  anybody  who  breaks  the  pact :  "  Carthage," 
348,  canon  12  (with  regard  to  a  transaction  in  writing  between  bishops  as  to  the 
limits  of  their  dioceses),  Dig.  X,  1,  351  (generalizations).  On  this  c.  1,  Bernard 
de  Parme;  Gratian,  2d  part,  22,  5,  12.  Innocent  IV  on  this  same  c:  excommu- 
nication (following  the  "denuntiatio  evangelica,"  a  sort  of  criminal  procedure). 
But  later  on  the  action  is  a  civil  one,  for  it  is  designated  under  the  name  of 
"Condictio  ex  canone  juramenti"  {Gratian,  loc.  cit.).  Cf.  Joh.  Teutonicus,  on 
c.  66,  C,  12,  q.  2.  On  c.  1,  Dig.  X,  "de  pactis,"  see  Panormitanus,  Sandeus, 
Gonzalez  Telez;  Thomas  Aquinas,  "Summa  Theol.,"  sec.  q.  110,  3  and  q.  88,  3. 
Difficulties  arise  on  the  point  of  knowing  whether  the  canonic  rules  could  be 
applied  before  the  secular  tribunals.  In  the  fourteenth  century  the  juris- 
consults of  the  civil  law  established  this  as  the  opinion  of  the  canonists  by 
pointing  out  that  it  is  opposed  to  the  "jus  ci\'ile."  The  question  is  connected 
with  a  determination  of  the  legislative  and  judicial  competence  of  the  Church: 
Joh.  Andrae,  "ad.,"  c.  2,  VI,  5,  13:  "ubi  versatur  periculum  animse  leges  suc- 
cumbunt  canonibus."  To  which  Cinus,  "ad  Auth.  Clerus,"  c.  33  ("Cod. 
Just.,"  1,  3)  replies  that  if  the  Church  had  jurisdiction  "ubicunque  est  pec- 
catum,  turbarentur  rerum  officia." 

'  Bartole,  on  1.  48,  "D.,  mand.,"  17,  1;  Balde,  "Lect.  s.  D^cr^tales,"  c.  1, 
Dig.  X,  "de  pactis,"  no.  8.  They  judge  according  to  equity,  says  Bartole  in 
the  "curia  mercatorum."  Now,  in  equity  it  is  understood  that  there  is  no 
distinction  made  between  the  pact  and  the  stipulation.  Cj.  Alexand.  Tar- 
tagnus,  "Cons.,"  3,  41,  2;  Karsten,  p.  228. 

■•  Alexandre  Tartagnus,  1477.  A  naked  pact  gave  rise  to  a  natural  obliga- 
tion; the  clause  by  which  the  usufruct  was  reserved,  which  was  applicable 
to  it,  made  it  obligatory;  furthermore,  the  reiteration  of  the  pact  is  a  guarantee 
against  surprise  and  shows  the  seriousness  of  the  consent.  Cf.  Huber,  IV,  12 
(delay  in  which  to  change  one's  mind). 

502 


Topic  4]  CONTRACTS.     FEUDAL  PERIOD  [§  376 

towards  the  end  of  the  fifteenth  century  that  the  modern  principle 
was  declared  in  Italy.^  In  France  it  was  not  fully  accepted  until 
about  the  same  date.  But  did  not  the  jurisconsults  of  the  thirteenth 
century  recognize  it?  It  would  seem  so,^  if  we  rely  upon  certain 
formulae  which  cannot  be  accounted  for  without  difficulty,  such 
as  this:  "Agreements  overcome  the  law,"  "which  is  related,"  says 
Beaumanoir,  "to  the  rule  that  'All  agreements  are  made  to  be 
kept.'"^  In  this  we  must  only  see  a  translation  of  the  Roman 
rule,  "  Pacta  sunt  servanda,"  just  as  there  is  a  borrowing  from  the 
canon  law  in  the  words  of  the  "Livre  de  Jostice  ":  "It  is  ordered 
that  [in  allusion  to  this  law]  agreements  which  are  in  conformity 
with  good  customs  shall  make  a  bargain,  and  not  the  blow  with 
the  palm  of  the  hand;  and  the  thoughts  should  confirm  the  words."  ^ 
These  formulae  did  not  at  first  have  the  practical  bearing  which 
we  should  be  tempted  to  attribute  to  them.  They  contain  the 
germ  of  the  new  law,  but  they  are  not  very  much  in  accord  with 
the  judicial  law  of  the  thirteenth  century;  the  same  juriscon- 
sults who  pronounced  them  —  J.  d'Ibelin,  Beaumanoir,  P.  de 
Fontaines  —  forgot  all  about  them  as  soon  as  they  passed  to 
practical  solutions  of  them;  their  contradictions  are  proof  that 

1  P.  Picus,  on  1.  10,  "C,"  "de  pactis,"  §  5;  Socin  le  J.,  "Cons.,"  56.  Cf. 
theory  of  Bartole  in  Karsten,  p.  165.  —  In  Germany  in  the  seventeenth  cen- 
tury authority  of  Carpzov,  p.  392  ("  Schandgemalde  "  until  1577). 

2  Esmein,  p.  42. 

3  Loysel,35Q;  E'isen/iari,  1  ("Geding  bricht  Landrecht");  "Ass.  de  Jerus.," 
J.  d'Ibelin,  111;  "C.  des  B.,"  103;  P.  de  Fontaines,  15,  6;  "Anc.  Us.  d'Artois," 
7,  14;  Beaumanoir,  34,  2,  23;  Bradon,  2,  5.  Cf.  Franken,  p.  52;  Esmein,  p.  29. 
Cf.  Civil  Code,  1134;  Dig.,  1.  1,  "de  pactis." 

*  Beaumanoir,  34,  2;  cf.  34,  60:  "A  bargain  is  made  as  soon  as  both  parties 
have  given  their  consent  to  keep  it  ...  or  as  soon  as  God's  pence  has  been 
given,  or  as  soon  as  earnest  money  has  been  given;  for  each  one  of  these 
three  things  is  equivalent  to  a  confirmation  of  the  bargain."  Franken,  p.  53. 
If  the  accord  of  the  parties  is  sufficient  to  make  the  bargain,  what  is  the 
use  of  mentioning  the  earnest  money  and  God's  pence?  As  was  perfectly 
logical,  these  early  proceedings  for  the  formation  of  contracts  disappeared. 
Beaumanoir  should  have  said,  like  the  "L.  de  Jostice"  or  "Petrus":  "earnest 
money  is  useless,  although  in  practice  it  is  customary  to  give  it."  In  order  to 
make  his  phrase  intelligible  one  must  translate  "creanter"  (to  give  one's 
consent)  by  to  give  the  blow  with  the  palm  of  the  hand,  or  to  give  one's  word. 
Cf.  ed.  Salmon,  see  "Gloss."  Elsewhere  Beaumanoir  speaks  of  the  blow 
with  the  palm  of  the  hand  as  being  current  usage;  he  also  mentions  faith- 
pledging.  It  is  true  that  in  c.  34,  which  relates  to  agreements,  he  is  especially 
concerned  with  unlawful  agreements,  which  would  lead  one  to  believe  that 
the  question  of  form  had  lost  some  of  its  importance.  The  jurisconsults  of 
the  fourteenth  century  speak  of  obligations  entered  into  verbally,  or  of  the 
stipulation,  as  though  the  Roman  law  were  still  in  force:  "Gr.  Cout.,"  p.  201; 
Boutaric,  1,  42.  —  Cf.  "Sachsensp.,"  I,  7;  "Schwabensp.,"  11;  "Cons,  de 
la  Mer,'^  247;  "Stadtr.  de  Fribourg  en  B."  of  1520  (drawTi  up  by  Zasius),  39, 
and  on  that,  Heusler,  II,  227,  249.  On  the  "L.  de  Jost.,"  post,  "Proof"; 
Beaumanoir,  35,  19;  Desmares,  154,  "Jostice,"  p.  8:  "Let  him  who  wishes 
to  give  the  blow  with  the  palm  of  the  hand  do  so." 

503 


§  376]  OBLIGATIONS  [Chap.  Ill 

they  are  in  advance  of  their  time.  ^Moreover,  the  maxim,  "  Agree- 
ments overcome  the  law,"  was  in  old  times  only  true  in  so  far  as 
the  agreement  was  clothed  with  the  required  forms;  this  meant 
that  individuals  could  make  agreements  in  derogation  of  laws 
which  were  not  of  a  public  nature;  ^  thus,  to  take  the  special  case 
with  which  the  jurisconsults  that  we  have  just  cited  were  concerned, 
a  person  can  dispose  of  his  possessions  "inter  vivos,"  although 
the  Customs  confer  them  upon  his  relatives;  one  would  be  wrong 
in  concluding  from  this  that  the  disposal  would  have  been  effica- 
cious even  if  it  had  consisted  in  a  declaration  of  will  without  any 
forms.  Thus  it  is  probable  that  in  the  thirteenth  century  the  for- 
mulee  which  are  cited  above  are  not  an  accurate  expression  of  the 
Customary  legislation.^  The  new  law  is  in  process  of  formation. 
To  make  up  for  this,  Loysel,  357,  presents  it  to  us  under  the  form 
of  a  rule  which  was  already  an  old  one  in  his  time,^  "Bulls  are 
bound  by  their  horns  and  men  by  their  words,"*  and  a  simple 
promise  or  agreement  is  worth  just  as  much  as  the  stipulations  of 
the  Roman  law."  From  this  time  on  there  was  no  hesitation 
about  making  this  rule  an  article  of  faith,  a  principle  of  natural 
law.^ 

IModern  law,  by  taking  this  as  the  basis  of  its  theory  of 
contracts,  made  their  formation  easier;  and,  by  way  of  set-off 
for  this,  it  had  to  show  itself  more  strict  in  matters  which  con- 

*  Not  because  all  agreements  must  be  kept,  but  because  laws  of  a  private 
nature  are  only  the  probable  expression  of  the  will  of  individuals. 

2  P.  de  Fontaines,  after  having  said,  "One  should  fulfill  one's  agreements 
absolutely,"  15,  1,  with  Roman  texts  to  support  him,  declares  a  little  further 
on,  15,  13:  "  He  has  no  very  good  claim  whose  claim  is  based  upon  an  agree- 
ment. .  .  ."  On  his  part,  Glanville,  10,  14,  makes  of  sale  a  real  contract,  or 
one  based  upon  earnest  money,  while  at  the  same  time  setting  forth  the  prin- 
ciple, "Conventio  legem  vincit";  a  little  further  on,  12,  12,  he  states  the  prac- 
tice to  be  as  follows:  "He  who  has  neither  gage  nor  pledge,  but  'sola  fides,' 
obtains  nothing  at  the  court  of  the  king." 

^  Dwnoulin,  on  "Cod.  Just.,"  2,  3:  every  legal  agreement  "  pro  stipulatione 
habetur";  an  action  springs  out  of  it;  the  c.  1,  Dig.  X,  "depactis"  is  applied 
"in  utroque  foi'o  seculari  et  ecclesiastico "  (motives  drawn  from  "naturalis 
sequitas"):  Bucherellus,  "Inst.,"  3,  16;  Duaren,  "Coram."  on  the  title  "de 
Verb.  Oblig.  epist.  ad  Lectorem":  "hodie  nullus  contractus  formula  absque 
stipulatione  concipitur"  (allusion  to  the  notarial  deeds  in  which  it  was  cus- 
tomary to  say  that  there  had  been  a  stipulation,  or  at  least  to  make  use  of 
the  terms:  to  promise,  to  stipulate):  Argou,  I,  2,  c.  34.  —  Pasquier,  "Inst.," 
p.  596;  Domat,  1,  1,  2,  7;  Charorulas,  "Pand.,"  c.  24,  p.  279.  —  In  the  end  the 
agreement  which  did  not  set  forth  the  consideration  for  the  obligation  was 
called  "paction  nue. "  —  Cf.  Goldschmidt,  "Handelsr.,"  3d  ed.,  I,  303. 

*  Loysel  did  not  understand  this  old  proverb  where  allusion  is  made  to 
the  formal  character  of  the  old  procedure.  —  "One  is  bound  by  one's  words; 
once  they  have  been  spoken,  it  is  no  longer  possible  to  withdraw  them." 

^  Grotius,  "De  J.  Belli,"  3,  2,  11,  and  his  school.  Precedents:  cf.  Romanists 
{Karsten,  p.  87  et  seq.)  and  Theologians.     Cf.  "Transfer  of  Ownersliip." 

504 


Topic  4]  CONTRACTS.     FEUDAL  PERIOD  [§  377 

cerned  the  proof  of  their  existence;  ^  this  is  shown,  for  exam- 
ple, in  the  practical  importance  attributed  to  the  drawing  up  of 
writings.  In  this  sense  the  superiority  of  the  system  of  freedom 
over  the  system  of  formalism  is  less  than  it  would  seem  at  first 
blush.  But,  to  make  up  for  this,  it  is  possible  for  a  contract  to 
be  formed  between  people  who  are  not  in  each  other's  presence;^ 
it  is  concluded  by  means  of  representatives;  ^  the  personal  pres- 
ence of  the  parties  may  be  required  for  the  carrying  out  of  certain 
solemnities,  but  there  is  no  reason  to  demand  it  for  the  mere  expres- 
sion of  the  will.^  Looking  at  it  from  another  aspect,  just  as  soon 
as  importance  was  given  to  the  will  of  the  parties,  the  question  of 
intention  preceded  everything  else;  contracts  had  to  be  interpreted 
in  equity,  without  taking  account  of  the  words  which  were  actu- 
ally made  use  of.  "De  sequitate  canonica,"  says  Baldus,  "omnes 
contractus  mundi  sunt  boni  fidei."  "Every  act  is  in  good  faith," 
also  declares  Loysel,  670.^  The  object  and  the  consideration  of 
the  obligation  thenceforth  determined  its  validity,  and  all  the 
more  importance  was  attached  thereto  as  there  was  no  need  to  be 
concerned  with  the  form  of  the  contract. 

§  377.  Contracts  in  English  Law.  None  were  at  first  recognized 
excepting  contracts  "re"  or  "litteris."  ^    An  original  development 

^  The  question  of  the  Proof  of  Contracts  is  of  very  great  importance.  The  very 
old  Customary  law  is  not  very  far  removed  in  this  respect  from  the  practices 
of  the  barbarian  period.  If  we  are  to  beheve  the  "L.  de  Jostice,"  pp.  98,  100 
et  seq.,  126,  163  et  seq.  (cf.  Esmein,  p.  47),  sometimes  the  defendant  can  defeat 
the  claim  by  his  oath  (simple  proof,  opposition  in  the  "Gr.  Cout.  de  Norm.," 
85),  sometimes  he  has  no  other  recourse  excepting  to  "offer  opposition  by 
pledges  of  battle"  (duel).  He  is  allowed  to  defend  himself  by  means  of  the 
oath  when  the  contract  has  not  been  executed,  —  at  least  not  entirely.  Cf. 
Stobbe,  "Vertragsr.,"  p.  70  ("Sachsensp.,"  I,  70,  2;  I,  6,  5;  II,  10,  2);  "Ass. 
de  Jerus.,"  "C.  des  B.,"  105,  118  (apparent  covenant).  Beaumanoir,  63,  11, 
and  P.  de  Fontaines  do  not  make  any  distinction  and  always  compel  the 
defendant  to  rebut  the  testimony  of  the  witnesses  by  means  of  the  duel: 
J.  d'Ibelin,  81,  117;  "Et.  de  St.  Louis,"  I,  118;  "Jostice,"  3,  4,  1;  4,  4,  1. 
Moreover,  in  the  old  times  only  the  testimony  of  persons  called  in  especially 
by  the  parties  in  order  to  take  part  in  the  act  was  admitted;  Beaumnnoir, 
39,  57  (now  it  is  quite  otherwise) :  ./.  d'Ibelin,  79;  "Jostice,"  pp.  156,  163,  171; 
"Summa  Norm.,"  61;  Brunner,  II,  392.  When  proof  by  witnesses  was  ad- 
mitted without  any  of  these  restrictions  it  gave  rise  to  such  abuses  that  they 
found  themselves  obliged  to  Hmit  its  application:  "Ord."  of  Moulins,  1566, 
Art.  54,  and  the  maxim,  "Writings  are  preferred  to  witnesses." 

^  Valery,  "  Les  Contrats  par  Correspondance  dans  le  Pass6 "  (" R-  G6n.  Dr.," 
1894,  3). 

3  Post,  "Order." 

4  "L.  Rom.  Cur.,"  on  Paul,  5,  2,  2;  "Capit.,"  817;  "L.  Long.  Loth.,"  14; 
Heusler,  I,  200  et  seq.,  214;  Brunner,  "Urk.,"  p.  522. 

6  "Const.  Pis.,"  n;Balde,  on  the  c.  9,  "De  Plus  Pet.";  Beaumanoir,  35,  12; 
P.  de  Fontaines,  26. 

«  As  to  the  deed  or  specialty,  cf.  Pollock  and  Maitland,  II,  215,  etc. :  actions 
of  covenant  and  of  account. 

505 


§  377]  OBLIGATIONS  [Chap.  Ill 

which  took  place  from  the  fourteenth  to  the  fifteenth  centuries 
resulted  in  rules  similar  to  those  which  were  admitted  upon  the 
Continent.  The  action  of  debt,  given  on  a  contract  "re,"  was 
originally  an  action  for  restitution,  a  reclaiming  (for  example,  in 
the  case  of  lending)  against  the  man  who  withholds  the  property 
of  another.^  By  a  natural  enough  extension,  it  also  served  for  the 
demand  of  payment  of  the  price  of  a  thing  sold  or  the  arrears  of  a 
rent.  It  assumed  two  things:  1st,  that  the  plaintiff  claimed  a 
sum  of  money;  2d,  that  he  had  performed  something  for  the  benefit 
of  the  other  party.  In  this  there  was  seen  a  "legitima  causa  de- 
bendi,"  a  "quid  pro  quo,"  or  a  "valuable  consideration,"  accord- 
ing to  the  terms  sanctioned  afterwards.  Whence  came  such  a 
requirement?  Originally  from  the  well-established  repugnance  of 
the  ancient  law  to  the  admission  of  gratuitous  contracts;  ^  fol- 
lowing that,  from  the  Roman  theories  upon  the  "causa,"  and  upon 
contracts  not  specified  by  the  law,  —  theories  which  were  quite 
well  adapted  to  the  action  of  debt.^  From  this  action  the  theory 
of  the  consideration  was  communicated  to  the  action  on  the  case 
and  the  action  of  "assumpsit."  Against  the  man  who  caused  a 
material  injury  to  a  person  or  a  thing  there  lay  a  delictual  action  of 
trespass  ("de  transgressione")."*  In  1285  this  action  was  applied 
to  cases  where  there  had  been  no  direct  injury  {cf.  action  "  in  fac- 
tum legis  Aquilise")  by  terming  it  an  action  "  on  the  case."  In  the 
fourteenth  century  the  action  on  the  case  serves  in  the  case  of  de- 
fective performance  (misfeasance)  of  a  "nudum  pactum"  (responsi- 
bility of  a  boatman  who  overloads  his  boat  and  thus  causes  the  loss 
of  the  cargo;  he  is  responsible,  not  by  reason  of  the  contract,  but 
by  reason  of  the  offense) ;  in  the  fifteenth  century  it  serves  in  the  case 
of  non-performance  (non-feasance)  (under  Henry  VI,  1422-61, 
responsibility  of  the  carpenter  who  does  not  finish  the  roof  of  a 
house;  there  is  no  distinction  drawn  between  the  blacksmith  w^ho 
does  not  shoe  a  horse  after  having  promised  to  do  so  and  the 
blacksmith  who  shoes  the  horse  badly;  in  both  cases  the  horse 
goes  lame).  The  action  is  then  called  an  action  of  "assumpsit"  by 
allusion  to  the  responsibility  which  a  man  assumes.  It  seems  to 
us  that  it  would  have  been  more  simple  to  declare  every  agree- 

1  Pollock  and  Maitland,  II,  172,  203. 

*  C/.  The  Lombard  "  Launegild " :  Heusler,  I,  81;  Pollock  and  Maitland,  II, 
211. 

2  "Summa  Norm.,"  90  (ed.  Tardif),  see  "do  ut  des,  ut  facias,"  etc.  Cf. 
Van  den  Berg,  Galteschi  translation,  "Dei  Contratti  do  ut  des  Sec.  il  Dir. 
Musulm.,"  1877. 

*  Cf.  Pollock  and  Maitland,  II,  523. 

506 


Topic  4]  CONTRACTS.     FEUDAL  PERIOD  [§  378' 

ment  binding  excepting  only  those  which  were  not  based  on  any 
"  cause  " ;  this  is  the  French  system.  The  EngHsh  practice  adopted 
the  very  opposite  of  this  rule;  it  drew  its  inspiration  more  from 
the  old  ideas  and  bears  witness  to  a  spirit  which  is  more  restric- 
tive in  appearance,  although  in  fact  its  results  are  about  the 
same. 

§  378.  Obligations  by  Means  of  Writing  and  Written  Proof.  — 
The  custom  of  drawing  up  a  writing  in  order  to  establish  agree- 
ments becomes  more  and  more  widespread  in  the  Middle  Ages. 
By  this  means  there  is  attained  a  method  of  proof  which  under 
certain  conditions  is  the  most  positive  of  all.^  Should  we  not  go 
further  and  say  that  writing  constitutes  a  special  way  of  binding 
oneself?  Although  not  very  precise  on  this  point,  the  texts  of  the 
thirteenth  century  show  that  at  that  time  people  were  not  very 
far  from  this  conception.^  Even  the  expression  which  Beau- 
manoir,  c.  35,  makes  use  of,  "To  bind  oneself  by  writing,"  leads 
one  to  believe  this.^  In  general,  in  order  to  make  a  contract  in 
writing,  one  binds  oneself  before  the  judge,  and  a  deed  or  a  writ- 
ing of  the  contract  is  drawn  up  as  though  it  were  a  matter  of 
drawing  up  a  judgment  (c/.  Judgment  of  settlement).'*    It  is  only 

'  The  restoration  of  the  title  in  case  of  payment  (Frankish  period)  is  the 
counterpart  of  the  "traditio  carta}";  it  is  torn  up  or  it  is  annulled  by  a  mention 
of  the  fact  in  writing  ("cassatura").  If  the  restoration  is  impossible  (and  it  is 
not  agreed  that  the  payment  shall  only  be  made  upon  restoration  of  the  title, 
Brunner,  loc.  cit.)  one  delivers  an  acquittal  ("epistola  evacuatoria");  the  cred- 
itor holds  his  debtor  acquitted  ("quietus")  sometimes  even  without  payment: 
Marculfe,  2, 35;  "  Form.  Andec,"  18;  Beaumanoir,  34, 21 ;  39,  60;  P.  de  Fontaines, 
15,  22.  Cf.  Dig.,  "depactis,"  1;  Huber,  IV,  837;  Glasson,  VII,  691  et  seq.; 
"N.  R.  H.,"  1886,  20,  178. 

2  Cf.,  however,  as  to  gifts,  Esmein,  pp.  31,  42,  44. 

^  Beaumanoir,  68,  7  (or  by  the  pledge);  Boutaric,  I,  25,  "Const,  du  Chdt.," 
79:  contract  in  writing;  Britton,  I,  29;  Glanville,  10,  14  (written  or  delivered); 
"Ass.  de  Jerus.,"  "C.  des  Bour.,"  216;  Esmein,  p.  43.  Conversely  {Tardif, 
Schwalbach),  one  may  bring  to  notice  passages  from  Beaumanoir,  31,  5:  "In 
another  chapter  we  will  speak  of  other  methods  of  proof";  35,  18:  "Official 
writings  are  only  equivalent  to  one  witness";  39,  3.  Cf.  the  English  deed  or 
writing  sealed  and  delivered  by  the  debtor  to  the  creditor,  which  is  not  only 
a  probative  title,  but  a  method  of  contracting  like  the  Frankish  "carta": 
Pollock  and  Maitland,  II,  217.  The  King's  Court  left  to  one  side  the  old  forms 
("hand-sale,"  etc.);  it  was  necessary  in  every  covenant  to  produce  a  specialty 
or  deed  ("factum");  in  the  thirteenth  century  every  free  man  has  a  seal  which 
he  places  upon  the  parchment  containing  the  agreement. 

^  The  custom  of  contracting  at  law  goes  back  to  the  barbarian  period ;  but 
only  the  tribunal  of  the  king  could  give  a  deed  of  contract  ("placitum")  in 
such  a  way  as  to  furnish  the  interested  parties  with  an  incontestable  proof: 
Brunner,  "Gerichtszeugniss,"  154;  R.  Huhner,  "Gerichtsurkunden  d.  Fn'ink. 
Zeit"("Z.  S.  S.,"  25).  Cf.  Periile,  IV,  469.  During  the  feudal  period  contracts 
drawn  .up  in  court  were  first  of  all  established  bv  records,  and  then  bv  writings: 
Beaumanoir,  35,  23;  39,  6;  63,  11;  J.  d'lhclin,  117,  121;  "Sachsensp.,"  I,  18, 
2;  70;  II,  10;  "Roisin,"  p.  Q5et  seq.     In  England  they  are  all  the  more  readily 

507 


§  378]  OBLIGATIONS  [Chap.  Ill 

as  an  exception  that  they  proceed  in  another  way.  According  to 
Beaumanoir,  there  should  be  three  kinds  of  writings  which  bind:  ^ 
those  which  are  sealed  with  the  seal  of  the  lord  of  the  locality,  or 
of  the  king  (or  of  their  representatives,  for  example,  the  royal 
bailiffs,  "letters  of  authority");  ^  those  which  are  sealed  with  the 
seal  of  the  council  of  the  locality;^  and,  lastly,  those  which  are 
sealed  with  the  private  seal  of  a  simple  gentleman,  who  has  no 
right  of  administering  justice,  on  the  theory  that  they  proved  an 

used  because  there  are  no  authenticated  notarial  deeds:  Blackstone,  II,  21; 
Pollock  and  Maitland,  II,  202  (recognizance),  205.  Thus  everywhere  is  devel- 
oped this  application  of  non-contentious  jurisdiction. 

1  Beaumanoir,  35,  18;  34, 59.  Models:  see  also  "Stilus  Pari.,"  "Gr.  Cout.," 
Boutaric,  I,  26. 

2  According  to  Beaumanoir,  35,  23  (c/.  1,  44,  "Ord."  of  Philip  III),  those 
who  wish  to  obtain  a  Letter  of  Authorization,  because  they  have  no  seal  or 
because  this  means  is  more  sure,  should  come  before  the  bailiff,  making  a  record 
of  the  bargain,  and  then  require  that  the  letters  be  delivered  to  them  "in  the 
form  which  follows:  To  all  those  who  shall  see  or  have  these  present  letters, 
Phelippes  de  Beaumanoir,  Bailiff  of  Clermont,  gives  greetings.  Know  ye  all 
that  in  our  presence  P.  and  J.  recognized  at  law  that  they  of  their  own  free 
will  and  for  their  own  benefit  have  made  such  and  such  an  exchange."  Then 
follow  the  details  of  the  agreement,  and  the  obligation  of  keeping  it  and  war- 
ranting (for  this  and  what  follows  we  are  referred  to  the  formula  of  sale,  35, 
20):  "And  this  bargain  above  mentioned  have  I  agreed  to  warrant  for  all 
time  for  the  said  J.  and  his  heirs  again.st  everyone";  the  seller  shall  pay  all  the 
expenses  and  damages  occasioned  by  his  default  in  warranty  {cf.  "Ord."  Janu- 
ary, 1324)  and  shall  furnish  this  warranty;  should  he  so  wish,  he  may  bind 
himself  even  more  strictly  (damages  may  be  fixed  upon  the  oath  of  the  creditor, 
35,  19 ;  P.  de  Fontaines,  15, 27) :  "And  to  bind  myself  firmly  I  have  bound  myself 
and  my  heirs  and  all  I  have  in  the  present  and  in  the  future,  movable  and  in- 
heritances, to  be  adjudged  by  whatever  justice  he  shall  please  to  the  said  J. 
or  his  heirs,  or  to  him  who  shall  bear  these  letters  .  .  .  and  to  take,  to  sell, 
and  to  spend,  without  any  delay,  until  th*e  costs  and  the  damages  shall  have 
been  paid  and  I  shall  have  given  a  lawful  warranty."  Then,  finally,  come  the 
renunciations  {cf.  35,  29)  of  every  right  and  every  law,  canon  or  customary; 
of  the  privilege  of  the  cross,  taken  or  to  be  taken  (P.  de  Fontaines,  17,  7,  14); 
indulgences  of  the  pope  or  the  king,  customary  delays,  exception  "non  numer- 
atse  pecunise,"  a  "lesion  "  of  more  than  half;  all  exceptions  or  defenses  and  the 
rule,  "  renunciations  by  way  of  gift  are  worthless  "  {Meynial,  "N.R.  H.,"  1900- 
1901);  "and  in  order  that  this  maybe  a  firm  and  stable  deed  I  have  had  placed 
upon  these  present  letters  the  seal  of  the  bailiff  of  Clermont  [35,  24].  This 
was  done  in  such  and  such  an  incarnation  [reign]  and  in  such  and  such  a 
month."  For  the  letters  of  a  gentleman  upon  his  seal,  Beaumanoir,  35,  20, 
maintains  that  they  were  given  to  the  creditor:  Beaumanoir,  I,  41;  35,  6,  23; 
Boutaric,  I,  106,  107.  The  royal  seal  is  recognized  throughout  the  kingdom, 
whereas  the  seal  of  the  lord  is  only  known  in  his  domain.  —  Simple  contract 
creditors  went  before  the  aldermen;  "Artois,"  49,  12,  ed.  T. 

3  According  to  Beatimanoir,  35,  18  (c/.  39,  61;  Boutaric,  I,  107),  they  were 
only  equivalent  to  a  single  witness  when  they  were  produced  in  the  lay  court 
(excepting  in  spiritual  matters,  —  for  example,  a  marriage  or  a  will).  It  was 
the  same  with  letters  of  the  lay  court  when  produced  in  a  Court  of  the 
Church.  But  there  was  an  exception  made  for  the  letter  of  the  king  or  the 
apostolic  letter  (of  the  pope) ;  these  letters  were  everywhere  equal  to  the  full- 
est testimony.  Little  by  little  the  number  of  deeds  that  could  be  authen- 
ticated by  the  ecclesiastical  judges  was  restricted.  —  P.  Foumier,  "Offic," 
pp.  41,  195. 

508 


Topic  4]  CONTRACTS.     FEUDAL  PERIOD  [§'378 

engagement  entered  into  by  him.^  The  seal  conferred  upon  the 
deed  an  authenticity  and  a  binding  force.  jMoreover,  its  genuine- 
ness and  physical  wholeness  signified  a  good  deal;  if  only  half 
of  the  seal  were  left,  this  was  sufficient,  according  to  Beaumanoir, 
to  validate  the  deed.^  These  writings  were  nothing  more  than 
mere  means  of  proof  ^  when  the  rule  that  consent  was  sufficient 
in  order  to  bind  was  admitted.^ 

Nevertheless,  public  writings  were  contrasted,  as  had  long 
been  done,  with  private  writings.  The  former,  coming  from 
public  officers  —  whence  their  name  —  w^ere  principally  the  work 
of  notaries,  that  is  to  say,  of  the  representatives  of  the  king 
and  the  lords.  The  affixing  of  the  seal  of  jurisdiction  ^  gave  to 
documents  two  privileges,  —  authenticity  and  executory  force 
(without  taking  into  account  mortgages,  which  will  be  discussed 
further  on).    Thus  they  obtained  full  credence  at  law,^  and  they 

^  But  not  to  his  own  profit:  G.  Durand,  "Spec,"  2,  22,  298;  P.  de  Fontaines, 
15,  22;  Beaumanoir,  35, 10,  18;  39,  73;  Boutaric,  I,  106,  107;  "A.  C,  Bourges," 
27  (c/.  seal  of  the  king);  Loysel,  781  (bibl.),  856.  Commoners  had  no  authentic 
seal,  which  placed  them  under  the  necessity  of  applying  to  the  lord  and  the 
bailiff,  or  to  an  officer;  the  gentleman  also  had  recourse  to  them  because  of 
the  advantages  which  he  found  in  so  doing.  In  Normandy,  where  serfdom 
disappeared  at  a  very  early  time,  the  commoners  often  had  private  seals,  just 
as  the  nobles  did.  From  thence  arose,  no  doubt,  the  English  practice  of  deeds. 
—  Cf.  as  to  the  effect  of  the  deed  under  seal,  Schulze,  "Urkundenbew.,"  1894; 
Esmein,  p.  126;  Huvelin,  "Th^se"  ("Contrats  en  Foire"). 

2  Beaumanoir,  35,  11.  Cf.  Joinville,  §  66  (only  the  bottom  of  the  seal  is 
left;  St.  Louis  carried  out  the  obhgation  contrary  to  the  advice  of  his  Council); 
Loysel,  loo.  cit.;  "Gr.  Cout.,"  p.  380. 

^  As  to  proofs  in  general,  cf.  bibl.  in  Camus  and  Dupin,  nos.  1726  et  seq.; 
and  as  to  practice,  cf.  "Treatises  on  Procedure,"  and  see  also  Camus  and  Dupin 
{Pothier,  Pigeau,  etc.);  as  to  the  profession  of  notary  (Ferri'ere),  " R6pertoires " 
by  Ferriere,  Guyot,  etc.  Ordinances  in  the  Conference  of  Gudnois,  1,  4; 
Isambert,  see  "Temoins,"  "Enquete,"  etc.;  Bonnier,  "Tr.  des  Preuves,"  4th 
ed.,  1874;  "Tract,  univ.  J.,"  IV.  —  As  to  the  old  texts,  cf.  Beaumanoir,  c.  35, 
39;  Boutaric,  I,  105  et  seq.;  Masuer,  16  et  seq.;  "  Artois,"  ed.  Tardif,  49.  —  Pol- 
lock and  Maitland,  II,  595. 

^  As  one  asks  oneself  if  it  was  not  already  recognized  in  the  time  of  Beau- 
manoir, it  is  easy  to  understand  that  one  hesitates  as  to  the  binding  or  merely 
probative  character  of  writings.    Confusion  of  the  "carta"  with  the  "notitia." 

^  Loyseau,  "Offices,"  2,  5,  60.  Cf.  as  to  the  affixing  of  the  seal,  p.  905,  and 
declaration  of  September  27,  1697,  uniting  the  keepers  of  the  petty  seals  to 
the  body  of  notaries:  Ferrihre,  see  "Sceau  de  Justice";  Masuer,  18,  6  (bibl.). 
As  to  protocols,  minutes  and  copies,  see  Masuer,  18,  18;  37;  53,  etc.;  Rehuffe, 
"De  Litt.  Obi." 

^  The  Probatory  Force  of  the  deed  under  seal  varies  according  to  the  seal 
with  which  it  is  furnished;  thus  the  seigniorial  seal  is  not  efficacious  outside 
of  the  lord's  domain,  and  the  seal  of  the  ecclesiastical  judge  outside  of  the 
diocese  {Beaumanoir,  39,  71-76;  35,  18).  On  principle,  sealed  writings  are  as 
good  as  full  proof.  But  they  may  be  forged,  —  that  is  to  say,  it  may  be  al- 
leged that  they  have  been  forged  or  falsified  (broken  seal,  scratches,  etc.); 
Beaumanoir,  35,  9  et  seq.;  or  their  contents  may  be  attacked  by  relying  upon 
an  alibi:  ibid.,  35,  25;  if  they  contain  the  names  of  persons  called  upon  to  serve 
as  witnesses,  and  if  these  persons  declare  that  they  have  taken  no  part  in  the 

509 


§  378]  OBLIGATIONS  [Chap.  Ill 

gave  creditors  a  sure  and  speedy  means  of  execution.  This 
status  is  due  to  the  fact  that,  originally,  notarial  deeds  were 
judical  records,  arising  from  the  parties'  voluntary  submission 
of  some  transaction;  they  were  at  first  drawn  up  in  the  pres- 
ence of  the  judge,  and  later  out  of  his  presence.  "But,"  says 
Loysel,  "it  is  always  the  judge  who  speaks  through  them." 
They  present  the  great  practical  advantage  of  cutting  short  many 
a  quibble.  They  have  no  serious  inconveniences,  when  the 
character  and  skill  of  the  notarial  profession  is  assured.  Some 
countries,  especially  England,  have,  however,  refused  to  admit 
them.  Every  deed  must  there  be  proved  in  court,  and  the 
parties  ordinarily  betake  themselves  for  the  drawing  up  of 
deeds  to  "attorneys"  who  are  at  the  same  time  solicitors;  this  is 
not  without  its  dangers,  because  the  duty  of  the  scribe  is  to  pre- 
vent suits  and  the  interest  of  the  solicitor  is  to  foster  as  many  as 
he  can.  In  the  German  countries  the  tendency  seems  to  be  to 
include  the  functions  of  a  notary  among  the  attributes  pf  a 
judge,  or,  at  least,  to  give  to  the  judge  the  most  important  of  the 
notary's  functions.^ 

Private  writings  did  not  acquire  any  probative  force  ex- 
cepting by  virtue  of  an  acknowledgment  or  confession  in  court, 
on  the  part  of  the  one  who  had  signed  them ;  ^  or  else  as  a 
consequence  of  the  procedure  for  the  verification  of  the  writing. 

deed  or  give  testimony  contrary  to  that  which  the  deed  contains,  then  the  deed 
is  annulled:  ibid.,  39,  59.  Beaumanoir  tells  us  that  in  order  to  avoid  these 
cases  of  nullity  it  has  ceased  to  be  customary  to  have  the  names  of  the  witnesses 
entered  in  the  deed.  These  witnesses  or  "warrantors"  ("Jostice,"  p.  156; 
"A.  C,  Bayonne,"  85,  5;  "A.  C,  Anjou,"  I,  56),  however,  are  to  be  found  once 
more  in  our  modern  witnesses  to  deeds.  Cf.  Huher,  IV,  837,  17;  Glasson,  VII, 
592.  Obviously,  also,  when  the  deed  establishes  a  debt,  one  may  allege 
that  there  has  been  payment  (custom  of  restoring  it  and  of  tearing  it  up  in  a 
case  of  this  sort:  Beaumanoir,  34,  21;  35,  10;  39,  3,  22;  Masuer,  18,  59;  "Tou- 
louse," "de  fide  instr.  de  solut.").  Under  these  conditions  the  public  deed  is 
given  credence,  but  only  until  the  contrary  is  proved,  and  not  merely  until  the 
allegation  of  forgery  is  made:  Masuer,  18,  53.  Imbert  only  speaks  of  the  alle- 
gation of  forgery  as  against  depositions  of  ■witnesses.  The  "Ord."  of  Charles 
VII,  of  1453,  Art.  17,  had  forbidden  the  attacking  of  a  public  deed  under  pre- 
text of  forgery  unless  a  criminal  accusation  of  forgery  were  brought  in  one 
special  case;  that  is,  when  it  was  a  matter  of  a  judgment  having  been  altered 
by  the  judges  after  its  having  been  pronounced  (Isambert,  IX,  211).  Fontanon, 
on  Masuer,  ed.  1600,  p.  344,  seems  to  see  in  this  a  general  decision.  It  is  no 
doubt  because  the  practice  of  his  time  had  generalized  it:  Fleury,  "  Inst,  au  Dr. 
Fr.,"  II,  298;  "Ord.  Crim."  of  1670,  IX;  "Ord."  of  January,  1383;  February, 
1737;  Glasson,  "Precis  de  Proc^d.  Civ.,"  I,  542. 

1  Bonnier,  "Preuves,"  II,  18.  —  Heraud,  "Formality  du  Double,"  1901. 

2  Deeds  under  private  seal:  Boutaric,  I,  106;  "A.  C,  Picardie,"  p.  115,  ed. 
Marnier.  Deeds  written  in  household  books  or  merchants'  account  books: 
Masuer.  18,  34;  Ruber,  IV,  838,  18;  Posse,  "Privaturk.,"  1887;  Bresslau, 
"Forsch.  f.  D.  G.,"  26;  Schupfer,  "R.  Ital.  So.  Giur.,"  1889,  345. 

nlO 


Topic  4]  CONTRACTS.      FEUDAL   PERIOD  [§  378 

The  deed  under  private  seal  did  not  prove  its  own  date,  as  far  as 
third  parties  were  concerned,  unless  bearing  official  stamp  (when 
stamping  was  required.  Edict  of  1580,  repealed  in  1588,  Edict 
of  1693).  The  privilege  of  gentlemen  to  possess  an  authenticative 
seal  had  no  more  reason  for  existing  when  feudalism  declined;  it 
disappeared,  and  the  jurisconsults  of  the  sixteenth  century,  such 
as  Dumoulin,  did  not  hesitate  to  affirm  that  these  seals  had  no 
more  value  than  a  private  signature.^ 

If  private  deeds  had  only  a  limited  efficaciousness,  oral  testi- 
mony had  still  less.  Witnesses  were  distrusted  for  many  reasons. 
A  person  who  has  not  taken  part  in  an  examination  will  never 
be  able  to  realize  the  difficulty  there  is  in  extracting  the  truth 
from  the  confused  and  inaccurate  depositions  of  the  best  inten- 
tioned;  in  other  depositions,  money  or  threats  have  induced 
lies;^  death  removes  some,  and  age  or  illness^  causes  others 
to  lose  their  memory.^  Preconstituted  proof,  as  embodied 
in  written  deeds,  is  manifestly  superior  provided  they  are 
removed  to  a  great  extent  from  the  risk  of  loss  and  alteration.^ 
The  Ordinance  of  Moulins,  February,  1566,  Art.  54,  wishing,  it 
says,  to  avoid  the  "complicating  of  lawsuits,"  decreed  that  a 
contract  must  be  drawn  up  for  everything  which  exceeded  100 
livres  in  value.®    Thenceforth  the}'  no  longer  said,  "  Witnesses  are 

1  Dumoulin,  on  "Paris,"  1,  8,  12;  "Ord."  of  Moulins,  Art.  54;  Danty, 
"Preuves,"  2d  part,  no.  2.  The  evolution  in  English  law  has  taken  place  in 
the  opposite  direction:  the  writing  sealed  with  the  seal  of  gentlemen  has  been 
preserved  in  the  deed,  a  sort  of  document  which  in  England  takes  the  place 
of  a  notarial  deed.  The  French  law  has  likened  gentlemen  to  commoners  by 
taking  away  from  them  the  right  to  have  a  seal;  the  English  law  has  likened 
commoners  to  gentlemen  by  giving  them  this  right. 

2  Even  this  fact  was  not  necessary  in  order  to  justify  the  rule  drawn  from 
the  Scriptures:  "Testis  unus,  testis  nuUus":  "Deuter.,"  xix,  2,  15;  "Matt.," 
xviii,  16;  Dig.  X,  .3,  26,  10;  G.  Durand,  "Spec,  de  Teste,"  §  11;  Beaumanoir, 
49,  5;  "Toulouse,"  "de  test.";  "Montpellier,"  25  et  seq.;  Loysel,  779. 

'  From  thence  arose  examinations  for  perpetuating  proof:  Masuer,  17,  1 
(and  p.  307). 

^  Loysel,  770,  "He  who  shortens  best,  proves  best."  "Schwabensp.,"  36-^. 
These  disadvantages  became  worse  with  the  system  of  legal  proofs  which  pre- 
vailed in  the  old  law,  and  which  has  its  origin  in  the  practice  of  the  barbarian 
period.  For  this  was  substituted  the  system  of  inmost  convictions,  which  one 
already  finds  at  Rome,  and  of  which  there  are  traces  in  the  canon  law: 
P.  Fournier,  "Offic,"  p.  193.  Cf.  Beaumanoir,  39,  19;  Loysel,  867;  Glasson, 
VI,  553. 

*  Loss:  Masuer,  18,  17,  51. 

«  "Ord."  of  MouHns,  Art.  54:  "  Concerning  everything  exceeding  the  value  of 
one  hundred  pounds  contracts  shall  be  drawn  up  before  notaries  .  .  .  without 
receiving  any  proof  by  witnesses  excepting  as  to  the  contents  of  the  contract, 
and  without  receiving  any  proof  as  to  that  which  may  be  alleged  to  have  been 
.  said  or  agreed  upon  before  the  contract,  then  and  afterwards;  by  this  we  do 
not  intend  that  proofs  are  to  be  excluded  which  are  made  by  the  parties 

511 


§  378]  OBLIGATIONS  [Chap.  Ill 

better  than  writing,"    but   instead,   "Writings  are  better  than 
witnesses."  ^ 

under  their  private  seals  and  writings."  "Ord."  of  1667,  20,  2  (deeds  instead  of 
contracts  in  order  to  get  rid  of  difficulties  and  to  generalize  more).  Proof  by 
witnesses  is  thus  found  to  be  excluded  with  a  few  exceptions;  Civil  Code,  1341. 
1  Boutaric,  I,  106  (p.  620):  "Know  that  oral  testimony  has  more  force 
than  writings,  if  the  witnesses  testify  contrary  to  the  writings,  and  the  judge 
ought  to  accept  the  deposition  of  witnesses  who  depose  with  sound  memory, 
and  pass  sentence  according  to  their  deposition  rather  than  according  to  the 
contents  of  the  writings  wliich  do  not  support  them."  The  Commentary 
required  three  or  four  witnesses  in  order  to  overcome  a  public  deed;  Hostien- 
sis  and  the  canonists  are  satisfied  with  two:  Masuer,  18,  13,  53;  Loysel,  774; 
J.  Faure,  I,  15;  "Cod.  Just.,"  "de  fide  instr." 


512 


Topic  5]  NULLITY  OF  CONTRACTS  [§  380 


Topic  5.    Nullity  of  Contracts 


§  379.  The  Nullity  of  a  Contract. 
§  380.  Origin  of  the  Theory  of  Nullity. 
§  381.  Nullity  and  Rescission. 


§  382.  Absolute  Nullity. 
§  383.  Relative  Nullity. 
§  384.  Rescission. 


§  379.  The  Nxillity  of  a  Contract,  in  the  very  old  law,  arises 
chiefly  from  the  failure  to  observe  form;  the  absence  of  funda- 
mental conditions,  such  as  consent,  is  not  so  important  as  in  mod- 
ern law,  because,  ordinarily,  if  the  act  is  regular  as  to  form,  the 
contract  is  otherwise  binding.  But  in  the  later  system  of  contracts 
formed  by  mutual  agreement,  the  question  of  nullity  is  more 
complicated  and  becomes  vital.  P.  de  Fontaines,  c.  15,  and 
Beaumanoir,  c.  34,  having  to  deal  with  agreements,  inquire  first 
of  all  as  to  which  are  the  ones  that  must  be  kept  and  which  the 
ones  that  should  not  be  deemed  valid. 

§  380.  Origin  of  the  Theory  of  Nullity.  —  The  canon  law  bor- 
rowed from  the  Roman  law  its  theory  of  nullities,  and  especially 
the  distinction  between  nullities  "ipso  jure"  and  "exceptionis 
ope"  or  "per  in  integrum  restitutionem."  ^  This  was  applied  in 
the  same  way,  excepting  that  the  absence  of  forms  in  the  stipula- 
tion did  not  prevent  the  contract  from  being  valid.^  In  its  turn, 
the  Customary  law  felt  the  canonic  and  Roman  influence.  From 
the  thirteenth  century  we  find  in  Beaumanoir  a  contrast  between 
contracts  which  are  void  and  those  against  which  one  can  only 
plead  some  "  barre,"  such  as  asking  for  "ratifying  restitution."' 
Voidable  contracts  may  be  validated  by  a  short  prescription ;  *  it 
does  not  seem  to  have  been  the  same  with  regard  to  contracts  which 
were  void.  But,  though  this  difference  can  be  pointed  out,  one 
must  be  careful  not  to  think  that  the  difference  between  nullity 
and  liability  to  be  avoided  was  very  clearly  distinguished  by  our  old 
authors;  their  language  and  their  ideas  are  far  from  being  precise; 
the  word  "  nullity  "  is  the  only  one  which  they  make  use  of  to  des- 

1  Fournier,  "Offic,"  p.  226. 

*  Dig.  X,  1,  41,  8;  3,  17,  3  and  6;  1,  40,  2;  "Dec.  Grat.,"  I,  43,  q.  10,  4; 
G.  Durand,  II,  3. 

»  Beaumanoir,  16,  8;  34,  29;  16,  4,  11;  cf.  Boutaric,  1,  40,  19,  92;  "Olim," 
III,  202  (in  1306);  1180  (in  1317).  —  "Capitul.,^'  VII,  288;  V,  181, 
362. 

*  A  year  and  a  day:  Beaumanoir,  34,  29;  Boutaric,  I,  20:  Masuer,  29,  19; 
"N.  R.  H.,"  1888,  326. 

513 


§  380]  OBLIGATIONS  [Chap.  Ill 

ignate  two  distinct  situations  at  one  and  the  same  time;  ^  at  the 
most,  in  later  times,  absolute  nidlity  is  often  used  in  the  sense  of 
non-existence;   relative  nullity  is  used  for  voidabihty. 

§  381.  Nullity  and  Rescission  or  restitution  in  entirety.  —  In  the 
thirteenth  and  fourteenth  centuries  every  nulUty  is  officially  pro- 
nounced by  the  judge.  Towards  the  fifteenth  century  ^  the  law 
changes;  two  classes  of  contracts  which  may  be  annulled  are  dealt 
with:  (a)  the  nullities  established  by  the  Customs  and  the  Ordi- 
nances are  applied  "de  piano"  by  the  tribunals;^  (b)  royal  letters  of 
rescission  are  necessary  to  plead  the  benefit  of  those  which  arise 
from  the  Roman  law.^  "  Means  of  nullity  have  no  place,"  they 
say;  ^  that  is,  it  is  necessary  to  have  letters  of  rescission  in  order  to 
plead  nullity;  but  this  is  only  true  in  the  case  of  Roman  pleas  of 
nullity.  What  is  the  reason  for  this  innovation?  Almost  all  the 
old  jurisconsults  reply:  It  is  because  the  provisions  of  the  Roman 
law  had  no  self-executory  force  in  France  except  by  permission  of 
the  king.^  In  our  time  other  explanations  of  this  have  been  sug- 
gested. For  some,  letters  of  rescission  would  be  due  to  the  spirit  of 
exaction  which  was  displayed  by  the  old  royalty;  for  others,  this 
would  be  one  of  the  means  made  use  of  to  restrain  the  jurisdiction 
of  the  seigniorial  judges  (cognizance  of  claims  for  rescission  was 
taken  away  from  them).  But  why  should  reform  have  been  lim- 
ited to  the  Roman  nullities  if  it  had  only  a  political  or  fiscal  ob- 
ject? It  is  more  likely  that  one  must  abide  by  the  explanation  of 
our  old  authors,  the  political  or  fiscal  reason  being  added  thereto 

1  Rebuffe,  "Tr.  de  Resc.  Contr.  pr. " :  "  contractus  aut  nullus  est,  aut  tenet, 
sed  tamen  est  annullandus."  In  the  first  case  it  is  required  ''ut  declaretur 
nullus";  in  the  second  case,  that  it  should  be  rescinded:  D'Argentre,  "Cons. 
Brit.,"  in  283,  com.  1,  nos.  7-10;  Dunod  (eighteenth  century),  "Prescr.," 
p.  47  (absolute  nullity  and  relative  nullitv) ;  i?o?i/iier,  on"  Bourg.,"  19, 12.  Cf. 
Pothier,  "Oblig.,"  1,  1,  1,  1,  3;  3,  2  and  3;  "Proc.  Civ.,"  5,  4,  1.  Cf.  Domat, 
1,  1,  5;  4,  6,  2  and  3.  It  is  not  without  difficulty  that  the  classical  doctrine 
has  taken  shape  in  our  time. 

2  Boutaric,  I,  92,  and  the  notes  ofCharondas;  "Ord."  of  1536,  18,  and  1539, 
134;  Du  Cange,  see  "Rescissio":  in  1481,  letters  of  rescission  in  countries 
of  written  law;  they  are  probably  of  a  still  earher  date  in  countries  of 
Customs. 

'  For  examj)le,  a  usurious  contract  (Ordinances),  deeds  of  a  married  woman 
without  authority  (Customs). 

*  For  example,  fraud:  Pollock  and  Maitland,  II,  533:  Writ  of  Deceit 
(under  John). 

5  LoTjsel,  706;  Imbert,  "Inst,  for.,"  1,  3,  3;  "Enchir.,"  see  "Contracts," 
" Nullity ";  see  Ragueau.  WTiich  can  also  be  understood  in  this  way:  that, 
if  there  were  no  texts  on  the  subject,  a  deed  could  not  be  annulled.  —  Cf.  aa 
to  procedure:  Glasson,  " Precis  de  Procedure,"  1, 14.  —  Ceepolla,  "Tr.  Cautel.," 
1732. 

^  Guy  Coquille,  "Instit.,"  p.  7;  on  "Nivernais,"  p.  2;  Imbert,  "Enchirid.," 
see  "Contrats";  Charondas,  "R^ponses,"  III,  102. 

514 


Topic  5]  NULLITY  OF  CONTRACTS  [§  382 

merely  in  order  to  strengthen  it.  At  the  same  time,  the  old  expla- 
nation itself  has  need  of  being  rounded  out.  Taking  it,  in  fact,  as 
it  was  set  forth  by  the  jurisconsults  of  the  Customs,  it  would  have 
been  necessary  to  obtain  letters  for  the  application  of  all  the 
Roman  rules,  a  thing  which  did  not,  as  a  matter  of  fact,  take  place. 
This  was  done  only  in  the  case  of  nullities  which  were  unknown 
to  the  old  Customary  law,  and  were  opposed  to  its  principles, 
and  of  such  an  exceptional  character  that  their  introduction  was 
compelled  to  rest  upon  royal  authority.  The  necessity  for  letters 
of  rescission  was  extended  (evidently  for  fiscal  reasons)  to  countries 
of  written  law.^  In  this  sense  there  was  an  extension ;  in  another, 
a  restriction;  practice  at  first  required  letters  in  case  of  nullity 
"ipso  jure"  as  well  as  in  case  of  nullity  "per  exceptionem"  or  "in 
integrum  restitutionem  " ;  ^  at  the  end  of  the  seventeenth  century  ^ 
and  in  the  eighteenth  century'*  letters  of  rescission  were  no  longer 
required  for  nullities  "ipso  jure."  ^  Their  use  was  abohshed  by 
the  Law  of  September  7,  1790,  Arts.  20-21. 

§  382.  Absolute  Nullity  resulted  from  lack  of  consent,^  lack  of 
an  object  or  a  "cause,"  ^  and  the  unlawful  or  immoral  char- 
acter of  the  object  or  of  the  "cause"  ^  (improper  consider- 
ation). The  "cause"  ^  for  the  old  jurisconsults  corresponds 
to  the  "  quid  pro  quo  "  or  to  the  "  consideration"  of  the  English 
law.    They  took  as  their  point  of  departure  the  Roman  ideas  upon 

1  G.  Pave,  "Dec,"  q.  141,  143.  Cf.  Dupirier,  "CEuvres,"  III,  186;  Mortet, 
p.  115  (cit.).  Cf.  "Advantage  of  Inventory,"  post.  "Exceptions  for  Lorraine 
and  the  Franche-Comte  " :  Argou,  II,  13. 

2  Rebuffe,  "In  Const.  Reg.,"  423;  Charondas,  "Pand.,"  II,  c.  28;  Pasquier, 
"Interpret,  des  Inst.,"  139;  Despeisses,  "CEuvres,"  I,  808;  Mornac,  s.  1,  16, 
"D.,  de  min. ";  c.  3,  C,  2,  22.  For  example,  defect  in  form,  an  unlawful 
object.  In  such  a  case  the  Customary  law  and  the  Ordinances  were  ordinarily 
in  accord  with  the  Roman  law  to  the  effect  that  the  deed  should  be  annulled. 

3  G.  Coquille,  "Inst.,"  p.  7;  Ferriere,  on  "Paris,"  223;  Fleury,  "Inst.,"  II, 
43. 

*  Pothier,  ;'Procdd.,"  727;  Guyot,  "R6p.,"  see  "Nullitd,"  §  7. 

5  In  practice,  in  order  to  avoid  all  difficulties,  they  often  obtained  letters 
in  the  case  of  an  annulment  "ipso  jure":  Argou,  "Inst.,"  II,  480;  Duperier, 
"CEuv.,"  Ill,  401. 

'  "  Jostice,"  II,  16.     As  to  promises  on  behalf  of  another,  Boutaric,  I,  40. 

^  Boutaric,  "Actes  du  Pari.,"  II,  no.  6446  (in  1321). 

^  For  example,  interests,  a  concubine,  etc.:  P.  de  Fontaines,  15;  Beau- 
manoir,  34,  2,  23;  38,  15;  70,  2,  etc.;  Boutaric,  I,  25;  "Jostice,"  pp.  100,  325; 
"Montpellier,"  67  (gambling).  If  one  wishes  to  have  some  conception  of  the 
variations  of  the  law  upon  this  point  one  must  remember  that  life  insurance 
was  prohibited  as  being  immoral  ("Ord."  of  1681);  Portalis  in  his  "Discours 
Prdlminaire  sur  le  Code  Civil"  flays  it:  "This  institution,  which  implies  a 
'Votum  mortis,'  could  only  be  developed,"  says  he,  "among  the  English, 
where  a  vile  spirit  of  commercialism  has  stifled  the  conscience." 

^  Domat,  "Loix  Civ.,"  1st  part,  "t.  des  Conventions";  see  Ferribre,  Guyot, 
Pothier,  " Ohhg."  —  Timbal,  "Th^se,"  1879. 

515 


§  382]  OBLIGATIONS  [Chap.  Ill 

the  "  condictio  sine  causa,"  upon  contracts  which  were  not  specified, 
and  upon  the  nulHty  of  stipulations,  and  from  thence  they  drew 
up  the  rule:  "No  obUgation  without  cause."  "He  has  no  good 
reason  to  claim,"  says  P.  de  Fontaines,  15,  13,  "who  claims  be- 
cause an  agreement  was  made  with  him,  without  advancing  an- 
other reason."  ^  This  principle  was  all  the  more  readily  accepted 
because  it  squared  in  many  cases  with  the  older  theory  of  the 
necessity  of  at  least  partial  performance  of  the  contract  in  order 
that  an  obligation  should  result  therefrom.^  Bilateral  agreements 
carry  their  "cause"  within  themselves;  the  engagement  under- 
taken by  one  party  accounts  for  and  justifies  the  engagement  of 
the  other  (for  example,  sale).  But  the  unilateral  contract  does 
not  always  reveal  its  "cause";  sometimes  it  is  reduced  to  a 
mere  abstract  promise  (I  shall  pay  so  much  to  X  .  .  .).^  In  this 
form  the  Roman  law  validated  it  on  principle,  excepting  that  it 
permitted  an  indirect  attack  to  be  made  upon  it  and  its  efl^ects 
thus  to  be  paralyzed;  our  old  law  did  not  recognize  the  effects 
of  a  simple  promise  unless  it  rested  upon  a  lawful  "cause" 
(for  example,  I  will  pay  100  which  has  been  lent  to  me,  or  for 
some  one  to  build  me  a  wall).^  The  question  was  raised  espe- 
cially with  respect  to  deeds  under  private  seal  or  bills  without 
a  "cause";  sometimes  the  "cause"  is  not  recited  because  it 
is  unlawful,  and  sometimes  in  order  to  simplify  matters.^ 
Was  the  bill  thus  worded  a  sufficient  proof  of  the  existence  of  the 
contract?  The  Romanists  incline  towards  the  aflSrmative  of  this 
question;  those  who  were  more  true  to  the  spirit  of  the  old  law 
maintained  that  title  and  promise  were  null,  as  though  made  with- 
out any  "cause."  A  controversy  took  place  over  this  question 
and  until  the  very  end  they  were  not  able  to  reach  any  agree- 

^  "Summa  Norm.,"  90,  3.  On  the  contrary,  the  writing  did  away  with  all 
need  for  a  consideration  according  to  the  old  theory. 

2  Esmein,  p.  64;  Boiceau,  "Preuve  par  Tem.,"  II,  3  (letters  of  rescission). 

'  In  the  case  of  gifts  the  spirit  of  generosity  has  been  qualified  as  the  con- 
sideration. 

«  Charondas,  on  Boutaric,  p.  841  (II,  37);  "Pand.,"  p.  542;  "Cout.  de 
Paris,"  p.  105. 

*  The  Decretals  have,  to  a  certain  extent,  given  of  the  1,  25,  4,  Dig.,  "de 
prob.,"  an  official  commentary.  Dig.  X,  2,  22,  14;  Beaumanoir,  35,  22:  "The 
writing  which  says  that  I  owe  money  and  does  not  mention  for  what  I  owe  it 
is  a  suspicious  thing  of  malice,  and  when  such  a  letter  is  brought  into  court 
the  judge  should  know  the  thing  from  whence  such  debt  arose  before  he 
insists  on  its  payment."  —  Boutaric,  II,  37  (p.  839:  "Ego  T.  confiteor  tibi 
debere  C") ;  notes  in  blank  to  bearer.  —  "Toulouse,"  44  (c/.  Arts.  17,  26  et  seq., 
43);  Casaveteri,  fo.  20  v.  (not  apphed);  Soulatges,  p.  38;  "  Montpellier,"  42; 
Serres,  "Inst.,"  Ill,  22. 

516 


Topic  5]  NULLITY   OF   CONTRACTS  [§  384 

ment.  From  these  discussions  issued  the  obscure  Article  1132  of 
the  Civil  Code.^ 

§  383.  Relative  Nullity  affected  contracts  made  by  married 
women  without  authority,^  or  by  prodigals  who  had  been  for- 
bidden to  make  them;'  the  other  party  was  bound  civilly 
towards  the  person  under  a  disability/  and  the  latter  was  only 
held  bound  by  a  natural  obligation  at  the  period  when  this  Roman 
theory  penetrated  into  the  law-books.  ^ 

§  384.  Rescission  took  place  in  case  of  lack  of  consent,  vio- 
lence (force,  fear),  fraud  (deceit,  evil  craft,  cheating),  mistake,^  in 
case  of  any  "lesion"  received  by  a  minor '^  ("minor  restituitur  non 
tanquam  minor,  sed  tanquam  laesus"),^  of  more  than  half  if  it  was 
a  contract  with  a  person  over  age,  but  then  only  in  case  of  sale 
and  commutative  contracts  ("lesion  enorme"),^  and,  finally,  in 
case  of  a  woman  contracting  in  violation  of  the  Velleianum 
Decree  of  the  Senate,^  °  and  by  the  son  of  the  family  in  countries  of 
written  law,  in  violation  of  the  Macedonian  Decree  of  the  Senate. 
The  contract  which  was  subject  to  rescission  had  all  the  effects  of  a 
valid  contract  until  the  rescission"  was  sanctioned  in  writing.^^  The 

1  MerZin,  "Q.  de  Droit,"  see  "Cause";  Denisart,  ibid.;  Ferrihre,  see"  From- 
esse."  Authors  and  Orders  cited  in  great  numbers.  The  difficulty  became 
compHcated  as  a  consequence  of  the  rejection  of  the  "defense  of  unnum- 
bered money":  Loysel,  707;  Beaumanoir,  35,  20;  "A.  C,  Anjou,"  IV,  p.  340, 
363;  Boutaric,  I,  55;  "N.  R.  H.,"  1888,  319.  Distinction  between  "I  admit 
that  I  owe"  and  "I  promise  to  account!"  Cf.  "Bill  of  Exchange." 

2  Beaumanoir,  43,  22;  34,  50,  56;  70,  7;  Desmares,  289;  Boutaric,  I,  19; 
II,  29. 

3  Cf.  Boutaric,  "Actes  du  Pari.,"  I,  2964;  "Cout.  Not.,"  178;  Pothier, 
"Oblig.,"  1,  1,  1,  4.  Annulment  of  the  deeds  of  those  persons  prohibited 
from  making  them  on  account  of  dementia. 

■•  Cf.  Beaumanoir,  34,  56;  12,  45. 

6  Domat,  2,  7,  1,  11;  Pothier,  "Oblig.,"  192;  Dunod,  "Prescr.,"  127;  Mortet, 
131. 

*  P.  de  Fontaines,  15,  50;  Beaumanoir,  6,  25;  33,6;  34^,26  etseq.;  "Jostice," 
p.  Ill  et  seq.,  155;  Boutaric,  I,  19,  20,  54,  101;  II,  25;  "L.  d.  Droiz,"  no.  145; 
"A.  C,  Anjou,"  II,  106,  etc.;  Desmares,  141;  "Olim,"  III,  560;  Boutaric, 
"Actes  du  Pari.,"  II,  3308,  6867;  Mortet,  133;  Sieget,  "Akad.  Wien.,"  128 
(compulsion);  Loysel,  830. 

'  P.  de  Fontaines,  14,  10,  24;  15,  35;  "Jostice,"  3,  5,  7;  9,  1;  Beaumanoir, 
16,  8,  11  {cf.  Roman  Law);  "Const,  du  Chat.,"  72;  "Olim,"  II,  205. 

^  Flach,  p.  94,  and  authors  cited. 

^  "Wis.,"  5,  4,  7;  "Bai.,"  17,  9  (a  very  low  price  does  not  cancel  the  sale; 
contra:  Dig.  X,  3,  17,  3,  6;  Giraud,  II,  58;  "Olim,"  III,  480  (in  1307);  Masuer, 
23,  7,  40;  Pothier,  "Vente,"  no.  333;  Stohhe,  §  185;  Fertile,  IV,  503;  Glasson, 
VII,  622;  Tpost,  "Sale."     [L68ion  is  our  "failure  of  consideration."  —  Tr.] 

10  Thevenin,  "Textes,"  no.  131;  LabbS,  "Cone,"  IX,  473,  c.  19. 

"  Form  of  these  letters:  Mortet,  119.  —  Lapeyrhre,  "D6cis.,"  381;  Bourjon, 
I,  583;  D'Aguesseau,  cd.  1772,  II,  262. 

1^  To  ratify  means  to  prove,  to  confirm,  to  accomplish,  and,  to  a  certain 
extent,  to  complete:  Du  Cange,  "Interinare,"  "Intcgrare";  see  Ragueau, 
Ferriere,  etc.     When  the  judge  ratifies  the  letters  of  restitution  or  rescission  he 

517 


§  384]  OBLIGATIONS  [Chap.  Ill 

only  one  who  wa3  authorized  to  rescind  was  the  interested  party, 
and  he  could  do  so  either  by  using  it  as  a  defensive  plea  or  by  means 
of  an  action;  it  was  not  sufficient,  to  enable  him  to  succeed,  for 
him  to  prove  that  there  was  a  just  reason  for  rescission ;  he  must 
furthermore  show  that  he  was  justified  because  of  some  injury:  ^ 
"Without  damage  no  nullity."  In  case  of  serious  injury  the  de- 
fendant could  avoid  rescission  by  indemnifying  his  opponent.  The 
right  of  rescission  was  lost  by  ratification  of  the  contract^  or  the 
prescription  of  ten  years  (Ordinance  of  1510,  46);^  the  defense 
of  rescission  was  not  lost  by  prescription.^ 

recognizes  that  the  considerations  for  which  they  were  issued  really  exist,  and 
that  they  have  not  been  given  on  a  false  pretense;  consequently,  he  gives 
them  his  approval  and  orders  that  they  be  carried  out:  "Et.  de  St.  Louis,"  II, 
34,  37. 

1  Guyot,  see  "Lesion";  Charondas,  "Pand.,"  II,  40. 

2  Renunciations  made  in  advance  contained  in  deeds  were  frequent,  and 
they  were  confirmed  by  oath:  Beaumanoir,  35,  20;  Masuer,  18,  12  (general 
renunciation  is  void).  Cf.  "Cod.  Just.,"  2,  27,  1;  "B.  Ch.,"  1849,  445;  1856, 
466;  1874,  415;  Charondas,  "Pand.,"  II,  40;  Despeisses,  I,  807;  Pothier,  no. 
103;  Ferriere,  see  "Renonciation." 

3  "Ord."  of  1539,  134;  L'Hommeau,  p.  320. 

^  " Temporalia ad  agendum,  perpetua  ad  excipiendum " :  Imbert,  "Enchir.," 
see  "Exception";  Henrys,  "CEuvres,"  II,  961;  Dunod,  "Prescr.,"  p.  206. 


518 


Topic  6]  SOME   PARTICULAR   KINDS   OF   CONTRACTS 


[§385 


Topic  6.     Some  Particular  Kinds  of  Contracts  ^ 


§  385.  Loan  with  Interest.  —  (A)  Why 

was  it  forbidden? 
§386.  The    Same.— (B)  Sanction   of 

this  Prohibition. 
§  387.  The  Same.  — (C)  Reaction. 
§388.  Estabhshment  of  Rents.  — (A) 

Origin. 
§  389.  The  Same.  — (B)  Rent-charge. 
§  390.  The    Same.  — (C)  Constituted 

§  391.  The  Same.  — (D)  Life  rents. 
§  392.  Assignment    of    Claims.  —  (A) 

Early  inaUenability. 
§393.  The  Same.  —  (B)  Indirect  means. 
§394.  The   Same.  — (C)  Assignment. 

§'395.  The     Same.  — (D)      Payment 
with  subrogation. 


§  396.  The  Same.  —  (E)  Bills  to  bearer 
and  to  order. 

§397.  The  Same.  — (F)  BiUs  of  Ex- 
change. 

§  398.  Agency  and  Representation.  — 
(A)  General  Remarks. 

§399.  TheSame.  — (B)"Salmannen." 

§  400.  The  Same.  — (C)  Attorneys. 

§401.  Sale.  — (A)  Formation. 

§  402.  The  Same.  — (B)  Effects. 

§  403.  The  Same.  —  (C)  Warranty  be- 
cause of  Eviction. 

§404.  The  Same.  —  (D)  Rescission  of 
the  Sale. 

§  405.  Civil  and  Commercial  Part- 
nerships.—  (A)  Companies. 

§406.  The  Same.  — (B)  Commercial 
Partnerships. 


§  385.  Loan  with  Interest.  —  (A)  Why  was  it  forbidden?  The 
forbidding  of  lending  at  interest  persisted  throughout  the  old 
law;  only  gratuitous  lending  was  admitted,  whereas  the  Roman 
laws  allowed  of  the  collecting  of  interest  on  money  which  was 
lent.^  The  Church  drew  this  prohibition:  1st.  From  the  Mosaic 
precepts,^  according  to  which  the  Hebrews  when  they  lent  money 
were  not  authorized  to  demand  interest,  excepting  from  strangers; 
among  themselves  they  were  to  treat  one  another  like  brothers 
and  to  be  contented  with  the  restitution  of  the  capital.  2d.  From 
the  words  of  the  Gospel  of  St.  Luke,  vi,  35,  "Mutuum  date  nihil 
inde  sperantes,"  ^  and  from  the  spirit  of  fraternity  which  is  the 

^  The  detailed  study  of  contracts  would  carry  us  too  far;  we  must  limit 
ourselves  to  presenting  with  regard  to  some  of  them  a  few  theories  that  are 
especially  important.  With  regard  to  the  others  a  short  bibliography  will  suf- 
fice.   Cf.,  in  general,  account  books  (French,  Bonis,  J  acme,  Olivier,  etc.). 

2  Marculfe,  2,  26,  17;  "  App.,"  15,  50;  "Liut.,"  16;  "Wis.,"  5,  5,  8,  etc. 

3  "Deuter.,"  xxiii,  19,20;  "Leviticus,"  xxv,  36,  37;  "Psalms,"  xiv,  15.— 
In  primitive  legal  systems  interest  is  not  a  rare  thing.  Lending  of  domestic 
animals  among  the  Ossetes:  the  increase  is  a  natural  sort  of  interest  which  is 
restored  with  the  capital:  "Senchus  Mor.  id."  The  Mohametan  law  pro- 
hibited lending  at  interest,  under  whatever  form  it  may  be  disguised  (even  a 
case  of  interest  where  delay  is  granted),  but  the  law  is  evaded  by  means  of 
sale  with  future  delivery  ("salam"):  Dareste,  "Etudes,"  58;  J.  Kohler, 
"Modeme  Rechtsfr.  b.  Islam.  Jur.,"  1885. 

*  "Vulgate"  (cf.  contra:  "Luke,"  xix,  and  "Matt.,"  xxv:  parable  of 
the  talents).  Is  this  indeed  the  meaning  of  the  Greek  text:  "Samffxe 
fjL-nd^v  dTreXTT/foi'Tes"  ?  Th.  Reinach,  "R.  des  Et.  Grecques,"  VI,  52,  1894, 
suggests  that  we  read,  " d^>Te\^^lj;^ofTes"   and  translates:  to  lend  without  ex- 

519 


§  385]  OBLIGATIONS  [Chap.  Ill 

foundation  of  Christ's  doctrine.^  Once  the  rule  was  established 
and  applied,  an  authority  which  was  almost  equal  to  that  of  the 
Scripture  was  found  to  justify  it,  independently  of  every  religious 
motive;  I  refer  to  Aristotle.  This  philosopher  had  maintained  that 
money  was  naturally  sterile:  "Nummus  nummum  non  parit."  ^ 
This  was  rather  a  poor  sophism,  but  it  is  excused  when  one  reflects 
upon  the  hard  treatment  inflicted  upon  people  who  were  insolvent 
and  the  disturbance  which  the  question  of  debts  gave  rise  to  in  the 
ancient  city.^  In  the  same  spirit,  Plato  and  other  Utopians  ban- 
ished gold  and  silver  from  their  ideal  republics.  But  this  did  not 
prevent  Aristotle  from  drawing  a  very  good  income  from  those 
sterile  coins  with  which  the  generosity  of  the  kings  of  Macedo- 
nia abundantly  provided  him.  In  the  Middle  Ages  the  paradox 
became  a  truth;  the  scholastics  were  able  to  take  it  seriously;  in 
fact,  the  majority  of  the  time  gold  and  silver  remained  unpro- 
ductive in  the  hands  of  those  who  amassed  it,  because  they  found 
absolutely  no  investment  for  it.  By  what  right  would  they  have 
demanded  interest  from  borrowers?  If  they  ran  a  risk  of  losing 
their  capital,  this  risk  was  lessened  and  compensated  for  by  the 
severity  of  the  measures  of  execution  against  debtors.  The  eco- 
nomic condition  thus  tallied  with  the  religious  ideas,  in  order 
to  justify  the  prohibition  of  interest.  Humanitarian  arguments 
came  as  a  balance  to  the  arguments  drawn  by  the  theologians 
from  Divine  law  and  natural  law.  Even  in  those  periods  when  the 
Church  was  the  most  powerful,  usury  did  not  cease  to  be  prac- 
tised; the  rate  of  interest  was  then  raised  to  a  ruinous  rate,  be- 
cause the  lender  ran  too  many  dangers  not  to  impose  upon  the 
borrower  the  most  burdensome  stipulations.     St.  Augustine  was 

pecting  anything  in  return;  that  is  to  say,  without  hoping  that  even  the  capital 
will  be  paid  back,  or,  in  other  words,  says,  "  Give":  "Luke,"  vi,  34.  Saint 
Basil's  Homily  against  Usurers"  thus  interprets  the  passage  from  the  Gospel 
and  explains  it  by  the  idea  that  "He  who  gives  to  the  poor  lends  to  God." 
Saint  Gregory  of  Nyssus  recommends  that  one  give,  and,  if  not,  then  one 
should  lend  (without  interest):  for  "lending  is  a  secondary  form  of  gift." 
Cf.  "Deuter."  xv,  7;  "Matt.,'^  v,  42. 

^  Communistic  tendencies  of  the  first  Christians:  Council  of  Nicea  325, 
c.  17;  "Can.  Apost.,"  44,  etc.;  Decree  of  Pope  St.  Leo,  445.  "Dec.  Gratian," 
II,  14,  q.  3,  1  et  seq.;  Dig.  X,  5,  19;  Benott  XIV,  Bull  "Vix  pervenit,"  1745; 
Pothier,  op.  cit.;  enumeration  of  the  classical  laws;  R.  de  Pennafort,  "Summa," 
ed.  1603,  p.  227;  Maffei,  "Impiego  dal  Denaro,"  1744;  Lancelot,  "Inst.,"  4,  7. 

2  "Polit.,"  1,  3;  St.  Thomas,  loc.  cit.  Another  scholarly  subtlety:  When 
one  lends  money  and  takes  back  interest  besides  the  capital  it  is  as  though  one 
sold  wine  for  a  certain  price  and  had  oneself  paid  over  and  above  for  the  use 
of  the  wine.     {Cf.  lease  of  a  house  for  a  price  based  on  the  use  one  has  of  it). 

*  Hebraic  Jubilee  ("  Levit.,"  xxv.),  abolition  of  debts  by  Solon.  History 
of  the  "nexi"  at  Rome.     In  Gaul,  "obserati":  CoBsar,  "De  Bell.  Gal."  VI. 

520 


Topic  6]  SOME   PARTICULAR   KINDS   OF   CONTRACTS  [§  386 

angry  at  seeing  the  capitalists  strangle  the  poor  man:  "trucidat 
pauperem  foenore."  How  much  more  true  was  this  phrase  in  the 
Middle  Ages!  The  legislator  thought  it  was  his  duty  to  inter- 
vene/ but  he  overshot  his  mark:  the  more  harsh  he  became,  the 
more  did  the  evil  increase. 

§  386.  The  Same.  —  (B)  Sanction  of  this  Prohibition.  By  usury 
was  understood  all  interest,  no  matter  how  little  it  might  be.^  It 
is  especially  on  the  occasion  of  the  lending  of  commodities  that 
usury  is  committed;  it  appears  there  openly.  But  it  may  also  be 
met  with  in  a  disguised  form  in  other  contracts;  there  is  scarcely 
any  kind  of  contract  where  one  is  not  liable  to  see  this  "  turpa 
lucrum,"  of  which  the  Church  has  a  horror;  for,  ordinarily,  one 
does  not  act  except  with  a  view  to  profit.  The  casuists  sought  to 
proscribe  this  everj'where.  As  a  consequence  of  their  extreme 
views,  the  forbidding  of  usury  was  extended  almost  beyond  belief 
and  becomes,  as  it  were,  the  keystone  of  political  economy  in  the 
Middle  Ages:  sale,  payment,  damage,  partnership,  banking,  bills 
of  exchange,  —  in  so  many  matters  is  it  especially  dealt  with.^ 
The  jurists  only  follow  the  theologians  at  a  distance  along  this 
way;  especially  from  the  sixteenth  century  do  they  make  the  pro- 
hibition applicable  only  in  the  limited  field  of  the  loan,  and 
jurisprudence  in  its  last  stages  only  provides  against  excessive 
usury.  At  first  the  prohibition  was  only  applied  in  the  laws  of 
the  Church,"*  to  the  ecclesiastics;  it  was  less  a  precept  than  a  piece 
of  advice;  it  was  addressed  to  those  who  aspired  to  a  perfect  state 
rather  than  to  the  mass  of  Christians.  But  the  stricter  tendency 
prevailed;  to  lend  for  interest  was  considered  a  mortal  sin,  even 
in  the  case  of  the  laity.  ^  This  conception  passed  into  secular 
legislation  under  the  Carolingians  (Cap.  789,  c.  5).^    From  this 

^  Cf.,  the  measures  taken  by  Napoleon  I  against  the  Jews  of  Alsace,  anti- 
Semitism  in  certain  localities  (Poland,  Galicia). 

*  Cf.  Dig.,  tit.,  "de  usuris  et  fructibus"  "Capit,"  I,  119  (Ansegise):  "usura 
est  ubi  amplius  requiritur  quam  datur  " ;  Du  Cangc,  see  "  Usurarii."  The  Ger- 
man term:  "Zins     ("census"),  meaning  rent. 

*  Cf.  Endemann,  op.  cit.;  Ashley,  I,  164  (theory  of  St.  Thomas  as  to  the 
fair  price).  Taxes  on  bread  and  other  produce:  Gui  Pape,  "De  Contr. 
illicitis  q.  usurarii,"  in  "Tract,  ill.  J.  C,"  VII,  72;  Loysel,  715;  Bonacina, 
"De  Contr.,"  1621;  Polier,  "Juste  Prix,"  Thesis.  1903. 

*  Bruns,  "Cone";  "Tours,"  I,  13  (II,  142);  '^' Orleans,"  III,  27  (III,  200). 
Cf.  the  rule  that  the  cleric  should  not  carry  on  any  commerce. 

5  Decretal  of  St.  Leo,  in  Gralian,  II,  14,  4,  7  (in  444);  Decree  of  Gratian, 
2d  p.,  cause  14,  q.  3  et  seq.;  Dig.  X,  5,  19,  "  de  usuris  "  (following  the  title  "  de 
furtis");  CouncU  of  Vienna,  1311  ("Clem.,"  5,  5,  1);  Hostiensis,  fo.  672;  G. 
Durand,  etc. 

*  "Omnino  omnibus  intordictum  est  ad  usuram  ahquid  dare."  The  Capit- 
lilary  invokes  the  Decretal  of  Pope  Leo,  the  canons  of  the  apostles  and  Scrip- 

521 


§  386]  OBLIGATIONS  [Chap.  Ill 

time  on  it  was  sanctioned  by  a  large  number  of  laws/  and  it 
nicreased  in  the  majority  of  the  Customs.^  The  legal  effect  of 
the  prohibition  of  lending  for  interest  was  civil  or  penal.  1st. 
From  the  civil  point  of  view,  the  contract  was  absolutely  void;  the 
lender  could  not  claim  the  interest  which  had  been  agreed  upon; 
the  borrower  who  had  paid  this  interest  was  authorized  to  have  it 
restored  to  him.^  2d.  From  the  yenal  yoint  of  view,  the  lender  was 
exposed  to  canonic  penalties,  loss  of  their  position  in  the  case 
of  clericals,  excommunication  in  the  case  of  the  laity.^  The 
Customs  confiscated  the  body  and  the  possessions  of  the  usurer 
for  the  benefit  of  the  lord;  ^  the  Ordinances  prescribed  various  pen- 
alties against  them;  thus  the  Ordinance  of  Blois,  1579,  Art  202, 
inflicted  upon  them  for  the  first  time  the  public  penance  and 
pecuniary  fines,  one-quarter  of  which  was  paid  to  the  informer;  in 
case  of  repetition,  confiscation  of  body  and  possessions  (the  galleys 
or  perpetual  banishment).  But  in  reality  these  penalties  affected 
only  excessive  usury;  the  public  Ministry  did  not  especially  pros- 
ecute moderate  usury,  although  the  text  of  the  Ordinances  was 
general.^  The  result  of  what  we  have  just  said  is  that  the  right  to 
judge  usurers  belonged  at  the  same  time  to  the  Courts  of  the 
Church  ^  and  to  the  secular  tribunals.  In  the  end  the  latter  at- 
tained an  exclusive  jurisdiction  in  this  matter,  as  in  many  others 
(sixteenth  century) ;  they  were  not  lacking  in  reasons  for  its  justi- 
fication for  example,  such  reasons  as  these,  —  that  lending  gave 

ture.  Cf.  in  the  Boretius  ed.,  Index,  see  "Usura,"  "Foenus";  "L.  Edwardi 
Conf.,"  37;  "Const.  Sic,"  I,  6.  Italian  statutes  in  Fertile,  IV,  594;  "Siete 
Part.  "  5    1. 

1  ''Conf.  des  Ord.  de  Gu^nois,"  IV,  7:  1254,  1311,  etc.,  1579,  1629,  etc.; 
Isanibert,  Table,  see  "Usure,"  "Interet,"  "Pret";  see  Guyot ;  L'Hommeau, 
336;  Argou,  IV,  18. 

2  "T.  A.  C,  Norm.,"  49;  "Summa,"  19;  Beaumanoir,  68;  Glanville,  X,  3; 
Boutaric,  II,  11;  "Gr.  Gout.,"  573;  "Et.  de  St.  Louis,"  I,  91;  Giraud,  "Essai," 
II,  15,  19,  23,  37,  226;  "Schwabensp.,"  I,  165;  "Ac.  leg.  Toulouse,"  XI,  51; 
XII,  400.  —  All  the  more  was  compound  interest  condemned.  Difficulties  of 
proof:  "Toulouse,"  112. 

'  3  "Quid"  if  there  has  been  an  oath?  Dig.  X,  5,  19,  13.  "Fides  plivita?" 
"Montpellier,"  68  (to  keep  the  oath).  Cf.  Pothier,  112;  Serres,  III,  15.— 
The  ParUament  of  Toulouse  did  not  allow  interest  which  had  been  volun- 
tarily paid  to  be  reclaimed. 

*  With  excommunication  are  connected  a  refusal  of  religious  burial,  the 
cancelling  of  the  wall,  and  the  disability  to  be  a  witness:  Du  Cange,  see  "  Usur- 
arii,"  "Reg.  de  I'Offic.  de  Cerisy,"  no.  9  et  seq.;  Desplanque,  "Infames,"  p.  18; 
"Olim,"  Index,  see    "Usur." 

*  Anglo-Norman  law:  dead,  he  belonged  to  the  king,  and  living,  to  the 
Church:  "Summa  Norm.,"  19;  "Regiam  Maj.,"  2,  54, 1;  "Dialog.  deScacc," 
II,  10. 

«  Cf.,  however,  the  Ordinance  of  Jan.  13,  1311;  Fleury,  "Inst.,"  I,  445. 
^  Beaumanoir,  58,  56;  "Et.  de  St.  Louis,"  I,  255. 

522 


Topic  6]  SOME   PARTICULAR   KINDS   OF   CONTRACTS  [§  387 

rise  to  a  personal  action,  or  that  usury  fell  under  the  prohibition 
of  the  Ordinances. 

§  387.  The  Same.  —  (C)  Reaction.  Neither  the  Church  nor 
royalty  put  an  end  to  lending  at  interest;  it  was  too  essential  a 
factor  in  economic  order  not  to  be  justifiable  in  spite  of  the 
proscriptions.^  Step  by  step,  it  regained  the  ground  which  it  had 
lost.  People  did  not  do  any  more  lending,  but  they  associated 
themselves  together,  one  furnished  the  money  and  the  other  his 
labor,  and  the  benefits  were  divided;  agency,  the  assignment  of 
real  estate  for  payment  of  a  debt,  sale  with  the  power  of  redemp- 
tion, exchange,  and  the  establishment  of  rents  performed  the  func- 
tion of  lending.  The  latter  was  tolerated  on  the  part  of  the  Jews, 
to  whom  their  religion  did  not  forbid  it;  in  lending,  the  Jews  did 
not  contemplate  doing  a  charitable  act  or  a  kindness;  they  were 
speculating,  and,  as  they  occupied  no  regular  place  in  the  social 
organization  of  the  Middle  Ages,  trading  in  money  became  for 
them  a  profession  and,  as  it  were,  the  trade  of  an  outcast.^  They 
had  the  monopoly  of  this  until  it  became  divided  between  them  and 
the  Lombards  and  the  inhabitants  of  Caor;^  the  State  thus  granted 
to  them  for  a  money  price  that  which  made  it  violate  a  law  of  the 
Church,  but  it  superintended  them,  which  to  a  certain  extent 
eased  its  conscience.  The  progress  of  business  and  the  advantages 
which  arose  therefrom  caused  the  mistake  made  by  Aristotle  to 
be  understood;  money  became  fruitful  and  multiplied;  at  the  time 
of  fairs  in  certain  towns  interest  was  allowed;  ^  maritime  loans,^ 

^  So  much  so  that  the  monasteries  filled  the  part  of  establishments  of  credit. 
We  know  the  operations  carried  on  by  the  Templars.  As  to  monasteries 
in  Normandy,  from  the  eleventh  to  the  thirteenth  century,  cf.  thesis  by  GeneS' 
thai,  1901.     In  very  old  times  the  temples  were  the  bankers  of  the  State. 

2  A  system  of  expulsion  and  calling  back  followed  by  confiscation  prac- 
tised by  the  old  monarchy  against  the  Jews,  in  such  a  way  that  the  king 
benefited  by  their  plunder  while  at  the  same  time  appearing  to  satisfy  popular 
sentiment.  As  to  the  legislation  in  matters  of  usury,  cf.  Isambert,  see  "  Juifs," 
"Int6rets,"  etc.  A  very  high  rate  of  interest  is  tolerated;  for  example,  more 
than  43  per  cent  (1311). —  C/.  Dig.  X,  5,  19,  18;  Council  of  Lateran,  1215; 
Endemann,  II,  383.  — Italy:  Fertile,  IV,  602. —  Bohemia:  "Ord."  1497;  G. 
Durand,  "Spec,"  IV,  4;  Giravd,  II,  29,  etc. 

»  "Ord."  1250,  1311,  etc.;  Isambert,  see  Table.  Ashley,  I,  257,  cites  a 
statute  of  1235:  a  loan  nominally  for  three  months,  after  which  compensatory 
interest  will  be  due  "ex  mora." 

*  Fairs  in  Champagne,  1311;  in  Lyons,  1419.  Towns  of  Montpellier, 
Alais,  Tournai,  Saint-Omer,  Barrois.  —  Contra,  Dig.  X,  5,  19,  19;  Fassin, 
"Th^se,"  1900. 

*  Contrary  to  the  "Deer.  Naviganti"  (Dig.  X,  5,  19,  19)  which  prohibits 
bottomry  loans.  Tremendous  risk  incurred  by  the  lender,  enormous  profits 
in  favor  of  the  borrower:  Fothier,  "Tr.  du  Prlt  k  la  Gr.  Aventure";  Camus 
and  Dupin,  pp.  224,  439  (bibl.);  Ashley,  II,  492. 

523 


§  387]  OBLIGATIONS  [Chap.  Ill 

and  sometimes  even  commercial  loans/  escaped  the  general  pro- 
hibition. In  these  exceptional  cases,^  whether  persons  or  localities 
were  concerned,  the  rate  of  interest  was  ordinarily  limited  by  the 
legislature.^  A  mass  of  expedients  was  devised  to  evade  the 
prohibition  in  the  instances  where  it  still  survived ;  *  some  were 
rejected  by  the  theologians  and  the  jurists/  and  others  were 
openly  practised  and  recognized  as  lawful^  by  the  Church  and  the 
State:  thus  the  "rente"  for  example.  The  theory  of  compen- 
sating interest  (due  in  the  case  of  "damnum  emergens"),  which 
was  held  to  be  lawful  from  the  fourteenth  century,^  in  contrast 
with  lucrative  interest  (due  in  the  case  of  "lucrum  cessans"),  which 
was  unlawful,  made  a  large  breach  in  the  principle.  It  was  not 
difficult  to  find  cases  where  interest  was  only  an  equitable  com- 
pensation for  the  disadvantage  suffered  by  the  lender  in  giving 

1  Scacda,  "De  Commerciis"  (end  of  sixteenth  century),  1648;  Argou, 
III,  30:  Provence,  Dauphine,  Bdarn,  Franche-Comt6,  Alsace;  Henrys,  I,  4, 
q.  110;  Serves,  "Inst.,"  Ill,  15  (obligations  between  merchants).  But  cf. 
Pothier,  68,  "  Tr.  de  la  Pratiq.  des  Billets  et  du  Pret.  d'Argent  entre  Negociants," 
1684;  "Tr.  des  Prets  de  Commerce,"  1738. 

2  Other  exceptional  cases  sometimes  admitted,  sometimes  disputed,  by 
jurisprudence  and  doctrine;  for  example,  funds  of  the  ward,  marriage  portion, 
etc.:  Civil  Code,  2001,  1372-1375;  Ferriere,  see  "Deniers  pupillaires " ;  Mace- 
donian "Senatusconsultum,"  supra. 

*  Cf.  Fertile,  IV,  604  (tex-ts). 

*  Cepolla,  "De  Simulatione  Contractuum,"  fifteenth  century.  These  tricks 
of  the  new  law  in  order  to  break  through  and  overpower,  thanks  to  the  art 
of  the  casuists,  the  scruples  of  timid  consciences  as  well  as  the  provisions  of 
the  laws,  are  the  despair  of  the  Jansenists:  Pascal,  "Provinciales,"  I,  8.  Cf. 
the  old  teachers  {Maillart,  etc.). 

^  Such  are  the  "usurious"  ("mohatra")  contract  condemned  by  Innocent 
XI  and  the  triple  contract  condemned  by  Sixtus  V,  1586.  The  usurious 
contract  was  the  buying  on  credit  of  merchandise  which  one  immediately 
resells  at  a  loss  to  the  vendor  himself;  one  receives  the  price  of  the  resale, 
for  example,  9000  francs,  and  one  pays  back  the  purchase  price,  —  for  example, 
10,000  francs;  the  difference  between  them  represents  the  interest:  Pothier, 
"Vente,"  38.  —  The  triple  contract  ("trinus  contractus")  was:  (a)  in  the 
case  of  an  association;  I  furnish  100,000  francs  to  a  trader,  who  will  give 
me  20  per  cent  of  the  profit  that  he  will  make;  (b)  insurance;  out  of  my  share 
of  these  profits  I  promise  him  10  per  cent  by  way  of  insurance  premium,  in 
order  that  he  shall  bind  himself  to  pay  me  back  the  capital  under  any  circum- 
stances; (c)  in  case  of  a  sale;  as  it  is  not  certain  that  there  will  be  any  profits, 
I  sell  him  back  5  per  cent  of  them,  which  represents  my  uncertain  profit; 
and  he  pledges  himself  to  give  me  a  lesser  share  of  the  profits,  5  per  cent,  which 
he  insures  me.  This  is  the  same  as  though  I  had  lent  at  the  rate  of  5  per  cent. 
Practised  between  three  different  persons  the  triple  contract  is  lawful :  Pothier, 
"Soci6tes,"  no.  22;  Ashley,  II,  518. — On  the  "mort-gage"  (practised  by 
the  abbeys  (Gellone,  Redon)  as  well  as  by  individuals),  cf.  post. 

«  The  result  of  this  is  treatises  like  that  of  Broedersen,  "De  Usuris  Ucitia 
et  illicitis,"  1743;  Camus  d'Houlouve,  "Tr.  des  Int^r^ts,"  1774  (that  is  to  say, 
lawful  interest). 

^  On  the  theory  of  the  "  Id  Quod  Interest,"  see  the  canonists  and  the  treatise 
by  Dumoulin;  cf.  Nani,  "Arch.  Giur.,"  XVI,  207;  Endemann,  II,  243,  317; 
"L.  Wis.,"  7,  5,  8;  2,  5,  7. 

524 


Topic  6]  SOME   PARTICULAR   KINDS   OF   CONTRACTS  [§  387 

up  the  possession  of  his  money  (for  example,  delay  by  the  debtor) ;  * 
and  as  the  number  of  secure  investments  had  become  greatly  in- 
creased, it  became  a  truth  when  one  said  that  the  lender  suffered 
a  damage  rather  than  lacked  a  profit.^  Speculators  invented  new 
forms  of  credit  outside  of  the  traditional  limits,  which  escaped 
the  now  antiquated  legislation,^  by  reason  of  the  time  of  their 
birth.  The  exceptions  overthrew  the  rule,'^  In  the  eighteenth 
century  philosophers  and  theologians  were  still  disputing;  but 
the  cause  of  the  lawfulness  of  lending  at  interest  was  won.^  The 
Revolution  met  with  no  resistance  when  it  decreed  the  new  prin- 
ciple on  the  2d  of  October,  1789.  It  was  not  suggested  that  they 
establish  the  absolute  freedom  of  lending  at  interest,  but  that  they 
fix  by  law  a  maximum  rate  which  lenders  could  not  exceed,  and 
this  was  in  the  interest  of  the  foolish  and  the  necessitous  whom 
the  State  ought  to  protect  just  as  it  does  minors  or  the  feeble- 
minded. But  this  law  was  not  enacted  during  the  Revolution,^  a 
fact  which  had  this  result  without  its  being  intended,  that  is,  the 
rate  of  interest  was  unlimited  until  1807.  At  this  date  the  Law  of 
the  3d  of  September  fixed  a  maximum  (which  it  took  from  the 
legislation  of  the  Old  Regime  with  relation  to  "rentes"),  —  five  per 
cent,  that  is  to  say,  one  denier  in  twenty  according  to  the  old 

1  Pawn  Shops  ("Monts-de-pi^t4,"  "Montes-Christi")  were  meant  by  their 
founders  to  be  establishments  of  free  credit  for  the  poor;  they  deducted  a 
moderate  interest  so  as  to  cover  their  general  expenses.  The  oldest  of  them 
is  perhaps  that  of  Orvieto,  1463  (following  the  teachings  of  Fr.  Bartolomeo  da 
Colle).  Details  and  bibl.  in  Fertile,  IV,  608;  Endemarm,  II,  374;  Ashley, 
II,  530;  Holtzapfel,  "Anfange  d.  Montes  pietatis,"  1903. 

^  Theory  of  P.  de  Castro  (proof  of  the  "lucrum").  Theory  of  the  risk  in- 
curred by  capital:  Endemann,  II,  322. 

'  Voltaire,  "Diet,  phil.,"  see  "Int6rets":  the  Sorbonne  has  decided  that 
lending  at  interest  is  a  mortal  sin.  There  is  not  one  of  these  reasoners  who  does 
not  put  his  money  out  at  interest,  when  he  can,  at  5  or  6  per  cent,  by  buying 
on  the  exchange  bonds  on  farms,  shares  in  the  India  Company,  and  Canadian 
bonds:  c/.  Pothier,  94;  Pertile,  IV,  610. 

*  There  were  still  so  many  adherents  to  this  rule  that  it  was  not  necessary 
to  seek  an  excuse  for  allowing  lending  at  interest  in  the  idea  of  a  fiscal  monop- 
oly or  a  right  to  have  oneself  paid  (Champeaux,  loc.  cit.).  This  is  the  reason 
why  this  rule  was  upheld  during  the  monarchic  period.  The  Memorial  of 
Turgot,  which  was  the  decisive  manifesto  on  this  question,  only  goes  back  to 
1767. 

'  From  the  sixteenth  century  on:  Dumoidin,  "Tr.  Usur.,"  Calvin,  in  a 
letter  to  CEcolampade,  maintained  that  the  Scriptures  only  condemn  exces- 
sive usury  which  oppresses  the  poor,  and  not  interest  demanded  from  the 
wealthy  man  who  realized  great  profits  by  means  of  the  money  that  had  been 
lent  him.  Following  them:  Saumaise,  1637;  Montesquieu,  "Esp.  des  Lois," 
22,  19;  Voltaire,  see  "Diet.  Phil.";  Turgot,  1767;  Bentham,  1787.  The  Re- 
formation did  not  affect  this  evolution;  Luther  and  Zwingle  condemned 
lending  at  interest.     Cf.,  however,  Ashley,  XL  540,  545  (England). 

«  Law  of  the  5th  Therm.,  year  IV;  Civil  Code,  1907. 

525 


§  387]  OBLIGATIONS  [Chap.  Ill 

system  of  computation.^  The  attitude  of  the  Church  in  the  face 
of  this  legislation  has  been  rather  embarrassing;  it  has  refused  to 
declare  that  interest  was  lawful  in  itself;  but  it  has  recommended 
that  the  ecclesiastical  authorities  should  not  concern  themselves 
with  lenders  who  acted  in  conformity  with  the  laws,  "Quousque 
S^  Sedes  definitivam  sententiam  emiserit."  We  are  still  waiting 
for  this  pronouncement.^ 

§  388.  Establishment  of  Rents.  —  (A)  Origin.  According  to 
the  current  opinion,  rents  ^  were  devised  with  the  object  of  evad- 
ing the  prohibition  of  lending  at  interest.  This  is  not  so  at  all; 
they  have  an  entirely  different  origin;  the  only  thing  which  is 
true  is  that  they  did  serve  to  attain  this  object  after  having  been 
turned  aside  from  their  original  object.  They  began  by  being  a 
means  of  developing  lands  and  not  at  all  as  a  transaction  of  credit. 
Lands  were  granted  charged  with  rent  or  a  portion  of  the  products. 
Quit-rent  and  rent  are  synonymous  in  the  old  language.  But  the 
rent  was  distinguished  from  the  quit-rent  by  losing  all  of  its 
feudal  character;  it  was  termed  merely  rent  by  contrast  with  the 
seigniorial  rent  or  quit-rent;  it  was  applied  at  the  decline  of 
feudalism  to  those  possessions  which  had  preserved  the  stamp  of 
feudalism  the  least  of  all,  —  for  example,  to  houses  in  towns;  ^  it 
represented  in  the  case  of  feudal  possessions  the  part  of  the  in- 
come which  corresponded  to  improvements,  to  the  superior  value, 
and  was  superimposed  upon  the  quit-rent,  which  represented  the 
income  of  the  land  itself.  Thus  it  acquired  an  independent  exist- 
ence.   jNIodeled  in  the  beginning  upon  the  juridical  type  of  quit- 

*  Switzerland:  after  the  sixteenth  century,  a  limited  freedom:  Huber,  IV, 
868.     Police  Ordinances  in  Germany,  1577,  1600  and  1654. 

'^  The  modern  canonists  admit  that  there  are  extrinsic  circumstances  or 
rights  that  can  make  interest  lawful:  1st.  The  lender  sustains  some  damage 
("damnum  emergens")-  2d.  He  deprives  himself  of  some  profit  ("lucrum 
cessans"),  at  least  if  the  profit  is  morally  certain;  what  if  it  is  probable? 
P.  de  Castro,  "Cons.,"  II,  55,  3.  3d.  If  the  capital  invested  runs  risks  ("pericu- 
lum  sortis"),  the  interest  represents  an  insurance  premium;  if  it  is  a  matter 
of  exceptional  risks,  —  for  example,  by  reason  of  the  circumstances  in  which 
the  debtor's  fortune  happens  to  be.  4th.  "Titulus  legis  civilis,"  the  law  au- 
thorizes it;  tliis  is  a  right  which  it  is  difficult  to  justify  (general  interest? 
Does  this  assume  the  existence  of  the  other  rights?) :  Ashley,  II,  535. 

'  "Renda,"  "rendita"  (ninth  century),  "redditus,"  meaning  revenue. 
Du  Cange  "Arr6rages"  expresses  the  same  idea  with  this  difference,  that  he 
assumes  the  rent  to  have  fallen  due  and  the  debtor  to  be  in  arrears,  "arriere." 
Godefroy,  see  "Arri6rage";  Ragiieaii,  ibid.  However,  the  rent  is  contrasted 
with  the  arrears;  it  then  becomes  lawful  to  demand  the  arrears  (to  jield  a 
rent,  to  draw  one's  rent):  Pothier,  "Personnes,"  no.  260. 

*  Lords'  rent  on  houses:  Beaumanoir,  24,  19,  20;  "Gr.  Gout.,"  315  et  seq., 
833.  Rent  on  the  revenues  of  the  State,  upon  the  Hotel  de  Ville,  Loysel,  517; 
Larroque-Timbaud,  39  et  seq. 

526 


Topic  6]  SOME   PARTICULAR   KINDS   OF   COXTIL\CTS  [§  389 

rent,  of  which  it  was  merely  a  variant,  it  departed  more  and  more 
from  its  original  form,  and  approached  the  type  of  a  loan  at 
interest. 

§  389.  The  Same.  —  (B)  Rent-charge}  It  will  be  sufficient  for 
us  to  recall  the  fact  that  by  this  is  understood  a  rent  established 
by  means  of  the  alienation  of  an  estate.  The  grantor  retains 
over  the  land  a  real  right,-  which  is  immovable  and  cannot 
be  repurchased;^  the  grantee  becomes  the  owner,  subject  to  this 
charge,^  with  power  to  escape  therefrom  by  giving  up  the  land, 

*  Pothier,  "Tr.  du  Bail  h  Rente,"  IV,  ed.  Bug.;  Felix  and  Henrion,  "Tr.  des 
Rentes  fonc,"  1829.  —  English  law:  rent  service  as  contrasted  with  the  rent 
charge  and  the  rent  seek  ("redditus  sicus")  which  Pollock  and  Maitland 
designate  by  a  generic  name:  non-tenurial  rent  (II,  128).  Cf.  Rent  of  a  room: 
Bracton,  fo.  2036. 

2  Indivisibility  of  the  quit-rent  and  of  constituted  rents  or  rent  on  land: 
Desmares,  276;  "Cout.  Not.,"  165;  "Gr.  Gout.,"  p.  354;  "L.  d.  Dr.,"  789. 

^  Except  there  be  an  agreement  to  the  contrary,  whereas  constituted  rents, 
at  least  in  the  later  stages  of  the  law,  are  essentially  capable  of  being  bought 
back.  To  buy  back  a  rent  on  land  is  to  dispossess  the  creditor.  However, 
the  papal  bulls  have  sometimes  authorized  this  buying  back,  and  the  royal 
ordinances  have  also  allowed  it  as  an  exception  for  reasons  of  public  utility 
which  we  shall  set  forth,  but  also  because  the  buying  back  often  appeared  as 
nothing  more  than  the  reimbursement  of  a  claim,  —  even  when  it  was  a  matter 
of  a  rent  on  land.  The  Ordinance  of  1441,  Art.  18,  declares  that  the  rents  on 
houses  in  Paris  can  be  bought  back  at  the  rate  of  8|  per  cent,  because  the 
o\\Tiers  of  houses  charged  with  excessive  rents  allow  them  to  go  to  ruin.  The 
Edict  of  AIay,_1553  (other  towTis);  "Paris,  N.  G.,"  12  "Orleans,"  270;  Glasson, 
VII,  323.  It  is  upon  this  occasion  that  the  Declaration  of  May,  1609,  intend- 
ing to  allow  the  debtor  to  take  advantage  of  the  lowering  of  the  rate  of  interest 
on  rents,  —  that  had  passed  from  one-twelfth  of  the  capital  or  85  per  cent, 
in  1576,  to  one-sixteenth  of  the  capital,  or  6J<4  per  cent,  in  1601,  —  decided 
that  the  debtor  could  on  his  own  authority  subrogate  to  the  rights  of  his 
creditor  the  lender  from  whom  he  borrowed  the  necessary  sum  for  the  buying 
back;  the  creditor  who  had  his  money  invested  at  more  than  8  per  cent  would 
not  have  consented,  because  he  could  not  invest  it  at  more  than  6J^  per  cent, 
and  the  lender  would  require  guarantees:  Regulating  Order  of  the  Parliament 
of  Paris,  July  6,  1690;  Pothier,  no.  23.  Glasson,  VII,  325,  cites  the  Ordinances 
of  Apr.,  1393,  Oct.,  1409,  July,  1410,  1443,  May  27,  1424,  July  31,  1428. 
Isambert,  Table,  see  "Rentes";  Ashley,  II,  475  (bujang  back  in  Germany). 

*  In  default  of  payment  of  the  quit-rent  or  the  rent,  the  old  procedure  ac- 
cords with  the  primitive  conception  of  our  institution;  the  creditor  has  the 
rights  of  an  owner,  whereas  in  the  case  of  constituted  rents,  according  to 
the  opinion  of  Dumoulin,  he  descends  to  the  rank  of  an  ordinary  creditor.  Cf. 
post,  "Execution."  —  Distraint  or  seizure  of  the  possessions  that  furnished 
the  house,  and,  consequently,  an  obligation  to  furnish  it  ("Gout.  Not.,"  3,  36, 
81,  187;  "Pari,  aux  Bourg.,"  p.  137);  execution  on  the  standing  crops  upon 
land.  Fine,  e.xcept  in  the  city  and  outskirts  of  Paris.  If  the  house  is  empty 
and  abandoned  or  in  ruins,  the  seizure  is  publicly  announced:  "Gout.  Not.," 
169,  179,31, etc.;  "Gr.  Gout.,"  pp.  316, 277,  199,  544e<sc7.;  "Gonst.  duGhat.," 
62  et  seq.;  "Paris,  N.  G.,"  86:  right  to  three  years  of  arrears  for  the  quit-rent 
(the  same  for  rents,  "Ord."  of  1563;  Loyscl,  524);  163:  in  the  case  of  rents  only 
three-fourths  can  be  pledged,  for  the  old  delay  of  a  year  and  a  day  here  main- 
tained makes  one  lose  the  right  of  seizure.  Difficulties  in  the  frequent  cases 
when  there  are  several  successive  quit-rents  or  rents:  Beauynanoir,  24,  20; 
"Gr.  Gout.,"  315  et  seq.;  "Gout.  Not.,"  117,  151;  "A.  G.,  Anjou,"  II,  419; 
Buche,  "N.  R.  H.,"  1884,  76.  —  English  law:  the  rent  seek,  a  variety  of  the 

527 


§  389]  OBLIGATIONS  [Chap.  Ill 

for  he  has  only  held  "propter  rem";^  conversely,  after-pur- 
chasers by  private  right  were  subjected,  as  were  universal  heirs, 
to  the  payment  of  the  rent;  the  real  right  of  the  holder  of  the  rent 
could,  in  fact,  be  set  up  against  every  person  who  occupied  the  land. 
The  upholding  of  rent-charges  with  these  consequences  was  in- 
compatible with  the  system  of  the  liberation  of  lands  which  was 
inaugurated  by  the  Revolution;  generalizing  a  provision  that 
royalty  must  have  been  given  its  land  as  an  exception  (rents  over 
houses  in  Paris  and  other  towns),  the  Law  of  August  11,  1789, 
declared  that  they  were  capable  of  being  repurchased.^  To-day 
the  seller  of  a  piece  of  land  in  consideration  of  a  rent  has  only  a 
personal  right,^  which  is  a  movable  and  can  be  repurchased;  to 
make  up  for  this,  the  purchaser  who  is  held  personally  liable  has 
been  deprived  of  the  power  of  giving  up  the  land.  Civil  Code,  530. 
§  390.  The  Same.  —  (C)  Constituted  rents.  Instead  of  land, 
one  person  may  grant  to  another  a  sum  of  money,  a  capital,  charged 
with  the  payment  back  to  him  of  a  perpetual  or  life  rent;  the  rent 
which  is  thus  established  is  called  constituted  perpetually  or  for  life. 
This  operation  is  only  a  variation  of  lending  at  interest;  it  differs 
in  that  the  capital  cannot  be  demanded  back;  it  depends  upon  the 
debtor  to  pay  it  back,  but  he  can  choose  his  own  time;  the  creditor 
cannot  compel  him  to  free  himself;  if  he  needs  his  capital  he  has  no 
other  resource  excepting  to  transfer  his  rent  for  a  money  consider- 
ation to  a  third  party,  assuming  that  there  should  be  third  parties 
disposed  to  buy  it.  At  first  blush  it  seems  as  though  there  were 
no  reason  for  not  treating  this  act  just  like  the  ordinary  case  of 
lending  at  interest,  because  the  differences  which  we  have  just  set 
forth  had  nothing  essential  in  them.  But  hypothetical  forms  are 
met  with  where  the  constituted  rent  would  merge  with  the  rent- 
charge,  and  the  latter  because  of  its  origin  was  radically  differ- 
ent from  lending  at  interest."*  Hence  these  hypothetical  cases, 
being  favorable,  and  the  only  ones  which  were  known  in  the  old 

constituted  rent,  does  not  allow  seizure  to  be  made  use  of  (Bradon,  fo.  203  b) ; 
the  rent  charge  does  allow  it. 

1  Excepting  if  there  be  an  agreement  to  the  contrary  (a  clause  to  furnish 
and  to  plead):  "Cout.  Not.,"  95,  96,  97,  171,  70;  Desmares,  183;  "Gr.  Cout.," 
317.  The  giving  up  consisted  in  the  abandonment  at  law  of  the  ownership 
(and  not  onlv  of  the  possession);  the  acquirer  himself  was  allowed  to  do  this: 
Loysel,  520-366;  Fleimj,  "Inst.,"  II,  50. 

2  Cf.  Law  of  May  14,  1790,  7;  of  Dec.  18,  1790,  2;  of  Oct.  16,  1791;  "Code 
Civil  intermed.,"  Table,  see  "Rentes";  Sagnac,  107,  147,  336  et  seq. 

^  In  addition,  it  is  true,  to  a  privilege  and  an  action  for  cancellation. 
*  The  lessor  of  a  copyhold  could  receive  and  did  receive  most  of  the  time 
a  portion  of  the  issues  of  the  land  granted. 

528 


Topic  6]  SOME   PARTICULAR   KINDS   OF   CONTRACTS  [§  390 

times,  they  induced  the  canonists  to  declare  the  constituted  rent 
lawful.^  There  is  very  Uttle  difference,  for  example,  between  the 
ease  where  one  sells  a  piece  of  land  charged  with  a  rent  and  the 
case  where  one  buys  this  piece  of  land  in  consideration  of  a  price 
paid  to  the  vendor,  after  which  the  land  is  restored  to  him  charged 
with  a  rent.  The  canonists,  looking  at  it  from  this  point  of  view, 
could  hardly  make  any  distinction  between  rent-charges  and  con- 
stituted rents:  the  former  were  reserved  at  the  moment  of  the 
grant,  "  census  reservativus  " ;  the  latter  were  created  or  charged 
on  land  which  belonged  to  the  debtor;  "  census  constitutivus," 
"consignativus " ;  in  both  cases  the  creditor  had  a  real  immovable 
right.  In  order  to  make  the  analogy  complete,  the  canon  law  re- 
quired that  the  transaction  should  affect  a  "  res  "  which  produced 
profits.^  As  the  two  transactions  which  we  have  just  been  speaking 
of  were  not  always  so  closely  allied  as  we  have  assiuned,  the  canon- 
ists, io  order  to  avoid  stigmatizing  the  constituted  rent  as  usury, 
declassijfied  it,  so  to  speak,  and  made  of  it  a  sale.  According  to 
them,  the  debtor  sold  the  right  to  collect  the  income;  the  creditor 
bought  this  right  and  paid  for  it  out  of  his  capital.^  Thus  the 
rent  appeared  like  a  legal  being  distinct  from  the  income  and 
producing  returns  in  the  same  way  as  a  piece  of  land,  "lasting 
forever."  When  the  debtor  paid  back  the  capital  which  he  had 
received,  it  was  said  that  he  "repurchased"  the  rent."^  Finally, 
by  means  of  this  artificial  analysis  they  succeeded  in  giving  the 
reason  for  the  fact  that  the  capital  could  not  be  demanded;  to 
demand  the  capital  would  have  been  to  compel  a  vendor  to  buy 
back  the  object  which  he  had  sold.  There  is  no  need  to  observe 
that  the  fact  of  not  being  able  to  demand  the  capital  was  due  to 
entirely  different  reasons;  it  is  to  be  accounted  for  by  the  original 
relationship  which  existed  between  the  constituted  rent  and  the 

1  Innocently  (1243),  Commentary  on  Decretals  "adc.  in  civit.,t.deusuri3"; 
discussion  until  the  Bulls  "Regimini,"  of  Martin  V,  1200,  and  of  Calixtus  III, 
1455  ("Extravag.,"  3,  5,  under  the  title  "de  emtione").  Cf.  also  the  Bull 
of  Pius  V,  1568. 

*  The  arrears  of  the  rent  had  to  be  in  proportion  to  the  revenue  of  the  land 
or  the  house  charged  with  their  payment;  if  the  latter  diminished  in  value 
or  became  of  no  value  at  all,  the  rent  did  the  same. 

*  A  theory  already  pointed  out  in  the  Compendiums  of  the  sixteenth 
century. 

*  According  to  Pothier,  the  buying  back  is  a  right  of  the  debtor's  that  can- 
not be  lost  by  prescription,  and  which  cannot  be  affected  by  any  clauses  in 
the  contract.  However,  it  is  not  allowed  in  cases  of  a  life  rent.  And  no 
doubt  in  the  old  canonic  doctrine  the  perpetual  rent,  which  was  likened  to 
the  rent  on  land,  could  not  be  bought  back  excepting  if  there  had  been  a 
special  agreement  to  that  effect:  Loysel,  511  and  the  note  (Bull  of  1568).  Cf. 
Ashley,  II,  473;  Pasquier,  "Inst.,"  p.  559. 

529 


§  390]  OBLIGATIONS  [Chap.  Ill 

rent-charge;  grants  charged  with  a  quit-rent  or  a  rent  were  per- 
petual and  irrevocable  as  a  consequence  of  the  social  and  economic 
conditions  of  the  later  Middle  Ages.^ 

Constituted  rents  offered  approximately  the  same  advantages 
that  lending  at  interest  did;  the  forbidding  of  the  latter  made  the 
former  more  numerous.  And  when  they  had  once  come  into  cur- 
rent practice,  debtors  were  no  longer  seen  to  give  as  a  guarantee 
of  the  pajTnent  of  the  rent  a  charge  on  a  stipulated  piece  of 
land,  but  a  general  obligation  over  all  other  possessions.  The 
analogy  with  the  rent-charge  thus  ceased  to  exist.  It  was  asked 
whether  the  law  ought  to  sanction  a  security,  or  even  a  per- 
sonal obligation  of  the  debtor,  which  at  a  given  time  also  allowed 
one  to  proceed  against  all  his  possessions,  even  when  there  was 
no  mortgage.  Dumoulin  became  a  partisan  of  the  validity  of 
personal  rents,^  which  were  unknown  in  the  old  law;  and  his  opin- 
ion, which  was  advanced  in  1545,  was  sanctioned  some  year§  later 
by  an  order  of  the  Parliament  of  Paris  of  the  10th  of  May,  1557.' 
He  found  a  powerful  argument  in  the  analysis  of  the  rent  which 
was  put  forth  by  the  theologians;  the  charge  affecting  a  speci- 
fied piece  of  land  only  seemed  like  a  guarantee  of  payment;  if  it 
were  lacking,  the  transaction  still  existed;  thus  it  was  nothing 

^  Consequences:  (a)  The  rents  were  divided  up  according  to  the  law  of 
the  locality  where  the  immovable  was  situated,  and  not  according  to  that  of 
the  domicile  of  the  debtor.  (6)  They  were  indivisible,  just  like  the  quit-rent, 
and  the  adjudication  of  the  land  by  decree  did  not  clear  them  off  as  though  it 
had  been  a  case  of  a  mortgage  where  the  beneficiarv  had  neglected  to  offer  any 
opposition:  Desmares,  220;  "Cout.  Not.,"  43;  "Paris,  A.  C,"  70,  71;  "N.  C," 
99,  101.  (c)  An  assignment  meant  the  alienation  of  the  land  up  to  the  amount 
of  the  capital  required  for  the  payment  of  the  rent ;  the  creditor  thus  acquired 
a  splitting  of  the  ownership.  He  had  to  give  homage  and  fealty  for  fiefs 
to  obtain  the  seisin  in  the  case  of  common  tenures,  and  to  pay  the  transfer 
taxes:  Desmares,  189,  221;  Beaumanoir,  24,  20;  "Gr.CCout.,"  174,  265;  "A.  C, 
Anjou,"  vol.  2,  pp.  238, 417,  547;  "Paris,  N.  C,"  82.  In  the  pledge-giving  coun- 
tries the  acquiring  of  this  rent  assumes  that  the  formalities  of  vesting  and  divest- 
ing had  been  carried  out;  elsewhere  it  was  sufficient  if  the  arrears  were  paid 
(c/.  recognitory  rent) :  "Anjou,"  291;  ikferZw,  see  "Assiettede  Rente."  (d)  The 
giving  up  of  the  land  freed  it  from  the  rent  in  the  same  way  as  its  loss  would 
have  done:  Argou,  IV,  15. 

2  Balde,  "ad  1.  un.  C.  de  his  q.  poense  nom.,"  admitted  of  personal  rents 
"inter  bonos"  and  in  conformity  with  the  local  custom  (but  contra,  "si  de 
feudo  vasalli,"  n.  7).  Jean  Faure  maintained  that  assignment  did  not 
necessarilv  imply  alienation  ("Inst,  de  act.,"  §  "item  serv.";  "de  assign, 
libert.";  ^'Code  de  don.";  "ad  1.  si  quis  arg.").  Some  of  the  casuists  allowed 
personal  rents  when  they  were  constituted  by  a  trader  or  an  artisan,  for 
they  then  sold  a  portion  of  their  profits:  Dwnoulin,  "De  Us.,"  22.  C/.  on 
"Paris,"  84,  85;  Loyseau,  op.  cit.  But  "  Navarre,"  "De  Usur.,"  q.  15,  n.  115; 
Tiraqueau,  "De  Retr.,"  1,  6,  15,  condemned  general  rents,  rents  that  can  be 
bought  back,  and  rents  that  may  be  easily  removed;  to  the  same  effect,  a 
Bull  of  Pius  V,  in  1568. 

3  Apropos  of  the  lords'  due  and  sales:  "Paris,  A.  C,"  58,  "N.  C,"  83. 

530 


Topic  6]  SOME    PARTICULAR   KINDS   OF   CONTR.\CTS  [§  392 

more  than  an  ordinary  mortgage,  an  accessory  of  the  debt,  and 
not  an  essential  part  of  the  transaction.  This  opinion,  which  pre- 
vailed ^  because  it  was  more  in  harmony  with  the  economic  needs 
of  this  time,  should  have  caused  constituted  rents  to  be  classified 
among  movables;  as  a  matter  of  fact,  they  were  only  credits  af- 
fecting certain  sums  of  money .^  But  tradition  was  stronger  than 
logic;  they  continued  to  be  placed  among  immovables  under  pre- 
text that  the  rent  formed  a  legal  being,  which  was  distinct  from 
the  income,  and  because  of  the  more  serious  motive  that  it  had  too 
much  value  not  to  be  subject  to  the  protecting  rules  of  invest- 
ments in  immovables  in  the  interests  of  families.  The  Revolu- 
tionary law  proceeded  to  the  natural  consequences  of  the  opinion, 
of  Dumoulin:  at  first  these  rents  were  practically  converted  into 
movables,  as  they  could  no  longer  be  mortgaged,  and  later 
on  they  were  converted  into  movables  by  means  of  a  formal 
enactment.^ 

§  391.  The  Same.  —  (D)  Life  rents.  This  species  of  consti- 
tuted rents  ^  was  first  of  all  seen  under  the  form  of  a  charge  (con- 
tracted, for  example,  by  a  monastery)  of  lodging  and  supporting 
until  the  end  of  his  days  the  person  who  granted  a  domain  or  land 
{cf.  infra,  "lease  for  support"). 

§  392.   Assignment     of     Claims.  —  (A)     Early    inalienability.'' 

'  Consequences:  the  assignment  is  only  a  mortgage;  no  lords'  due  and 
sales  taxes  have  to  be  paid  for  the  constitution  of  rents;  the  loss  of  the 
land  leaves  the  rent  still  in  existence;  sale  by  decree  clears  off  perpetual 
rents  (and  not  life  rents):  Desmares,  223,  272;  "Cout.  Not.,"  122,  130; 
the  rent  is  called  movable  in  some  of  the  Customs  ("Blois,"  157;  "Reims," 
181,  etc.)  and  in  the  countries  of  written  law:  Ferribre.see  "Rente";  however, 
as  a  general  thing,  it  is  held  to  be  an  immovable:  Ordinance  of  1747,  1,  3. 
The  complaint  is  no  longer  admitted  excepting  in  cases  of  rents  on  land: 
Lauriere,  on  "Paris,"  96  (contra,  Desmares,  38);  Loysel,  507-518. 

2  The  Ordinances,  at  least  those  since  the  sixteenth  century,  fix  a  maximum 
rate  of  interest  beyond  which  the  rent  cannot  go  without  being  tainted 
with  usury.  This  rate  of  interest  has  varied;  it  was  10  per  cent  according  to 
the  "Extrav.,"  "Regimini";  SVa  per  cent  in  1567;  6V4  per  cent  in  1601;  5% 
per  cent  in  1634;  5  per  cent  in  1665,  and  especially  according  to  the  Edict  of 
June,  1725.  Isambert,  Table,  see  "Rentes."  The  Ordinance  of  May  3, 
1350,  etc.  Prescription  of  arrears  in  five  years:  Ordinance  of  June,  1510,  71; 
January,  1629,  142;  Decree  of  August  20,  1792;  August  24,  1793,  151:  Loysel, 
608-513;  Legouix,  "D^chdance  quinquennale,"  1901;  Lair,  "Int6r6ts,*'  1860. 

8  Law  of  Dec.  18,  1790;  Law  of  11  Brum.,  year  VII,  9;  22  Frim.,  year  VII,  7. 

*  P.  de  Fontaines,  p.  131;  Beaumanoir,  50,  13. 

^  The  intransmissibility  of  claims  persisted  in  the  English  common  law 
until  1873;  up  to  that  time  the  creditor  who  wished  to  assign  his  right  could 
only  do  so,  just  as  in  the  Roman  law,  by  means  of  agency;  the  assignee,  or, 
rather,  the  attorney  acted  in  the  name  of  the  assignor;  the  agency  came  to 
an  end  upon  the  death  of  either  one  of  the  parties.  There  was  an  excep- 
tion made  in  favor  of  the  king.  The  courts  of  equity,  on  the  other  hand, 
admitted  the  validity  of  this  assignment. 

531 


§  392]  OBLIGATIONS  [Chap.  Ill 

Neither  claims  arising  "ex  delicto"  nor  claims  arising  "ex  con- 
tractu" could,  in  early  times,  be  granted  to  a  third  party;  by 
what  right,  in  fact,  could  the  latter  have  prosecuted  the  debtor? 
He  had  been  the  victim  of  no  injury  on  the  part  of  the  latter,  and 
he  had  received  from  him  no  engagement  whatsoever  (for  ex- 
ample, no  oath).  Just  as  to-day  the  changing  of  a  debtor  without 
the  consent  of  the  creditor  cannot  be  conceived  of,  so  in  olden 
times  they  could  not  understand  the  substitution  of  one  creditor 
for  another.  They  had  also  in  mind  the  fact  that  the  harsh 
means  of  coercion  with  which  creditors  were  armed — physical 
constraint,  for  example  —  could  be  used  in  very  diverse  ways, 
according  to  the  mood  of  the  persons  who  had  a  right  to  make 
use  of  them;  the  creditor  that  one  had  chosen  oneself,  a  relative 
or  a  friend,  would,  as  they  knew,  employ  a  great  deal  of  care  in 
making  use  of  them,  whereas  a  stranger  might  very  likely  show 
himself  to  be  pitiless  and  inhuman.  Even  to-day,  although  the 
transfer  of  claims  is  in  common  use,  it  is  not  a  matter  of  indiffer- 
ence as  far  as  the  debtor  is  concerned  to  have  such  and  such  a 
man  for  his  creditor. 

§  393.  The  Same.  —  (B)  Indirect  means,  however,  of  arriving 
at  results  which  were  rather  similar  to  those  following  an  assign- 
ment, were  open  to  the  parties.  —  1st.  Novation  by  changing 
creditors;  ^  this  assumed  a  new  undertaking  on  the  part  of  the 
debtor  towards  the  third  party  who  took  the  place  of  the  original 
creditor;  consequently,  it  was  dependent  upon  the  will  of  the 
debtor. — 2d.  The  order  "ad  litem";  ^  when  representation  at 
law  was  admitted  the  creditor  could  give  an  order  to  a  third  party 
to  reclaim  the  payment  of  the  debt,  and,  if  necessary,  to  arraign 
the  debtor  before  the  courts;  the  agent  had  only  to  keep  intact 
the  amount  of  the  claim;  but  this  method  of  assignment  was  very 
imperfect,  because,  if  the  agent  should  die  before  having  been 
paid,  his  powers  did  not  pass  to  his  heirs;  none  the  less,  it  remained 
in  force  in  England  until  1873.  —  3d.  The  simultaneous  under- 
taking of  the  debtor  towards  the  creditor  and  towards  a  third  party;  ^ 
the  latter  by  virtue  of  his  designation  has  the  right  of  demanding 
payment  without  showing  himself  entitled  to  a  right  to  the  claim. 

1  "Blume  des  Sachsensp.,"  II,  2,  98;  Boutaric,  I,  26. 

2  English  law  and  German  law,  "Stat,  de  Goslar,"  70,  8-10,  etc.  In  Ger- 
many the  assignor  adds  to  the  power  of  attorney  a  renunciation  to  his  own 
rights  of  action.  Cf.  in  Rome,  "procur.  in  rem  suam."  —  "L.  Anastasiana," 
Goldschmidt,  p.  311. 

3  C/.  in  the  Roman  law  the  "adstipulator,"  the  "adjectivus  solutionis 
gratia." 

532 


Topic  6]  SOME   PARTICULAR   KINDS  OF  CONTRACTS  [§  394 

As  long  as  representation  at  law  was  not  admitted,  this  was  only 
done  in  an  imperfect  manner;  there  was  in  this  a  convenient  ex- 
pedient by  which  the  same  object  might  be  obtained.  From  the 
Prankish  period  we  see  the  creditor  making  the  debtor  promise 
him  that  he  will  pay  the  creditor  in  the  hands  of  a  third  party 
(designated  beforehand  or  whom  he  has  reserved  the  power  of 
designating  afterwards).  These  clauses,  while  they  developed 
in  the  interests  of  commerce,  gave  rise  to  bills  to  order  and  to 
bearer. 

§  394.  The  Sapine.  —  (C)  Assignment.  Transfer.  When  form- 
alism disappeared  and  the  means  of  carrying  out  execution  against 
the  debtor  became  less  harsh,  the  assignment  of  claims  could  be 
made  in  a  direct  manner;  ^  the  creditor  transferred  his  right  to  the 
assignee.^  According  to  the  Custom  of  Paris  of  1510,  Art.  170, 
**  A  mere  transfer  does  not  give  seisin,"  which  means  that  the 
transfer,  according  to  the  Custom  of  1580,  Art.  108,  must  be 
notified  to  the  debtor  or  accepted  by  him.  Up  to  that  time  the 
debtor  is  released  by  paying  the  transferror,  the  creditor  of  the 
transferror  can  have  himself  paid  out  of  the  claim  which  has  been 
transferred,  and,  finally,  between  two  successive  assignees,  the 
one  who  has  first  notified  the  creditor  has  preference  over  the 
other.  The  primitive  meaning  of  this  axiom  is  not  very  well  es- 
tablished;^ it  is  not  certain  that  the  old  texts  require  the  above 


^  In  France  transmissibility  is  not  admitted  of  by  certain  Customs ;  others 
accept  it  at  an  early  time.  As  to  the  former,  cf.,  Boutaric,  I,  26  (p.  146),  II 
(p.  54);  "Roisin,"  51,  56,  57.  —  On  the  other  hand,  this  assignment  appears 
after  the  thirteenth  century  in  P.  de  Fontaines,  15,  49;  "Ass.  de  Jer.,"  "C. 
des  Bourg.,"  212,  ed.  Kausler,  237;  Beaumanoir,  35,  19  {cf.  18);  Varin, 
"Arch.  Adm.  de  Reims,"  1,  2,  744,  1118;  Delisle,  "Jug.  de  I'Echiq.  de  Norm.," 
no.  267  (in  1249);  "L.  d.  Droiz,"  §  760;  "Summa  art.  not.,"  p.  27;  M&ry, 
"Hist,  du  Commerce  de  Marseille,"  1,  292  (in  1224). 

^  The  agency  clause  is  only  inserted  in  the  assignment  for  the  sake  of 
greater  precaution:  Varin,  "Arch,  adm.,"  I,  2,  p.  1097.  "Procuratio  in  rem 
suam"  borrowed  from  Italy.  Nevertheless,  the  assignee  is  not  treated  like 
a  legal  representative;  thus  he  has  no  need  of  letters  of  authority  in  order  to 
proceed  against  the  debtor;  Bartole,  c.  1,  "C.  J.  de  O.  et  A." 

'  Lojjsel,  365,  657;  "Saintonge,"  42.  Cf.  "Blois  "  263,  and  "N.  C,  Paris," 
108.  It  is  connected  with  the  L.  3  of  Gordien,  "Coa.  Just.,"  "de  nov.";  Ville- 
quez,  "R.  h.  Dr.,"  VIII,  466.  But  the  Romanists  look  upon  the  claim  as  being 
transmitted  by  the  assignment,  and  not  by  the  notification,  and  do  not  spe- 
cially concern  themselves  withit,  as  the  "  N.  C.,  Paris,"  108,  docs  with  the  notice 
requiring  the  production  of  a  copy  of  the  deed  of  conveyance;  Brunner, 
"N.  R.  H.,"  1886,  28,  1,  proposes  two  explanations:  (A)  The  seisin  of  the 
rents  only  takes  place  upon  the  attainment  of  the  arrears,  when  investiture 
no  longer  applies:  "A.  C,  Anjou,"  §  332.  This  rule  was  extended  to  claims. 
(B)  It  must  have  been  a  particular  application  of  the  rule:  "A  gift  is  invalid 
without  seisin,"  that  w;us  api)licd  first  of  all  to  rents  and  then  to  claims, 
Bourdot  de  Richeb.,  Ill,  175,  189  ("Mantes,"  4,  3,  90),  and  then  extended  under 

533 


§  394]  OBLIGATIONS  [Chap.  Ill 

meaning;  ^  but  it  was  too  useful  not  to  be  demanded  very  soon; 
in  fact,  thanks  to  this  maxim,  the  debtor  who  was  notified  of 
the  assignment  could  not  pay  off  his  debt  into  the  hands  of  the 
assignor  without  incurring  double  liability.  Thus,  against  third 
parties,  this  notification  became  the  equivalent  of  delivery  in 
the  case  of  corporeal  things.^ 

§  395.  The  Same.  —  (D)  Payment  with  subrogation  is  only  the 
Roman  privilege  of  the  assigiunent  of  actions  combined  with  the 
"successio  in  locum  creditoris"  as  far  as  mortgages  were  con- 
cerned.^ We  must  assume  that  a  third  party  pays  the  debt  of 
another  when  due;  he  is  allowed,  in  order  to  have  the  money  he 
advanced  paid  back  to  him,  to  make  use  of  the  rights  which  be- 
longed to  the  creditor,  whose  interest  has  ceased,  and  especially 
of  mortgages  given  in  his  favor,  according  to  the  rank  with 
which  they  were  invested.  For  this  purpose  he  requires  an  agree- 
ment, made  with  the  creditor  or  with  the  debtor,  which  will  be  the 
case  when  he  acts  in  the  interest  of  one  or  the  other,  or  else,  if  the 
third  party  acts  in  his  own  interest,  a  requisition  addressed  to  the 
creditor,  whether  the  latter  knows  it  or  not.  —  It  was  not  without 
difficulty  that  subrogation  based  on  an  agreement  with  the  debtor, 
and  carried  out  in  spite  of  the  creditor,  was  introduced  into  our 
law;  but  this  was  only  a  logical  consequence  of  the  institution. 
If  the  third  party  transmitted  the  money  to  the  debtor  and  the 
latter  paid  the  creditor,  then  the  creditor  had  no  reason  to  offer 
any  opposition  to  the  third  party  exercising  those  rights  for  which 
he  himself  had  no  further  use.  As  to  subrogation  upon  a  requisi- 
tion for  the  benefit  of  those  who  paid  what  they  owed  with  others 
or  for  others  (sureties,  joint  and  several  debtors,  etc.)  it  would 
have  been  logical  to  decide  that  this  type  of  subrogation  would 
take  place  as  matter  of  law;  because  the  creditor  could  not  offer 
any  refusal  in  opposition  to  the  demand  which  was  made  of  him, 

the  influence  of  Law  3,  supra,  and  of  the  necessity  of  a  notification  for  every 
assignment. 

1  Masuer,  31,  7.     Acceptance  by  the  assignee:  Lauriere,  on  "Paris,"  108. 

2  Bills  payable  on  presentation :  "Zf.  Handelsr.,"  22,  59;  "N.  R.  H.,"  1886, 
178;  Franken,  "Pfandr.,"  1,248;  "Avignon,"  50;  "Toulouse,"  "de  solut." 
The  handing  over  of  the  bill  ceased  to  be  absolutely  necessary  when  the  latter 
was  no  longer  looked  upon  as  anything  but  a  means  of  proof;  and  when  the 
"carta"  and  the  "notitia"  were  no  longer  distinguished,  instead  of  restoring 
its  effect  to  the  deed,  or  of  invalidating  it  by  a  mention  in  writing,  or  by  tear- 
ing it  up,  they  often  limited  themselves  to  the  delivery  of  a  receipt  to  the  debtor, 
—  a  thing  that  was  absolutely  abnormal  during  the  Frankish  period. 

'  Confusion:  cf.  Bartole,  on  I,  1,  D.,  "quse  res  pig.";  Negusantius,  "De 
pign.,"  5,  3,  45  (cited  by  Beaum.,  p.  159);  Favre,  "Def.,"  1,  2,  3;  Pothier, 
"Intr.,"  no.  66  et  seq. 

534 


Topic  6]  SOME   PARTICULAR   KINDS  OF   CONTRACTS  [§  396 

the  latter  being  nothing  but  an  idle  formality.  This  is  what 
Dumoulin  upholds  in  the  first  of  the  formal  lectures  which  he  gave 
at  Dole,  and  which  was  in  accord  with  the  precedent  of  the  "  suc- 
cessio  in  locum."  Here  the  jurists  were  not  in  accord  with  the 
courts.^  Though  in  that  period  it  does  not  seem  that  Dumoulin's 
opinion  prevailed,  the  framers  of  the  Civil  Code  very  properly 
sanctioned  it  (Art.  1251).^ 

§  396.  The  Same.  —  (E)  Bills  to  hearer  and  to  order.  This  class 
of  writings  contained  a  promise  to  pay  a  person  other  than  the 
creditor,  a  third  party  who  was  unknown  at  the  time  of  the  mak- 
ing of  the  bill,  and  who  would  be  determined  in  one  instance  by 
the  possession  of  the  latter,  —  clause  to  hearer,  —  in  another  in- 
stance by  a  writing  of  the  creditor  named  in  the  bill,  —  clause  to 
order.  In  the  hills  to  hearer  the  debtor  promises  to  pay:  1st.  Some- 
times to  the  creditor  or  the  bearer  ("vel  cui  hoc  scriptum  in  manu 
paruerit").  2d.  Sometimes  simply  to  the  bearer  ("ad  hominem 
apud  quem  hoc  scriptum  in  manu  paruerit").  The  first  of  these 
forms  is  met  with  in  Italian  records  of  the  ninth  century;  the  other 
is  only  found  about  a  hundred  years  later.  From  Italy  bills  pay- 
able to  bearer  passed  into  general  usage  in  other  countries.^  In 
France  they  are  to  be  found  in  the  thirteenth  century.'*  The  al- 
ternate clause  ("to  N.  or  to  bearer")  is  the  most  commonly  used.^ 

^  With  the  same  meaning  as  DumouUn  gives  it,  cf.  Serves,  "Inst.,"  Ill,  21; 
Orders  in  Maynard,  II,  49;  D' Olive,  IV,  31.  —  To  the  contrary,  Pothier, 
Renusson,  etc. 

^  Cf.  "personal subrogation"  and  "assignment  of  claims."  The  creditor  is 
free  to  convey  his  claim;  subrogation  is  imposed  upon  him.  The  assignee 
speculates;  the  man  subrogated  rather  does  a  service  or  carries  out  his  own 
business;  also,  when  he  pays  9  for  a  claim  of  10,  he  can  only  reclaim  9,  whereas 
an  assignee  would  have  the  right  to  10;  and  in  the  same  way  the  surety  can 
only  demand  from  his  fellow  sureties  their  share.  Subrogation  must  not  injure 
the  creditor;  it  is  imposed  upon  him  because  "sibi  non  nocet,  alteri  prodest 
(nemo  contra  se  subrogasse  censetur.")  The  man  subrogated  is  not  held 
bound  to  furnish  a  guaranty  as  the  assignor  is.  The  man  subrogated  does  not 
have  to  give  the  debtor  any  notice. 

3  Brunnner,  "Zf.  Handelsr.,"  XXII,  119,  505;  Pertile,  IV,  461  (testamentary 
executor). 

*  Alternative  clause:  Wamkoenig,  "Flanfr.  Rechtsg.,"  Ill,  2,  159  (Act 
of  1276);  Beaumanoir  35,  20;  "A.  C,  Artois,"  3,  34;  Mnzure,  "F.  de  Beam," 
p.  285;  "Gr.  Cout.,'*  p.  834,  etc.  Simple  clause:  "Cartul.  de  Fhnes,"  I, 
252  (no.  231),  in  1281;  /^Roisin,"  p.  303,  etc.;  Brunner,  "N.  R.  H.,"  1886,  36.— 
Bracton,  fo.  46  &  ("missibilia"). 

*  See  as  to  this  clause  the  detailed  analysis  in  the  texts:  "N.  R.  H.,"  1886, 
pp.  37-50,  139-148;  "F.  de  Beam,"  42,  110,  117;  cf.  od.  1715,  p.  29;  "A.  C., 
Artois,"  2,  8;  Boutaric,  I,  11  and  107:  "principal"  and  "command"  (which 
Brunner  reads  instead  of  "convent")  means  creditor  and  bearer  (notes  by 
Charondas);  "M6m.  Soc.  Antiq.  Norm.,"  18,  p.  64;  "Gr.  Cout.,"  p.  433; 
"Cout.  Not.,"  27;  Desmares,  171,  179,  164,  378,  255;  /.  Lecoq,  q.  4;  Masuer, 
"De  Solut.,"  15  (but  cf.  Bmnus,  "Decis.,"  pp.  580,  277,  ed.  1599);  Rebuffcr 
"Comment,  in  Const.,"  1599,  I,  39;  "Inst,  for.,"  I. 

535 


§  396]  OBLIGATIONS  [Chap.  Ill 

The  holder  of  a  bill  which  contains  this  clause  may  demand  the 
amount  without  being  compelled  to  show  whence  he  obtained  the 
bill,  and  without  having  to  prove  the  regularity  of  his  possession.^ 
Thenceforth  it  presents  the  great  advantage  of  allowing  the  cred- 
itor: 1st.  To  assign  his  claim  without  any  waiting,  and  without 
notice  to  the  debtor,  by  the  mere  handing  over  of  the  bill.  2d.  To 
have  himself  represented  by  the  bearer,  without  letters  of  authority, 
and  without  warrant  of  attorney;  it  is  true  that  the  bearer  may 
abuse  his  powers  by  transmitting  the  bill  to  a  third  party,  and  that 
this  cannot  be  undone,  for,  so  long  as  he  has  possession  of  the  bill, 
the  debtor  has  no  other  creditor  but  him.  However  different  his 
position  might  be  from  that  of  an  agent,  our  old  jurisconsults 
nevertheless  called  him  an  attorney  of  the  creditor's  with  the  ob- 
ject of  justifying  his  right  to  act  at  law^;  this  was  a  fiction  invented 
in  order  to  harmonize  the  old  practice  with  the  Roman  ideas.  At 
first  it  had  no  very  great  influence  upon  these  facts;  ^  but  at  the 
end  of  the  sixteenth  century  it  resulted  in  causing  bills  to  bearer 
to  be  treated  like  ordinary  bills  which  name  some  one,  and  re- 
covery upon  which  one  would  have  left  in  the  hands  of  an  agent; 
this  was  to  deprive  them  of  their  most  essential  advantages.  The 
need  which  practice  had  for  the  effects  of  a  rapid  circulation  led  to 
the  invention  of  notes  in  blank;  at  one  time  this  sort  of  bill  replaced 
bills  to  bearer  in  civil  and  commercial  usage;  but  the  courts  looked 
upon  them  as  dangerous  and  prohibited  them;  they  were  even 
proscribed,  with  bills  to  bearer,  by  an  Edict  of  1716,  which  was 
intended  to  reserve  the  privilege  of  the  clause  to  bearer  for  notes 
of  the  State  and  those  of  the  national  bank.  The  prohibition  did 
not  survive  this  famous  system;  at  least  in  1721  another  Edict 
authorized  bills  to  bearer. 

The  clause  to  order,^  which  is  of  no  less  importance  than  the 
clause  to  bearer,  is  connected,  as  is  the  latter,  with  very  old  for- 
mulae. From  the  seventh  century  deeds  contain  clauses  of  such  a 
tenor  as  this :  "  I  will  pay  to  N.  ...  or  to  him  '  cui  dederit  hanc 
cautionem  ad  exigendum'";  in  the  eighth  century  they  say:  "vel 
cui  in  manum  miseris";  in  the  old  Italian  deeds  of  the  twelfth 

1  The  conception  that  people  had  of  the  "carta"  and  of  the  role  it  played 
in  law  must  have  contributed  towards  this  result. 

*  However,  the  rule  that  agency  is  extinguished  by  the  death  of  the  agent 
was  applied  to  him:  Desmares,  164,  378;  Loysel,  377. 

3  "To  N.  or  his  order,"  a  formula  that  is  equivalent  to,  "To  the  order  of 
N.,"  for  N.  can  designate  himself:  Stobbe,  §  178.  Cf.  in  "  N.  R.  H.,"  1886, 169, 
the  comparison  between  the  agency  clause  and  the  clause  to  order  under 
their  various  forms:  Heusler,  §  48;  Debray,  "These." 

536 


Topic  6]  SOME   PARTICULAR   KINDS   OF   CONTRACTS  [§  396 

century:  "vel  cui  ordinaveris."  ^  The  French  formula  of  the 
thirteenth  century,  "to  N.  or  his  depositary,  or  his  messenger,"  in 
the  seventeenth  century  are  replaced  by  the  clause  to  order,  which 
comes  from  Italy  and  which  prevailed  everywhere.  The  bill  to 
order  served  the  same  purposes  as  the  bill  to  bearer;  but  the  latter 
could  circulate  through  several  hands,  whereas  the  bill  to  order 
"  only  admitted  of  one  transfer,  for  the  depositary  was  obliged  to 
prove  that  title  had  been  given  to  him  by  the  person  mentioned 
in  the  deed,"  and  this  was  ordinarily  done  by  the  presentation  of 
a  warrant  of  attorney.^  A  practice  of  Italian  origin,  indorsement,^ 
dispensed  with  the  production  of  a  special  warrant  of  attorney,  be- 
cause it  was  a  real  authority  written  on  the  back  of  the  bill.^  The 
innovation  consisted  less  in  this  mention  on  the  back  of  the  bill  — 
a  rather  widespread  custom,  at  least  since  the  fourteenth  century, 
in  very  diverse  cases,  and  one  which  passed  without  difficulty  to 
bills  to  order  ^  —  than  in  the  sanction  of  a  series  of  successive 
transfers  which  ensued  upon  it.^  Bills  to  order  thus  took  the 
place  of  bills  to  bearer,  which  had  been  forbidden,  and  became 
a  medium  of  circulation.     It  is  in  this  sense  that  the  assertion  of 


1  Bill  of  exchange  to  order,  c/.  Act  of  May  18,  1760  (Genoa):  "Monum.  h. 
pair.";  Chart.  2,  no.  882.  Bills  to  order  in  Marseilles,  1247-1248  {BLancard, 
op.  cit.).     Cf.  the  Neapolitan  Law  of  1607. 

2  Instead  of  "letter  of  attorney,"  it  would  be  better  to  say  "designation  of 
the  depositary";  the  only  thing  that  has  to  be  proved  by  the  depositary  (who 
is  actually  the  bearer)  is  that  he  was  designated  by  the  payee  "ad  exigendum," 
it  matters  little  for  what  reason  (gift,  assignment  for  a  consideration,  or  agency). 
Has  this  designation  the  effect  of  making  the  holder  an  attorney  or  an  as- 
signee of  the  payee?  It  is  very  unlikely,  because  the  old  law  knows  neither 
agency  nor  assignment.  Thus  we  are  reduced  to  the  necessity  of  saying  that 
the  holder  has  a  right  of  his  own  that  is  acquired  by  him  directly  by  virtue 
of  the  clause  to  order;  thus  he  is  not  the  assignee  of  the  payee;  he  does  not 
act  in  the  hitter's  name;  nor  can  he  be  met  by  defenses  available  against 
the  latter  (for  example,  payment,  Loysel,  704;  Boutaric,  I,  44):  "Olim," 
II,  p.  1362  (in  1318).  The  analogy  between  bills  to  order  and  bills  to  bearer 
militated  in  support  of  this  idea  in  the  past,  and  the  needs  of  commerce  kept 
its  practical  consequences  in  existence  afterwards,  at  least  up  to  a  certain 
point,  when  under  the  influence  of  the  Roman  ideas  in  the  holder  was  seen 
only  an  attorney  of  the  payee  (whether  in  "rem  suam"  or  in  the  interest  of 
the  latter). 

3  A  French  origin  is  ordinarily  attributed  to  it:  "N.  R.  11.,"  1886,  174 
(bibl.).     But  cf.  Goldschmidt,  451;  Debray,  47. 

*  The  order  is  also  ])lacod  at  the  bottom  of  the  bill  of  exchange  in  the  same 
way  as  a  signature  guaranteeing  payment. 

*  "Gr.  Cout.,"  265;  Du  Cange,  see  "Indorsare";  Boutaric,  I,  49.  Cf. 
"Cod.  Just.,"  8,  43,  14;  Damhouder,  "Praxis  rerum  civil.,"  c.  89  (indorsement 
of  every  substitution  of  an  agent).  A  custom  of  indorsing  bills  of  exchange 
was  first  of  all  established  in  order  to  confer  the  power  of  attorney.  Ordinance 
of  1673  which  contrasts  indorsement  (giving  of  power  of  attorney)  with  the 
order  (assignment). 

6  Cf.  Debray,  47. 

537 


§  396]  OBLIGATIONS  [Chap.  Ill 

Scavary  that  there  was  no  indorsement  upon  bills  of  exchange 
before  1020  is  accurate.^ 

§  397.  The  Same.  —  (F)  Bills  of  Exchange.  The  merchant 
who  goes  to  a  fair  or  to  a  distant  place  of  business  has  need 
of  foreign  money;  he  can  procure  it  upon  his  departure  or 
upon  his  arrival  by  exchanging  his  specie  for  other  specie 
{manual  exchange,  transmitted  from  hand  to  hand).  But  the 
transporting  of  money,  especially  in  the  ]\Iiddle  Ages,  was  trou- 
blesome, and  not  very  safe;  it  was  better  to  apply  to  a  mer- 
chant or  banker  who  had  a  correspondent  (associate,  etc.)  ^  in 
the  place  where  one  was  going;  by  paying  value  to  him  one  ob- 
tained from  him  the  promise  that  he  would  cause  the  necessary 
amounts  to  be  furnished  by  his  correspondent  {exchange  drawn, 
exchange  of  specie  with  transfer  to  another  locality;  transfer  from 
place  to  place)  .^  A  writing,  "  instrumentum  ex  causa  cambii" 
was  ordinarily  drawn  up  to  furnish  proof  of  the  transaction,  as 
in  the  case  of  every  other  deed.  But  it  had  no  special  effects,  and 
it  is  not  from  this  source  that  the  bill  of  exchange  came;  we  may 
merely  note  the  fact  that  it  habitually  contained  the  clause  to 
order;  the  correspondent  must  pay  to  the  man  who  gave  value 
"vel  suo  nuntio"  (to  the  person  presenting  the  bill).  The  bill  of 
exchange  has  its  origin  in  the  letter  of  notice  or  draft  addressed 
by  the  banker  {drawer)  to  his  correspondent  {drawee)  which  asks 
him  to  pay  the  sum  which  he,  the  banker,  has  promised;  this  was 
a  mere  message  without  any  value  in  law;  *  it  co-exists  in  the  thir- 
teenth century  and  the  beginning  of  the  fourteenth  century  with 
the  notarial  deed  which  we  have  been  discussing.  During  the  course 
of  the  fourteenth  century  it  comes  to  be  substituted  for  the  latter 
and  eliminates  it,  and  this  is  possible  because  there  are  found 
therein  the  same  statements,  and  it  is  intrusted  to  the  man  who 

*  Parbre,  82;  Goldschmidt,  451:  from  1560  on,  great  number  of  indorse- 
ments in  Italy:  " Pragmatique "  of  1607  and  1617  (prohibition);  Law  of 
Venice  of  1593;  Clairac,  "Usances  du  Ndgoce,"  pp.  35,  62;  Ord.  of  1673,  5, 
23.     Cf.  Debray,  51  (theories  of  the  seventeenth  and  eighteenth  centuries). 

*  Or  even  originally  an  overseer  or  clerk.  Cf.  "passive"  clause  to  order 
"per  me  vel  per  meum  nuntium." 

^  Cf.  Goldsmidt,  op.  cit.,  p.  412  ("cambium  ad  risicum  maris,"  or,  on  the 
other  hand,  "salvum  in  terra"). 

*  Various  systems  as  to  the  origin  of  the  draft.  Goldschmidt  connects  it 
with  the  domestic  bill  of  exchange;  Schaube,  with  business  letters  between 
merchants;  Lastig,  "Zf.  Handelsr.,"  1878,  138,  with  the  mentioning  of  it  in 
the  registers  of  the  bankers  or  "campsores,"  which  in  Italy  had  executory 
force  and  were  accompanied  by  a  notice  or  letter  of  payment;  Freundt  con- 
nects it  with  letters  patent  and  sealed  letters  delivered  by  the  kings  or  towns 
to  their  creditors.  On  these  points  and  on  Arabian  influence,  cf.  Huvelin, 
op.  cit. 

538 


Topic  6]  SOME   PARTICULAR   KINDS   OF   COXTIL\CTS  [§  398 

gives  value  himself  in  order  to  be  presented  at  maturity,  either  by 
him  or  by  his  legal  representative,  to  the  drawee  who  shall  pay 
on  presentation.  It  has,  moreover,  the  special  advantage  of 
summary  proceedings  at  law,  and  it  carries  with  it  a  recourse 
by  the  man  who  gives  value  against  the  man  who  has  signed  the 
bill,  when  unpaid  by  the  drawee.  The  clause  value  received, 
and  the  handing  of  the  letter  to  the  payee,  implies  an  acknowledg- 
ment of  the  debt  on  the  part  of  the  drawer.  The  order  to  pay, 
which  is  given  to  the  drawee,  is  to  be  accounted  for  by  the  fact 
that  he  is  the  partner  of  the  drawer,  or  that  he  has  received 
value  from  the  latter  (provision);  under  these  circumstances,  one 
can  understand  that  the  drawee  was  held  bound  to  accept  the 
letter.  This  was  originally  done  verbally  "per  retentionem  lit- 
terarum,"  and  later  on  by  a  notice  written  upon  the  deed  itself;  a 
refusal  to  accept  was  also  proved  by  means  of  a  written  notice  of 
the  drawee;  but  this  custom,  which  was  not  very  favorable  to 
credit,  disappeared,  and  the  responsibility  of  niaking  a  protest  for 
non-acceptance  was  left  to  the  bearer.  By  acceptance,  although 
the  drawer  is  not  liberated,  the  drawee  binds  himself  as  regards 
the  bearer;  he  does  it  rather  in  the  name  of  the  drawer  than  in 
his  own  name,  which  allows  him  to  avail  himself  (until  towards 
the  sixteenth  century)  of  the  defenses  which  the  drawer  could 
oppose  to  the  payee  (for  example,  the  latter  had  not  furnished 
him  with  value).  If  the  drawee  accepted  ''without  cover"  when 
no  value  had  been  given,  he  was  considered  as  being  bound, 
nevertheless,  because  "acceptance  presumes  value."  Thus  the 
tendency  to  make  the  rights  of  the  bearer  independent  of  the  re- 
lations l^etween  the  drawer  and  the  drawee  is  timidly  advanced 
with  the  object  of  facilitating  the  circulation  of  the  bill  and  giving 
more  security  to  the  bearer.  The  clause  to  order  and  numerous 
indorsements  furthermore  allow  the  bill  of  exchange  to  fulfill  a 
new  function;  at  first  it  only  served  to  avoid  the  transporting 
of  money;  now  it  becomes  a  means  of  payment  and  an  instrument 
of  credit,  a  sort  of  currency  between  merchants;  the  value  which  it 
represents  is  incorporated  in  it,  and  the  complex  practice  of  modern 
times  thus  springs  in  an  unexpected  way  from  the  formalistic 
"carta"  of  the  barbarian  period. 

§  398.  Agency  and  Representation.  —  (A)  General  Remarks. 
In  the  very  old  law  juridical  acts  should  be  carried  out  by  the 
interested  party  himself;  this  is  a  consequence  of  their  formalistic 
character;  ceremonies  or  words  which  they  assume  imply  his  own 

539 


§  398]  OBLIGATIONS  [Ch.yp.  Ill 

presence;  they  would  have  no  meaning  if  they  came  from  a  third 
party.  Under  the  system  of  non-formal  transactions  (for  example, 
contracts  by  mutual  consent),^  representation  became  possible; 
each  one  could  make  known  his  will,  not  only  by  means  of  a  letter 
or  a  "nuncius"  ("epistola  loquens")  but  by  an  agent  furnished 
with  powers  and  instructions  which  were  sufficiently  broad  for 
one  not  to  be  able  to  term  him  merely  a  mouthpiece.  Owing 
to  a  rather  natural  fiction,  however,  he  is  likened  to  a  mere . 
messenger;  the  act  of  the  agent  is  looked  upon  as  the  act  of  the 
principal.  Cases  in  which  it  is  necessary  to  act  through  repre- 
sentatives have  occurred  at  all  times,  —  for  example,  one  is 
absent  or  ill.  How  did  one  proceed  in  the  formalistic  period  to 
do  a  legal  act  in  such  a  case  as  this?  Inaction  is  not  always 
possible;  for  example,  if  one  is  summoned  to  appear  in  court,  one 
is  compelled  to  appear  so  as  to  avoid  the  penalties  which  fall  upon 
the  defaulter.  The  head  of  the  family  sometimes  escaped  this 
necessity  by  using  the  people  dependent  upon  him,  the  people 
of  his  household ;  ^  but  their  sphere  of  action  was  rather  lim- 
ited, for  it  is  evident  that  they  could  not  bind  the  master  "in 
infinitum."  ^  To  be  sure,  representation  was  less  called  for 
than  one  might  believe,  for  every  act  which  involved  a  person 
under  a  disability  was  performed  by  his  custodian,  who  acted  in 
his  own  name  by  reason  of  his  status  as  head  of  the  family;  such 
would  also  be  the  case  when  an  individual  "sui  juris"  had 
an  interest  in  giving  up  his  independence  and  placing  himself 
under  the  custody  of  some  other  person,  with  the  result  of  placing 
that  other  person  over  his  affairs.^  As  far  as  obligations  were 
concerned,  bills  to  bearer  furnished  a  means  of  dispensing  with 
representation.  Besides  the  preceding  cases,^  it  was  possible  to 
secure  the  performance  of  the  majority  of  acts  by  a  third  person  in 
his  own  name,  assuming  that  one  obtained  afterwards  from  him  the 
transfer  of  the  advantage  or  the  burden  which  resulted  there- 

»  Heusler,  I,  210. 

2  Boutaric,  1, 12  (founders  and  factors);  Beaumanoir,  34,  5,  6;  29  (sergeants). 
Monks  in  the  case  of  monasteries:  Dig.  X,  3,  35,  6.  —  Paul,  5,  2,  2  ("L. 
Rom.  Cur."). 

*  Goldschmidt,  I,  244. 

*  Act  of  693;  Pertz,  "Dipl.,"  68;  "Sachsensp.,"  1,  42,  l.  —  Cf.  Roman 
command;  "L.  Wis.,"  ed.  Zeutner,  Index,  see  "Mandatum";  Roziere,  "Form.," 
1,314  et  seq.;  Thevenin,  "Textes,"  262;  Du  Cange,  see  "Mandare";  "Siete 
Part.,"  5,  12,  20;  "Cart,  de  St.  Victor,"  I,  27. 

*  Also  the  English  institution  of  "uses":  a  third  party  acquires  "ad  opus" 
(French:  "ces,"  "os";  EngUsh:  "use")  "monasterii":  Pollock  and  Mait- 
land,  II,  226. 

540 


Topic  6]  SOME   PARTICULAR   KINDS   OF  CONTR.\CTS  [§  398 

from.  Thus  one  person  bought  a  piece  of  land  and  paid  for  it, 
after  which  he  resold  it  to  the  one  on  whose  account  the  pur- 
chase had  been  made;  but  this  complicated  proceeding  is  not 
without  its  risks;  one  of  the  parties  may  suffer  by  reason  of  the 
insolvency  of  the  other;  if  the  transaction  is  an  advantageous 
one,  the  third  party  may  possibly  want  to  keep  it  for  himself;  he 
may  die  before  having  carried  out  the  transfer,  and  his  heirs  may 
refuse  to  carry  it  out;  if  the  transaction  is  a  bad  one,  it  is  the 
third  party  who  is  liable  to  lose,  as  a  consequence  of  a  change  of 
will  or  the  death  of  the  one  who  is  chiefly  interested.^  Noth- 
ing can  take  the  place  of  representation,  properly  so  called.^  It 
■entered  the  Customary  law  in  proportion  as  formalism  disap- 
peared.^ But,  in  order  to  show  how  slow  was  its  progress,  it  is 
sufficient  to  establish  that  it  was  not  allowed,  upon  principle, 
in  Germany  before  the  thirteenth  century.  Were  it  a  matter  of 
endowing  a  monastery,  one  did  this  only  when  the  relics  had  been 
placed  there;  it  is  to  the  saint  himself,  in  person,  upon  the  shrine 
where  his  remains  are,  that  the  transfer  is  made;  if  one  is  to 
restore  a  piece  of  land  to  St.  Victor  of  Marseilles,  the  monks  bear 

*  Beaumanoir,  34,  36,  37,  55;  c/.  especially  c.  29  (services  carried  out  by 
order).  Cf.  "Jostice,"  162.  —  "Commission,"  cj.  Ferriere,  see  "Facteur''; 
"Diet,  ceconomique,"  see  "Commissiomiaire";  Goldschmidt,  I,  331;  Du  Cange, 
see  "Commissio."  —  Will  by  commissioner:  R.  Caillemer,  "Execut.  test.," 
p.  512.  —  Election  of  an  agent:  c/.  "Repertoires,"  see  "Prete-nom."; 
Soldan,  "R.  Gen.  Dr.,"  1885,  113. 

2  With  regard  to  Promises  and  Stipulations  on  behalf  of  another  there  is  a 
great  deal  of  confusion  in  the  old  doctrine.  Cf.  J.  Faure,  "Inst.,"  3,  18, 
3  and  19;  Gui  Pape,  "Q.,"  317.  They  are  not  very  clearly  distinguished 
from  promises  and  stipulations  made  by  the  interposition  of  a  third  party: 
Bucherellus,  "De  sequitate  canonica";  these  deeds  are  valid,  and,  in  fact, 
the  rule  has  so  many  exceptions  that  one  is  inclined  to  ask  whether  it  was 
possible  to  apply  it:  Pothier,  "Oblig.,"  53  et  seq.  (cited  by  Grotius).  In  the 
very  old  law  one  promises  a  certain  thing  for  another  (for  example,  that  he 
will  appear  in  court),  and  one  stipulates  for  another,  for  from  the  moment  the 
required  formalities  have  been  carried  out  the  promisor  is  bound;  the  ques- 
tion as  to  whether  the  man  making  the  stipulation  has  a  moral  or  pecuniary 
interest  in  the  carrying  out  of  the  obligation  is  not  gone  into.  The  examples 
ordinarily  cited  give  rise  to  difficulties:  appointment  of  a  marriage  portion 
by  the  wife's  relatives,  conferring  the  fief  upon  a  lord  in  order  that  he  shall 
invest  the  purchaser,  deeds  by  a  "Salmann,"  life  rent  for  the  benefit  of  a  third 
party,  substitutions,  stipulations  in  contracts  of  marriage  for  the  benefit  of 
children  to  be  born  in  the  future,  bills  to  order  and  to  bearer.  Stobbe,  §  172. 
The  Roman  axioms  penetrated  the  old  doctrine,  although  they  were  contra- 
dictory to  the  rule  that  all  contracts  were  in  good  faith.  But  this  was  not 
done  without  some  difficulty:  Beaumanoir,  34,  36  et  seq.;  "Stat.  Bonon.," 
14.54,  118  (one  may  stipulate  on  behalf  of  another,  "non  obstante  quod  sua 
non  intersit,"  and  the  third  party  has  an  action  "ipso  jure,"  just  as  though  he 
had  stipulated):  Fertile,  IV,  4.55;  Bartole,  on  1.  1.  D.,  "de  pactis":  Voet, 
"Pand.,"  46,  1  etseq.;  Charondas,  '^'Rdp.,"  X,  46;  Buchka,  "Stellvertr.,"  121; 
Lambert,  "Contrats  en  Fav.  des  Tiers,"  1893. 

"  Fertile,  IV,  452,  believes  that  it  is  older  than  this:  "L.  long.  Lud.,"  14. 

541 


§  398]  OBLIGATIONS  [Chap.  Ill 

his  shrine  to  the  place  and  leave  it  there  three  days.  There  was, 
however,  in  this  a  particularly  favorable  case,  because  it  was 
absolutely  impossible  for  the  monastery  to  act;  therefore,  one 
approached  as  nearly  as  possible  to  the  personal  act.  And,  when 
representation  is  accepted,  it  is  not  a  rare  thing  to  find  that  there 
are  doubts  cast  upon  the  validity  of  the  act  of  the  representative, 
and  that  this  act  must  be  confirmed  by  the  man  who  is  represented 
as  soon  as  that  becomes  possible.  Scruple  and  hesitation  have 
disappeared  towards  the  end  of  the  fourteenth  century  in  a  gen- 
eral way,  and  before  that  period  in  many  instances.^  The  status 
of  agents  for  business  transactions  (by  contrast  with  agents  or 
attorneys  at  law)  was  worked  out  by  borrowing  from  the  rules 
of  the  Roman  law  and  the  canon  law  (the  Sixth  Book  of  Decre- 
tals, 5,  12,  68,  72) .2 

§399.  The  Same.  —  (B)  "  Salmannen."  With  ordinary  represen- 
tatives let  us  compare  testamentary  executors,  whom  we  will  deal 
with  later  on,  ^  and  the  "Salmannen"  of  the  German  law.^  The 
"Salmann"  is,  as  his  name  indicates,  a  person  who  carries  out 
the"Sala"  or  transfer  of  land,  but  who  carries  it  out  for  some 
one  else;  he  is  an  intermediary  between  the  grantor  and  the 
grantee.  Originally,  he  is  found  officiating  for  transfers  "mortis 
causa";  ^  in  danger  of  dying,  I  wish  to  please  some  one  after  my 
death;  but,  if  I  survive,  I  intend  to  keep  my  possessions;  in  order 
to  attain  this  object  I  confide  them  to  a  third  party,  to  the  person 
whom  one  would  call  a  "Salmann"  during  the  feudal  period,  at 
the  same  time  making  him  promise  to  carry  out  my  wishes;  by 
this  means  I  shall  be  better  assured  of  recovering  them  in  case  I 

1  Beaumanoir  contrasts  sergeants  (those  who  render  services)  for  wages 
and  by  command,  whom  he  likens  to  people  of  the  household  (39,  6),  and  whom 
the  lord  cannot  disowTi  so  long  as  they  fulfill  their  offices  (excepting  in  the  case 
of  a  crime),  with  sergeants  by  request  or  appointment,  to  whom  only  their 
expenses  have  to  be  paid,  and  who  are  bound  with  respect  to  third  parties 
(29,  6),  and  finally  with  those  who  serve  without  wages  or  having  their  ex- 
penses paid,  at  their  own  risk  and  peril:  Du  Cange,  see  "Serviens";  Ragueau, 
see  "Sergent." 

2  Dig.  X,  "de  procur.,"  1,  38,  and  commentaries  of  Hostiensis,  etc.;  G. 
Durand,  "Spec,"  ibid.;  Boutaric,  I,  10;  Masuer,  4;  J.  Faber,  "Inst.,"  Ill, 
26;  IV,  11,  etc.;  Loysel,  371  et.  seq.;  Domat,  I,  15;  Pothier,  "Tr.  du  Mandat," 
1767.  —  Cf.  ibid.,  on  the  commission,  the  administration  of  affairs,  guardian- 
ship and  custody.  —  As  to  the  contract  of  agency  or  brokerage,  cf.  Loysel, 
416;  Goldschmidt,  "Zf.  Handelsr.,"  28,  115.  —  Sub-agents:  Loysel,  371;  Beau- 
manoir, 4,  in  fine. 

8  Cf.  "manda"  in  the  case  of  a  will:  "Fuero  Real,"  3,  4. 

*  Heusler,  II,  215;  Stobbe,  "Z.  R.  G.,"  VII,  405;  Beyerle,  "Grundeigen- 
thumsrecht"  (Constance),  I,  1;  "Salmannenrecht."  Cf.  "Z.  S.  S.,"  1900, 
"G.  A.,"  351. 

*  "L.  Sal.,"  tit.  46  (appointment  of  an  heir). 

542 


Topic  6]  SOME   PARTICULAR   KINDS  OF  CONTRACTS  [§  399 

survive  than  if  I  had  directly  deprived  myself  of  them  in  favor  of 
the  person  for  whom  they  are  really  intended;  and,  moreover, 
the  latter  might  not  be  present  at  the  time  when  I  wanted  to  make 
the  disposition.  In  a  general  way,  recourse  was  had  to  this  kind 
of  alienation  by  means  of  a  person  interposed,  whenever  there  was 
an  obstacle  to  direct  alienation.^  And  in  the  end  the  "Salmann" 
was  sometimes  even  given  the  part  of  a  warrantor  of  alienation.^ 
Outside  of  this  exceptional  situation  there  has  been  a  great  deal 
of  discussion  upon  the  function  and  the  rights  of  the  "Salmann." 
According  to  some  he  is  a  representative  of  the  grantor;  according 
to  others,  a  purchaser  in  trust.^  As  we  look  at  it,  the  difficulty 
arises  from  the  fact  that  his  role  was  not  always  the  same;  he  be- 
gan by  being  a  fiduciary  purchaser  and  tended  to  become  an  agent 
with  powers  which  were  more  or  less  extensive.  It  is  precisely 
because  of  this  evolution  that  his  acts  are  not  reconcilable  and 
have  been  capable  of  furnishing  arguments  in  different  directions. 
At  one  period,  when  representation  was  not  admitted,  the  grantor 
who  could  not  dispose  directly  for  the  benefit  of  the  one  for  whom 
he  intended  his  property,  found  himself  under  the  necessity  of 
granting  the  full  ownership  of  it  to  a  friend,  at  the  same  time 
charging  him  in  his  turn  to  make  a  similar  grant  to  the  ultimate 
grantee.    This  friend  became  the  owner,  but  he  bound  himself  by 

1  "Cart.  Sen.,"  50;  "Hist.  Frising.,"  nos.  224,  287,  308,  366,  342,  etc.; 
"Urk.  St.  Gall,"  nos.  325,  342,  etc.  In  1160  Conrad,  the  Duke  of  Suabia, 
serves  as  an  intermediary  in  the  case  of  an  acquisition  for  the  benefit  of  the 
Prior  of  Burglen,  because  the  reUcs  of  St.  John  were  not  on  the  spot  at  the 
time  the  deed  was  drawn:  Heusler,  I,  208. 

2  "Saleburgiones."  C/.  the  texts  cited  by  fl^eusZer,  II,  222.  "The  Bavarian 
'Salmann,' "  says  this  learned  man,  "is  the  living  land  register  of  all  property; 
he  bears  witness  to  the  regularity  of  the  alienation."  Cf.  ibid. :  "The  stranger, 
by  whom  the  acquisition  of  a  piece  of  land  situated  in  a  town  is  not  on  prin- 
ciple permitted,  is  authorized  to  purchase  if  he  has  the  assistance  of  a  'Sal- 
mann'  who  is  a  citizen  of  the  town." 

'  According  to  Heusler,  loc.  cit.,  the  truth  would  seem  to  be  half  way  be- 
tween the  two  systems.  As  far  as  he  is  concerned,  the  "Salmann"  would  be 
in  a  position  analogous  to  that  of  a  guardian  ("Vormund").  But  the  powers 
that  he  is  recognized  as  having  assume  that  he  has  become  the  absolute  owner, 
—  at  least  in  the  very  old  law;  in  fact,  in  order  that  he  may  transmit  the  prop- 
erty to  the  person  for  whom  it  is  intended,  he  carries  out  an  absolute  aliena- 
tion with  "resignatio";  it  is  the  same  when  it  is  a  question  of  restoring  the 
property  to  the  original  grantor.  If  the  latter  should  carry  out  the  transfer, 
such  an  act  as  this  on  his  part  would  be  invalid,  and  it  would  be  necessary  for 
the  "Salmann"  to  intervene.  The  appointment  of  the  "Salmann"  takes 
place  "per  festucam."  Sometimes,  even,  we  find  that  the  grantor  has  trans- 
ferred the  property  to  him  by  carrying  out  both  the  delivery  and  the  "resig- 
natio." Had  he  not  been  the  owner,  he  could  not  have  validly  carried  out 
the  formalities  of  the  transfer  of  ownership,  and  could  not  have  served  as  a 
warrantor  for  the  purchaser.  Cf.,  however,  texts  and  discussion  in  Heusler, 
II,  218. 

543 


§  399]  OBLIGATIONS  [Chap.  Ill 

"fides  facta"  to  make  restitution;  it  is  the  "fidelis  manus,"  "treue 
Hand,"  which  restores  that  which  it  has  received.  The  value  of 
this  proceeding  depends  a  great  deal  upon  the  good  will  of  the  in- 
termediary. It  is  true  that  the  "fides  facta"  allows  one  to  compel 
him  to  perform,  but  the  beneficiary  of  the  deed  —  that  is  to  say, 
the  one  who  is  chiefly  interested  —  is  not  authorized  to  compel 
him  to  do  so;  only  the  grantor  and  his  heirs  have  the  right,  which 
is  not  sufficient,  because  the  grantor  cannot  always  act,  and  it  is 
possible  that  heirs  who  are  indifferent  might  not  wish  to  do  so. 
Then  it  was  that  they  must  have  thought  of  limiting  the  right  of 
the  "Salmann"  over  the  possessions  which  he  received,  so  as  to 
remove  from  him  the  temptation  to  which  he  was  exposed  of  un- 
lawfully keeping  them;  it  is  undoubtedly  by  reason  of  this  that 
the  grantor  stops  with  a  simple  "  traditio,"  without  "se  exitum 
dicere"  which  allowed  of  his  more  easily  recovering  that  which 
he  had  given.  In  places  where  the  institution  of  the  "Salman- 
nen"  existed  their  powers  were  restricted;  as  a  general  thing, 
they  disappeared  to  make  room  for  ordinary  agents. 

§  400.  The  Same.  —  (C)  Attorneys.  One  could  not  be  repre- 
sented at  law  during  the  barbarian  period  by  reason  of  the  form- 
alistic  character  of  procedure.^  There  w^as  no  exception,  even  in 
case  of  a  lawful  excuse,  unless  one  pleaded  in  the  court  of  the  king, 
or  had  obtained  a  royal  privilege.^  Principle  and  exceptions  are 
to  be  found  in  the  Customary  law.  Many  of  the  Customs  still  for- 
bade representation  at  law,^  unless  by  virtue  of  a  privilege  of  the 
king  or  a  lawful  impediment.^    But  privileges  were  multiplied: 

1  For  the  same  reason  a  defect  of  one  party  halts  the  proceedings;  one  can 
only  accomplish  this  originally  by  indirect  means,  such  as  the  fine  and  placing 
outside  of  the  law:  Brunner,  §  113;  Pollock  and  Maitland,  II,  592.  Later 
on  the  rule,  "Absens  pro  confesso  habetur":  Loysel,  871;  Glasson,  III,  452; 
VI,  495.  Cf.  theories  of  the  excuses,  etc.;  Tardif,  "Proc^d.  au  XIIP  s."  — 
Champions  or  defenders  in  the  duel  at  law:  Beaumanoir,  41,  6;  P.  de  Fon- 
taines, 22,  13. 

2  Marculfe,  I,  21  (appointment  of  a  representative  "per  festucam"),  2^; 
II,  31;  "F.  Arvern,"  2;  "Turon.,"  20;  Rozikre,  344,  384,  387,  391;  TM- 
venin,  "Textes,"  269;  Capitulary  of  802,  9  (I,  93);  Heusler,  I,  205;  Hiibner, 
"Gerichtsurk.  d.  franh.  Z.";  Battaglia,  "Rist.  dir.,"  1889.  As  to  "Sal. 
Extrav.,"  12  (76),  cf.  Geffcken,  bibl.;  Brunner,  "Mithio,"  p.  6.  —  The  rep- 
resentative was  in  a  position  analogous  to  that  of  a  "Salmann."  Cf.  "ad- 
vocati"  ("avou^s"),  lawyers,  ecclesiastical  "vidames"  (the  clergy  is  pledged 
to  plead  by  means  of  an  attorney.  Council  of  Carthage,  75).  "Capit.,"  see 
Table;  Pardessus,  "Dipl.''  11,233.  The  vassals  of  the  king  can  also  have 
them.     Cf.  for  "vicini,''  Fumagalli,  "Cod.  ambr.,"  no.  121. 

^  Beaumanoir,  2,  16;  4,  2  and  31;  "Const,  du  Chdt.,"  p.  79;  Langlois, 
"Textes  pari.,"  pp.  19,  20,  135;  Aubert,  "Hist,  du  Pari.,"  II,  44.  Germany: 
privilege  of  the  lord. 

*  The  representative  at  law  is  called  "procurator,"  "procureur,"  "attorn^" 
(Normandy),  "allou^."     General  texts:  Beaumanoir,  4;  "A.  C,  Artois,"  9, 

544 


Topic  6]  SOME   PARTICULAR   KINDS   OF  CONTRACTS  [§  400 

such  was  the  one  which  was  granted  in  a  general  manner  to  the 
Church  and  the  prelates,  which  was  the  easier  to  be  accounted 
for  as  the  Courts  of  the  Church  admitted  of  representation.^  In 
Normandy  and  in  England  the  rule  is  that  before  the  court  of  the 
duke  or  the  king  one  may  be  represented.^  The  Parliament  of 
Paris  did  not  go  so  far  as  this,  and  made  between  the  plaintiff  and 
the  defendant  a  wide  enough  distinction,  which  the  other  tribu- 
nals took  unto  themselves:  the  defendant  was  free  to  have  himself 
represented;  ^  the  plaintiff,  who  can  choose  his  own  time  for  plead- 
ing,^ must  obtain  a  charter  of  exemption  J'  These  charters  were  not 
granted  originally  excepting  to  those  who  had  a  lawful  excuse.^ 
But,  when  it  was  seen  that  they  had  no  more  reason  for  existing, 
they  degenerated  into  a  fiscal  provision,^  and  in  the  fourteenth 
century  they  were  granted  to  anybody  who  paid  the  fees  of  the 
chancery.  ^Nlany  people  had  been  allowed  to  dispense  with  them 
at  an  early  time,  —  churches,  towns,  bailiffs,  and  guardians,  —  and 
they  were  not  demanded  in  countries  of  written  law.^    In  the  end 

10;  "Gr.  Gout.,"  3;  "Olim,"  I,  833,  45.  He  does  not  have  to  furnish  surety 
"de  rato"  in  the  lay  court.  Beaumanoir,  IV,  24:  the  act  of  the  attorney  is 
looked  upon  as  the  act  of  the  principal:  ibid.,  29,  6. 

1  "Ord.,"  I,  118  (in  1290);  cf.  Langlois,  "Reg.  de  Nicolas  IV,"  825. 

2  Cf.  Pollock  and  Maitland,  I,  190  (attorney);  "Summa  Norm.,"  64  ("de 
attornato"). 

3  "Et.  de  St.  Louis,"  I,  106;  Beaumanoir,  IV,  31  (only  noblemen:  the  men 
of  power  must  have  the  permission  of  the  king  or  of  the  lord  justice).  Monks, 
clericals  and  women  have  this  right,  ibid.,  cf.  Ill,  9.  —  But  in  criminal  matters 
the  defendant  must  appear  in  person:  Beaumanoir,  IV,  14,  23;  "Jostice," 
pp.  106,  132;  "A.  C.,  Anjou,"  IV,  317;  "Ohm,"  II,  228,  no.  7;  Guilhiermoz, 
"Enq.,"  p.  109;  "Toulouse,"  2,  2;  "A.  G.,  Bret.,"  91;  "A.  G.,  Artois,"  7,  21; 
"Picardie,"  14;  "Gap.,"  IV,  14;  VII,  337. 

*  He  does  not  always  choose  it,  for  we  must  not  think  that  one  pleads  for 
pleasure;  ordinarily  one  only  has  recourse  to  the  courts  if  one  is  the  victim 
of  an  injustice,  and  in  this  case  it  is  often  urgent  to  ask  for  a  reparation  of  tliis 
injustice.  Nevertheless,  the  defendant  is  favored  rather  than  the  plaintiff, 
because  the  wisest  thing  to  do  is  to  maintain  the  "statu  quo"  as  long  as  it 
has  not  been  established  that  it  is  unjust  to  do  so. 

5  Beaumanoir,  II,  16;  III,  32;  IV,  2;  "Jostice,"  p.  105;  "L.  d.  Droiz," 
I,  209;  "A.  G.,  Artois,"  9,  5;  "A.  G.,  Anjou,"  2,  103;  "Gr.  Gout.,"  p.  394; 
"Stil.  Pari.,"  13;  Masuer,  18.  As  to  the  delivery  of  these  charters,  cf.  "Gr. 
Gout.,"  pp.  19,  433,  394;  Boutaric,  I,  10;  Le  Coq,  "Quest.,"  no.  86;  Ord.  of 
Nov.  3,  1400.  Valid  only  for  a  year;  whence  the  necessity  for  renewing  them 
in  many  cases:  Beaumanoir,  IV,  10. 

«  The  "Stilus  Pari.,"  13,  3  and  the  "Gr.  Gout.,"  p.  449,  explain  the  neces- 
sity of  charters  of  exemption  by  two  motives  that  are  equally  false:  the  seat 
of  justice  is  more  honored  by  the  presence  of  the  parties;  it  is  only  when  the 
demand  is  unlawful,  some  little  trickery,  that  the  complainant  fears  to  present 
it  himself;  the  king  spares  him  by  passing  his  shame  on  to  another.  Cf. 
"Et.  de  St.  Louis,"  II,  8;  Pasquier,  "Rech.,"  II,  4.  In  these  charters  of 
exemption  it  is  easy  to  recognize  the  royal  privilege  of  the  barbarian  period. 

'  "Gr.  Gout.,"  p.  432;  Boutaric,  I,  10;  "A.  G.,  Artois,"  2,  8,  9;  "A.G., 
Anjou,"  II,  103;  IV,  74. 

8  Loysel,  374,  375;  BeauTnanoir,  IV,  31;  "Gr.  Gout.,"  pp.  432,  393;  "A.  G., 

545 


§  400]  OBLIGATIONS  [Chap.  Ill 

they  were  abolished  by  force  of  the  remonstrances  of  the  States- 
General  of  Tours  of  1484.^  Not  only  had  representation  become 
lawful,  but  the  official  solicitors  had  to  be  employed  by  pleaders 
in  their  interest.  By  one  of  those  oddities  which  are  not  rare  in 
the  history  of  the  law,  the  formula  itself  of  the  old  principle,  how- 
ever, survived;  the  saying  is,  even  at  the  present  time:  "No  one 
in  France  pleads  by  means  of  an  attorney  save  the  king."  It  is 
true  that  it  has  assumed  a  meaning  very  different  from  that  which 
it  was  given  at  first.  The  powerful  lords  were  in  the  habit  of 
having  at  the  court  of  the  king  permanent  attorneys  charged  with 
representing  them  in  all  their  actions.  Now,  the  latter  pleaded 
in  their  own  names.  The  Parliament  forbade  this,'  and  decreed 
that  the  name  of  the  party  himself  figure  in  the  pleadings 
and  in  the  judgment,  and  this  even  before  the  name  of  the 
attorney.  It  wa^  necessary  that  the  greatest  lords  should  not 
seem  to  be  superior  to  the  justice  of  the  king  and  should  call 
upon  it  just  as  ordinary  individuals  did.^  It  is  obvious  that 
this  reason  did  not  exist  in  the  case  of  the  king.  It  no  longer 
existed  even  for  the  lords  when  they  pleaded  before  their  own 
courts;  thus  they  were  authorized  to  plead  therein  by  means  of 
attorneys.^ 

In  the  olden  times  the  plaintiff  who  was  capable  of  appearing  at 
court  came  in  person  and  appointed  his  representative  before  the 
judges  in  the  presence  of  the  adverse  party,  and  perhaps  vnth  the 
consent  of  the  latter.^  (Cf.  "  cognitor.")  This  archaic  method  was 
abandoned  first  of  all  for  the  benefit  of  the  powerful  lords,  who 

Artois,"  2,  8;  3,  32;  9,  5;  Boutaric,  I,  12;  "Olim,"  I,  694;  "A.  C,  Bourg." 
in  Giraud,  II,  294;  Langlois,  "Textes  s.  Pari.,"  nos.  46,  103;  Lot,  "Frais  de 
just."  ("B.  Ch.,"  1872);  "Toulouse,"  3;  Blanchard,  >'Doc.  inedits  sur  leCom- 
merce  de  Marseille"  (agency  in  the  thirteenth  century);  "B.  Ch.,"  1878. 
Fiction  of  representation  in  the  Italian  statutes  of  the  twelfth  and  thirteenth 
CGnturiGS 

1  Isamhert,  XI,  61  (Art.  17).  Attempts  in  1414.  Cf.  "Journal"  oi  Nic. 
de  Baye,  II,  198;  Aubert,  "Le  Pari.,"  pp.  251,  355;  Lot,  "B.Ch.,"  1872,  p.  592 
(legal  expenses,  fourteenth  century);  Tanon,  "Ordre  du  proces  civ.,"  p.  16; 
Roziere,  "Ass.  de  Senlis,"  p.  13;  "R.  crit.,"  1875,  638;  1876,  353;  Percerou, 
"Nul  ne  plaide  par  procureur,"  1898.  Ordinance  of  Nov.  15,  1407:  at  the 
Chatelet  the  attorneys  no  longer  plead  the  other  attorney's  lack  of  a  charter  and 
no  longer  ask  for  these  charters,  which  does  not,  however,  prevent  them  from 
making  the  clients  pay  for  them:  Ordinance  of  Jan.  13, 1528;  Lebret,  "Souver," 
III,  10;  Edict  of  June^  1549  (queen). 

^  This  is  the  current  explanation;  it  is  not  a  very  satisfactory  one. 

3  Loijsel,  861  (bibl.);  cf.  "Toulouse,"  3. 

*  Beaumanoir,  4,  17, 18,  20  (towns);  "A.  C,  Anjou,"  II,  102  (partnerships); 
"L.  d.  Droiz,"  nos.  802,  846,  975  (church).  Salaried  attorneys  of  the  great 
men  of  towns  and  of  communities:  Aubert,  "Hist,  du  Pari.,"  pp.  255  et  seq.; 
Boutaric,  I,  6,  10;  "Toulouse,"  ib. 

546 


Topic  6]  SOME   PARTICULAR   KINDS   OF   CONTRACTS  [§  401 

were  authorized  to  appoint  an  attorney  by  authenticated  writings 
addressed  to  the  judge.  In  the  case  of  ordinary  individuals  also, 
the  duty  of  appearing  in  person  was  soon  replaced  by  an  authen- 
ticated power  of  attorney/  the  regularity  of  which  the  judge 
had  to  verify.  As  soon  as  the  cause  was  at  issue  the  attorney 
became  master  of  the  proceeding  and  could  no  longer  be  ousted; 
he  was  looked  upon  as  pleading  on  his  own  account.^  Elsewhere 
we  have  described  how  the  attorney's  profession,  originally  free 
from  interference,  was  regulated  by  the  tribunals  and  trans- 
formed into  an  official  position. 

§  401.  Sale.  —  (A)  Formation.^  Sale,  having  once  more  be- 
come a  contract  based  on  mutual  consent,*  was  subjected  in 
almost  every  way  to  the  Roman  rules.  Our  old  law,  however, 
admits  that  the  sale  of  something  belonging  to  another  is  not 
lawful,^  and  that  the  risk  of  the  "res"  is  on  the  owner  and  not  on 
the  creditor;  ^  this  is,  at  least,  the  tendency  which  arises  from  the 
midst  of  the  discussion,  and  it  should  be  noticed  that  it  harmonizes 
with  the  early  system  according  to  which  sale  was  formed  "re." 
The  variations  of  the  law  on  the  subject  of  the  formation  of  con- 
tracts perhaps  also  account  for  the  classic  controversy  on  the 
question  of  a  promise  to  sell.^  Some,  like  Decius,  held  that  only 
an  obligation  "facere"  resulted  from  the  unilateral  promise  to 
sell  when  accepted  by  the  buyer.  The  promisor  was  only  liable 
to  pay  damages  when  he  refused  to  carry  out  the  sale.  Others, 
such   as  Jason,    held  that   an   obligation   arose   therefrom   and 

'  "Procuratorium,"  Beaumanoir,  c.  A;  Boutaric,  I,  10;  Giraud,  "Essai,"II, 
152;  Mazure,  "Fors  de  Beam,"  p.  247;  Varin,  "Arch.  leg.  de  Reims,"  I,  96. 
General  power  of  attorney  and  special  power  of  attorney  (according  to  cir- 
cumstances,—  for  example,  to  compound,  to  compromise:  Beaumanoir,  IV, 
30,  36;  "A.  C,  Anjou,"  II,  101  et  seq.;  IV,  80, 317,  and  according  to  the  period) : 
"Et.  de  St.  Louis,"  I,  107;  II,  109. 

2  "Gr.  Gout.,"  pp.  397,  419,  433;  Boutaric,  I,  10,  107;  Masuer,  IV,  13; 
"L.  d.  Droiz,"  I,  213;  "A.  G.,  Anjou,"  IV,  395;  "Gonst.du  Gh&t.,"  71  (death 
of  the  beggar). 

'  Sales  by  authority  of  the  law  (ordered  by  the  law  and  carried  out  under 
its  control):  "encan"  (movables  seized),  "licitation"  (selling  at  auction)  of 
the  immovables  which  cannot  be  partitioned,  "decret"  (decree)  or  adjudi- 
cation upon  a  decree  of  immovables  which  have  been  seized,  sale  at  law  of 
the  immovable  possessions  of  minors. 

*  As  to  the  publication  of  sale  (Italy) :  Fertile,  IV,  555;  Salvioli,  "Pubblicita 
n.  vend.,"  1895.  —  Jagemann,  "Daraufgabe,"  (earnest  money),  1873. 

0  Cf.  Paul,  II,  17,  1  ("L.Rom.  Cur.");  "Wis.,"  5,  4,  8;  "Bai.,"  15;  Caillet, 
cited  by  Pothier,  no.  48;  Denisart,  see  "Gar.";  Beaumanoir,  34,  3,  9,  55; 
"A.  G.,  Anjou,"  II,  234,  507;  Boutaric,  I,  27,  48;  Argou,  III,  23;  Domat,  1,  2, 
4,  13.  Origin  of  this  idea  in  the  Ganon  law:  Endemann,  2,  24,  82,  87:  Kohler, 
"Abh.,"  224;  Dareste,  96. 

*  Glanville,  X,  14. 

^  Aubepin,  "R.  crit.  de  L^g.,"  1859,  177,  399;  Texereau,  "Th^se,"  1899. 

547 


§  401]  OBLIGATIONS  [Chap.  Ill 

allowed  the  buyer  to  have  the  thing  which  had  been  promised 
delivered  to  him.  There  was  a  like  controversy  with  regard  to 
the  reciprocal  promise  to  sell  and  to  buy.  According  to  Jason, 
to  sell  was  one  thing,  to  promise  to  sell  was  another  thing;  the 
promise  did  not  carry  with  it  the  transfer  of  the  title;  it  did 
not  throw  the  risk  on  the  party  who  had  promised  to  buy.  Du- 
moulin,  together  with  Alexandre,  maintained  that  the  promise  to 
sell  was  equivalent  to  sale  from  the  moment  when  all  the  ele- 
ments of  the  contract  existed  together,  —  agreement  of  the  par- 
ties, an  ascertained  object,  and  a  settled  price.  However,  they 
distinguished  the  promise  "de  prsesenti"  from  the  promise  "de 
futuro";  if  it  were  made  to  be  carried  out  in  the  future  it  did 
not  carry  with  it  any  present  obligation;  the  lord's  fees  were  not 
due;  in  case  it  was  not  performed  damages  had  to  be  paid;  the 
vendor,  by  inserting  a  clause  in  the  promise,  could  reserve  the 
right  to  dispose  of  the  object  of  the  sale,  and  the  buyer  did  not  have 
the  risk.    Dumoulin's  doctrine  prevailed  in  the  French  practice. 

§  402.  The  Same.  —  (B)  Effects.  The  obligation  to  deliver 
and  to  warranty  is  incumbent  upon  the  vendor,  that  of  pay- 
ing the  price  is  incumbent  upon  the  buyer.^  The  old  authors 
subordinated  the  transfer  of  the  ownership  of  the  thing  purchased 
to  the  payment  of  the  price.^  In  practice  this  means  that  the 
vendor  has  a  lien  on  immovables  which  have  been  sold;  he 
also  has  one  on  movables,  but  only  as  long  as  they  are  in 
the  hands  of  the  debtor.  If  there  has  been  a  sale  for  cash,  the 
vendor  is  even  given  a  right  of  seizing  within  a  short  period 
sold  movables  which  are  in  the  hands  of  third  parties  and  of 
keeping  them  until  he  has  been  paid ;  ^  this  is  all  that  is  left  of 

1  Tariff  for  the  price  of  merchandise:  "Capit."  of  794,  c.  4  (I,  74),  etc.; 
Fertile,  IV,  566.  —  As  to  the  fair  price  spoken  of  by  the  theologians,  cf.  Ende- 
mann,  II,  29;  Ashley,  I,  164;  Gamier,  "Thfese,"  1900;  Polier,  "These,"  1903. 
Rescission  in  the  case  of  a  great  injury  (excepting  in  the  case  of  judicial  sales, 
which,  however,  often  take  place  for  a  very  low  price;  they  are  necessary). 
Law  of  Sept.  7-11,  1790:  doing  away  with  the  chancery  and,  consequently, 
with  letters  of  rescission.  Decree  of  the  14th  Fruct.,  year  III:  abolition  of 
rescission  for  injury  (because  of  the  tremendous  variations  taking  place  in  the 
price  of  immovables).  Law  of  the  3d  Germ.,  year  V,  and  Law  of  the  19th 
Flor.,  year  VI  (temporary).  Law  of  the  2d  Prair.,  year  VII:  no  rescission  for 
injury  from  the  sale  of  national  possessions,  even  though  it  were  paid  for  in 
assignments:  Sagnac,  p.  202.     Thamasius  had  criticised  this  institution. 

-  Loysel,  407,  408  (a  contradiction  which  is  to  be  accounted  for  by  the 
history  of  the  formation  of  sales).  Argou,  III,  23,  reproduces  the  Roman 
ideas:  Beaumanoir,  34,  59;  35,  20;  24,  28;  "Jostice,"  328;  "Toulouse,"  98,  99; 
Boutaric,  I,  67;  Fertile,  IV,  568;  Desmares,  195.  Cf.  "Paris,"  177;  "Or- 
leans," 458;  Fothier,  no.  322;  Ferrihre,  on  "Paris";  Serres,  "Inst.,"  2,  1,  41 
(a  special  and  preferred  mortgage  over  the  immovables). 

3  "Paris,  A.  C,"  194;  "N.C.,"  176;  "Orleans," 458;  Dumoulin,  on  "Paris." 

548 


Topic  6]  SOME   PARTICUL.\R   KINDS   OF  CONTIL\CTS  [§  403 

the  Roman  rule.  Warranty  ^  protected  against  hidden  defects 
and  eviction.  Formerly  hidden  defects  did  not  allow  of  any 
recourse  to  warranty;  so  much  the  worse  for  the  buyer,  if  he 
had  not  been  aware  of  them.  But  warranty  was  stipulated  in 
the  writing,  and  then  came  to  be  implied  in  the  case  of  the 
more  serious  defects,  so  that  it  then  was  regarded  as  a  natural 
incident  of  sale.  This  matter  was  regulated  by  the  Customs, 
especially  with  regard  to  trading  in  domestic  animals.^ 

§  403.  The  Same.  —  (C)  Warranty  because  of  Eviction.  Even 
at  the  time  of  the  very  old  law  the  vendor  must  have  found  himself 
compelled  to  protect  the  vendee  against  anybody  who  wanted  to 
dispossess  him  of  the  thing  which  had  been  sold;  ^  if  through  any 
fault  of  the  vendor  the  vendee  could  not  keep  the  thing  sold,  the 
vendor  had  to  pay  him  a  composition,  because  he  was  then  guilty 
of  an  offense  as  far  as  the  vendee  was  concerned,  and  his  respon- 
sibility was  the  greater,  as  the  third  party  who  was  reclaiming  the 
thing  was  proceeding  against  him  "ex  delicto."  ^  However,  it  was 
not  unusual  for  the  warranty  to  be  stipulated  for;  ^  and  thus  it 
becomes  a  matter  of  contract;  the  cases  in  which  it  applies  are 
more  clearly  specified ;  the  vendor  is  not  permitted  to  take  refuge 
behind  the  idea  that  he  has  given  up  every  right  which  he  had  and 
should  not  be  held  accountable  for  anything  else;  and,  finally,  the 
amount  of  the  fine  becomes  fixed  beforehand.  It  is  in  this  way 
that  the  once  delictual  obligation  became  a  civil  obligation  for 
damages,  by  virtue  of  an  agreement  which  is  implied  in  every 
contract  of  sale.  Evolution  in  this  direction  took  place  during  the 
Prankish  period;  at  the  same  time  there  are  found  traces  of  the 

The  sale  was  not  cancelled  for  this  reason.  Cf.  Naz,  "Th&se,"  1870.  Serres, 
loc.  cit.,  does  not  mention  this  right  of  witholding. 

'■  Du  Cange,  see  "Garens,"  "Waranthus,"  etc.  Prov.,  "guiren."  German 
etymology:  "weren,"  meaning  to  defend:  Grimm  "R.  A.,"  603;  Brunner, 
II,  501;  "L.  Rib.,"  33,  4:  "fordro"  (hterally  predecessor).  —  "Roisin,"  145: 
Warranty  due  by  the  castellan  to  his  men  who  are  cited  to  appear  before  the 
aldermen. 

2  "L.  Bai.,"  16,  9;  Loysel,  418  et  seq.;  Glanville,  X,  14;  "Ass.  de  J^rus.," 
"C.  des  B.,"  34  et  seq.  (slaves);  Fertile,  IV,  561;  Chaisemartin,  271;  Stobbe, 
§  185:  Huber,  IV,  854.  —  Strykius,  "De  Vitiis  rer.  ven.,"  1709. 

3  Cf.  the  Roman  "deceitful  selling"  ("Stellionat"):  D.,  47,  20,  3,  1;  see 
Ferriere, 

*  "Bai.,"  15,  4,  12;  17,  2;  "Sal.,"  47,  2;  "Roth.,"  231;  "Rib.,"  59,  6; 
72,  6,  7  ("cinu  werduinia"?  Brunner,  II,  504);  Loening,  "Vertragsbr.," 
107. 

6  Thevenin,  "Textes,"  Index,  p.  202;  Hubcr,  IV,  853,  13.  As  to  the  double 
penalty  cf.  Fertile,  IV,  558;  "Milan,"  9;  Lattes,  "Dir.  consuet.  Lomb.," 
p.  208  ("Guadia  fidejussores").  Greek  law,  warrantors  furnished  by  the 
vendor:  Beauchet,  op.  cit.,  IV,  138;  "Const,  du  Chat.,"  51,  67;  Dareste, 
pp.  13,  46. 

549 


§  403]  OBLIGATIONS  [Chap.  Ill 

early  conception  during  the  feudal  period. —  This  early  conception 
rests  essentially  upon  the  idea  that  a  recourse  to  warranty  takes 
the  form  of  a  penal  action  directed  against  the  buyer.  He  is 
accused  of  an  offense;  he  replies  by  calling  in  his  warrantor^ 
("vocare  warantum").^  He  is  granted  a  delay  in  which  to  bring 
his  warrantor  before  the  judge;  ^  this  is  the  day  of  warranty 
("dilatio  garendi")  of  the  feudal  period.'*  Instead  of  this  post- 
ponement granted  by  the  plaintiff  himself,  the  later  law  sub- 
stituted the  summons  given  by  a  public  officer;  and  this  also 
took  place  in  matters  relating  to  warranty.^  —  1st.  If  the  warrantor 
does  not  appear  in  court.  As  a  general  rule,  the  man  who  does  not 
produce  his  warrantor  loses  his  action.  "  He  who  calls  upon  a  war- 
ranty and  has  no  warrantor  loses  his  cause,"  Loysel,  499,  still  says. 
A  few  of  the  barbarian  laws,  however,  show  less  strictness  by 
allowing  the  party  to  exonerate  himself  by  means  of  the  oath 
accompanied  by  fellow  oath-takers.®  All  the  more  reason  why 
the  later  law  should  be  still  more  indulgent  and  allow  him  to 

1  Another  system:  the  withholder  refers  the  complainant  to  his  warrantor: 
"Roth.,"  231.     Cf.  "^thelr.,"  2,  8,  9.     Old  Russian  law. 

2  Glanville,  III,  1;  X,  15;  Bracton,  fo.  257,  380;  "Stil.  Pari.,"  12;  Masuer, 
2;  hnhert,  I,  20;  Boutaric,  1,  33;  "Gr.  Cout.,"  Ill,  16;  Desmares,  140,  354; 
"Cout.  Not.,"  67,  114. 

3  "Rib.,"  33;  "F.  Andec,"  47;  Thevenin,  no.  114  (40  nights).  — Can  the 
warrantor  himself  have  his  own  warrantor  brought  into  the  action?  The 
Frankish  law  does  not  limit  the  recourse  to  warranty,  whereas  the  Scandi- 
navian law  and  the  Lombard  law  require  one  to  go  no  further  than  the  third 
warrantor,  permitting  him  to  escape  the  consequences  of  a  theft  by  restoring 
the  thing  stolen  and  by  swearing  that  he  has  bought  it:  "Sal.,"  39,  47;  "Rib.," 
58,  72;  "Burg.,"  83;  "Bai.,"  loc  cit;  "Wis.,"  7,  2,  8;  5,  4,  8;  "Roth.,"  231. 
"Otto."  I,  7;  "Ina,"  58. — Only  three  warrantors  according  to  the  "Gr.  Cout. 
Norm.',"  50;  "A.  C,  Bourg.,"  83;  "Amiens,"  32.  Seven:  "Et.  deSt.  Louis," 
I,  91;  "L.  d.  Droiz,"  no.  109.  Indefinite  recourse  in  Saxon  law:  Laband, 
"Verm.  Kl.,"  p.  126. 

*  Beaumanoir,  34,  44;  "Et.  de  St.  Louis,"  I,  31;  "A.  C,  Anjou,"  I,  122; 
"Ass.  de  Jer.,"  "C.  des  B.,"  250;  "Schwabensp.,"  II,  93.  —  The  warranty 
was  first  of  all  limited  to  the  year  and  a  day,  for  when  this  time  had  elapsed 
the  purchaser  was  in  a  position  that  could  not  be  attacked :  "  Const,  du  Chat.," 
83,  51;  L.  de  Beaumont,  37;  "Ass.  de  Jer.,"  "Abrege  des  C.  des  B.,"  22;  J. 
d'Ibelin,  80  et  seq.;  112,  132;  Ph.  de  Navarre,  80.  Cf.  "L.  d.  Droiz,"  569. 
But  one  may  stipulate  for  warranty  to  last  indefinitely  (fourteenth  century) 
and  in  the  end  people  came  to  dispense  with  this  special  agreement.  —  The 
duration  of  the  delay  for  the  warrantor  is  eight  days  if  he  resides  within  the 
jurisdiction:  "Us.  d' Amiens,"  49;  Laroque-Timbaud,  20;  Delisle,  "Jug.  de 
I'Echiq.,"  no.  168;  —  arbitrary:  "Et.  de  St.  Louis,"  II,  27;  Beaumanoir,  34, 
64,  65;  "Bayonne,"  102, 1;  "A.  C,  Bourg.,"  14;  Delisle,  op.  cit.,  no.  280;  "Gr. 
Cout.,"  412. 

8  "Ass.  de  J6t.,"  "C.  des  B.,"  250;  "Gr.  Cout.  Norm.,"  50;  Beaumanoir, 
34,  44;  "Bord.,"  208;  "Us.  d'Amiens,"  49. 

6  Jobbe-Duval,  p.  62;  "Sal.,"  47;  "Rib.,"  33,  75;  "Roth.,"  231;  "Wis.," 
7,  28;  "Bai.."  9,  7;  "Bordeaux,"  15;  "Us.  d'Amiens,"  49.  Death  of  the 
warrantor:  ''Sal.  extrav.,"  7  (the  withholder  does  not  incur  any  penalty); 
"Roth.,"  231   (heirs). 

550 


Topic  6]  SOME   PARTICULAR  KINDS  OF  CONTRACTS  [§  403 

go  on  with  the  trial.^  —  2d.  TJie  warrantor  appears  in  court. 
(a)  He  acknowledges  his  status  of  warrantor.  In  this  case  he 
himself  takes  the  place  of  the  accused  and  pleads,  not  in  the  name 
of  the  latter,  but  in  his  own  name;  the  accused  is  "ipso  facto" 
removed  from  the  action  and  the  accusation  falls  upon  the  war- 
rantor.^ This  rule,  which  persisted  throughout  the  old  law,^  is 
due  to  the  criminal  character  of  the  old  procedure.  This  became 
less  as  soon  as  warranty  took  upon  itself  the  aspect  of  a  civil 
action;  the  buyer  was  only  excluded  from  the  action  if  he  asked 
to  be  so.'*  But  the  obligation  of  the  warrantor  always  subsisted, 
in  the  case  of  formal  warranty,^  to  take  upon  himself  the  responsi- 
bility of  the  one  he  guaranteed,  and  not  merely  to  intervene  for 
him,  as  in  the  case  of  simple  warranty.^  —  (6)  The  warrantor 
does  not  admit  that  he  is  responsible  by  reason  of  any  war- 
ranty; he  maintains  that  he  has  not  sold  the  object  in  litigation.^ 
Equity  would  require  this  new  question  to  be  the  object  of  a  special 
action,  following  which  the  warrantor  would  be  declared  not  to  be 
responsible  or  else  compelled  to  defend  his  buyer.  This  is  indeed 
what  happens  in  the  thirteenth  century  ^  and  afterwards.  But  the 
very  old  law  was  afraid  that  this  recourse  to  warranty  was  only  a 
trick  intended  to  retard  the  settlement  of  the  principal  action, 
and  perhaps  to  allow  the  guilty  man  to  escape  the  penalty  incurred ; 
so  the  defendant  received  the  same  treatment  as  in  the  case  in 
which  the  warrantor  whom  he  had  vouched  did  not  present  him- 

^  Beaumanoir,  37,  3.  "Stil.  Pari.,"  12,  2:  reserves  the  right  to  de- 
fend himself  which  was  done  away  with  by  the  Ordinance  of  December, 
1363,  5. 

2  If  it  is  a  matter  of  a  movable  it  is  handed  over  to  him:  "Rib.,"  33,  3; 
72,  6;  Jobbe-Duval,  p.  65.  Cf.  "Roth.,"  232;  "Burg.,"  83,  2;  " Sachsensp.," 
1,  53,  2;  3,83,  3;  "  Firmatio,"  "Bai.,"  15,  12;  Brunner,  II,  516;  commentary 
on  "Roth.,"  231;  Pertile,  IV,  252  et  seq.  —  The  "Et.  de  St.  Louis"  only  speak 
of  warranty  in  dealing  with  movables,  the  "Stil.  Pari."  in  dealing  with  im- 
movables, and  refuse  it  "in  casu  novitatis,"  18,  2.  Boutaric,  I,  33;  "Gr. 
Gout.,"  Ill,  16.  —  Gander,  "Laud,  auctoris,"  1883.     No  representation. 

3  Beaumanoir,  34,  45;  "Et.  de  St.  Louis,"  I,  95;  II,  17;  "Jostice,"  19, 
36,6;  "Bord.,"18;  "  F.  deMorlaas,"  64,224;  "Ass.  de  J6r.,"  "G.  des  B.,"  247; 
"A.  C.,  Bourg.,"  14;  Boutaric,  I,  33. 

^  Before  the  action  comes  on  for  trial. 

^  Masuer,  p.  41;  Inihcrt,  p.  137  ("rcquesta  formalis"  addressed  to  the 
warrantor).  Cf.  as  to  reclaiming  against  the  farm  tenant:  Schwalbach, 
p.  57;  Civil  Code,  1727. 

8  See  "Giving  of  Surety,"  and  "Warranty  in  the  Matter  of  Offenses": 
"Stil.  Pari.,"  12,  IS  et  seq.;  Masuer,  2,  11,  19;  "Gr.  Cout.,"  Ill,  16. 

'  Loysel,  410  (forced  sale;  all  right  to  warranty  and  then  afterwards  to 
DiS^d  th-G  forcG^ 

8  Beaumanoir,  34,  44;  63,  8;  "Ass.  de  J^rus.,"  "C.  des  B.,"  246,  250; 
J.  d'Ibelin,  131.  If  the  sale  is  not  established  the  withholder  is  condemned: 
Loysel,  699.     Cf.,  however,  37,  3;  "Et.  de  St.  Louis,"  II,  17. 

551 


§  404]  OBLIGATIONS  [Chap.  Ill 

self.  — The  Ordinances  of  1667,  S,  1/  finally  regulated  this  matter 
of  warranty.^ 

§  404.  The  Same.  —  (D)  Rescission  of  the  Sale  ^  (and  of  other 
bilateral  contracts)  by  reason  of  non-performance  by  one  of  the 
parties.'*  The  Roman  law  did  not  consider  the  sale  as  rescinded 
by  reason  of  default  in  the  payment  of  the  price  ^  unless  there 
were  a  special  clause  to  that  effect  ("lex  commissoria,"  forfeiture 
clause).^  As  this  clause  was  in  common  use  in  deeds,  our  old 
law  implied  it;  it  even  went  further  and,  taking  its  support  from 
the  Roman  text  relating  to  innominate  contracts,^  it  allowed  the 
parties  in  every  bilateral  contract  to  ask  the  courts  ^  to  rescind 
the  contract  if  one  of  the  parties  did  not  perform  his  engage- 
ment through  his  own  fault. ^  In  such  a  case  the  title  reverted 
as  matter  of  law  to  the  seller.^°  The  real  rights,  which  had  been 
granted  by  the  buyer  for  the  benefit  of  third  parties,  should  also 
have  become  void  by  virtue  of  the  maxim:  "Resoluto  jure  dantis, 
resolvitur  jus  accipientis."  But  a  distinction  was  made:  1st.  Re- 
scission is  fully  retroactive  when  it  takes  place  "  ex  causa  antiqua 

^  See  the  Commentators  on  this  Ordinance:  Berthelot,  "Evictions,"  1781; 
Isambert,  Table,  see  "Garantie"  ("Ord."  of  1559,  18,  etc.). 

^  Principal  warranty  or  principal  action,  which  is  distinct  and  brought 
against  the  warrantor  following  the  eviction;  incidental  warranty,  or  action 
in  warranty  grafted  upon  the  principal  action  in  such  a  way  as  to  settle  the 
rights  of  third  parties  and  those  of  the  warrantor  at  one  and  the  same  time. 
As  to  the  dangers  of  principal  warranty,  c/.  P.  de  Fontaines,  15,  10;  Beaumanoir, 
34,  11;  Boutaric,  I,  33,  8.  These  jurisconsults  seem  to  refuse  to  give  any  re- 
course to  the  warrantor  who  is  guilty  of  pleading  secretly.  —  Warranty  in  the 
matter  of  the  assignment  of  claims:  Jousse  on  "Ord.  civ.,"  8,  1.  —  As  a  general 
thing,  exercising  the  right  of  repurchase  "cannot  give  rise  to  any  warranty  be- 
cause the  evicted  purchaser  must  be  indemnified  by  the  person  exercising 
repurchase:  "  F.  de  Beam,"  "R.  de  Contr.,"  22;  P.  de  la  Janes,  II,  245.  — C/., 
however,  in  exceptional  cases:  "Const.  Chat.,"  51,  67,  86;  Tailliar,  "Rec. 
d'Actes,"  p.  341. 

3  Naz,  "Resolut.  de  la  Vente,"  Thesis,  1870. 

*  Disgrace,  loss  of  the  benefit  conferred  by  the  deed  and  of  the  amount 
specified  in  the  penal  clause  according  to  the  law,  "Si  quis  major,"  of  Arcadius, 
"Cod.  Theod.,"  2,  9,  3,  which  the  documents  of  the  barbarian  period  connect 
with  the  Aquillian  Stipulation:  Patd,  "Sent.,"  1,  1,  3;  "Petrus,"  IV,  27;  The- 
venin,  "Textes,"  p.  260.     Canonic  penalties. 

*  The  only  right  which  the  vendor  had  was  to  refuse  to  deliver  the  thing  sold 
so  long  as  the  purchaser  did  not  pay  him  (defense  "non  adimpleti  contractus"). 

®  In  the  South  necessity  of  the  forfeiture  clause  and  cancellation  of  absolute 
right.  Tendency  to  do  away  with  forfeiture  by  the  holder  of  a  long-term 
lease  in  default  of  payment  of  the  ground  rent:  Gui  Pape,  111;  Despeisses, 
"Dr.  seign."  4,  5,  14. 

^  Cf.,  also,  the  canon  law  (analysis  in  Naz,  p.  145). 

*  Canonic  penalties  and,  consequently,  necessity  for  a  sentence.  The 
judges  make  certain  that  the  failure  to  carry  out  is  due  to  some  fault. 

3  Dumoulin,   "Var.  Quast.,  d.  v.  o.,"  nos.  58  et  seq.;  Pothier,  "Vente," 
no.  475;  Domat,  1,  2,  12,  13;  Ferribre,  see  "Pacta  com.":  Beaumanoir,  24, 
28;  "T.  A.  C,  Bret.,"  326. 
10  Gavet,  "Th^se,"  1879. 

552 


Topic  6]  SOME    PARTICULAR    KIXDS    OF   CONTRACTS  [§  405 

et  necessaria."  2d.  The  rights  of  third  parties  continue  to  exist 
in  case  the  rescission  takes  phice  "ex  causa  nova  et  voluntaria,"  ^ 
that  is  to  say,  owing  to  a  voluntary  act  on  the  part  of  the  buyer, 
for  it  cannot  be  left  to  his  option  to  plunder  his  assignees  and 
to  go  back  on  his  engagement.  "This  is  a  very  fine  theory," 
says  Loysel,  who  is  a  partisan  of  it,  as  are  a  majority  of  our  old 
authors;  but  as  to  the  application  of  this  theory  there  was  a  great 
deal  of  discussion.    Bartolus  was  its  inventor. 

§  405.  Civil  and  Commercial  Partnerships.  —  (A)  Companies,^ 
associations,  communities,  partnerships,  in  the  old  law,  were  con- 
structed according  to  the  same  type  as  family  communities.' 
Such  were  especially  those  secret  communities  of  villeins  or  serfs  ^ 
which  are  so  well  known  by  reason  of  the  description  which  Guy 
Coquille  gives  of  them  in  the  sixteenth  century  in  his  Commentary 
on  the  Customs  of  the  Nivernais,  but  which  are  very  much  older 
than  this,  for  long  before  him  Beaumanoir  alluded  to  them  and 
showed  how  they  were  formed.  "The  company  is  formed,"  he 
says,  21,  5,  "simply  for  the  purpose  of  living  together  at  a  com- 
mon board  for  one  year  and  one  day,  because  the  movables  of  one 
and  of  the  other  are  mingled  together."  Community  life  was,  in 
fact,  the  only  condition  required  originally  in  order  that  the 
company  might  exist;  whether  they  wished  it  or  not,  whether  they 
were  relatives  or  not,^  the  fellow  inhabitants  found  themselves 
associated  together.  But  Beaumanoir  maintains  that  by  with- 
drawing their  movables  they  could  avoid  this  result;  this  is  an 
expedient  which  does  not  at  all  correspond  to  the  spirit  of  the  old 
law,  for  it  is  almost  impossible  to  live  together  a  year  without 

^  Cancellation  "ex  tunc"  or  "ex  nunc":  L.  3  Dig.,  "quib.  mod.  pig."; 
Loyseau,  "D^guerp.,"  4,  3,  6;  Dumoulin,  I,  33,  37.  Interest,  especially  from 
the  point  of  view  of  the  seigniorial  profits  (transfer  tax).  Keeping  of  admin- 
istrative deeds  (leases) :  Dumoulin,  "  Reg.  cancell.,"  no.  180;  Coquille,  "  Quest.," 
II,  143;  Pothier,  "Fiefs,"  noa.  291,  330  ("Emptor  non  tcnotur  stare  colono"). 
—  Cf.  the  distinction  made  by  the  Glossators  between  the  "verba  directa" 
(returning,  of  absolute  right,  of  the  ownership)  and  the  "verba  obliqua" 
(necessary  surrendering),  abandoned  in  the  sixteenth  century;  between  the 
cancellation  "ipso  jure"  and  "per  sententiam"  (less  important). 

*  "Cum-panis"  ("compainz,"  "comi)agnon,"  company):  see  Diez;  Du 
Cange,  see  "Companium,"  etc.  We  still  say  "Company  of  Jesus,"  "railroad 
companies,"  etc. 

'  Gierke,  " Genossenschaftsrecht,"  1881;  Ashley,  I,  86;  II,  79  (trades). 

*  Cf.  the  servile  communities;  Customs  in  the  "Conf6r.  de  Guenois,"  I, 
599;  Masuer,  28,  14;  Lebrun,  "Comnumaut6,"  709;  see  Guyot;  Viollet, 
751;  Glasson,  VII,  639;  Larcher,  "The.se,"  1875;  Boucomont,  Lnssnrre, 
Mahler,  etc.  —  Cf.  "consortium"  at  Rome:  Poisnel,  "N.  R.  H.,"  Ill,  431; 
Girard,  570;  Athens,  Beauchet,  IV,  340. 

*  Communitiesof  brothers,  relatives:  Mont-dc-Marsan,  "Soci6t6s";  "A.C., 
Bord.,"  44,  etc.;  sons-in-law  and  fathers-in-law:  "Niv.,"  23. 

553 


§  405]  OBLIGATIONS  [Chap.  Ill 

some  of  the  movables  becoming  confused.  Personal  belongings 
which  were  not  liable  to  such  confusion  stayed  outside  of  the  part- 
nership; on  the  other  hand,  movables  and  acquests  came  under 
it.  As  a  general  rule,  the  community  had,  like  the  family,  a 
head  charged  with  administering  it,  whose  powers  remind  one  of 
those  of  the  head  of  the  family.  This  master,  or  "head  of  the 
loaf,"  who  is  the  eldest  of  the  members,  is  elected  because  of  being 
the  elder,  or  else  he  is  one  of  the  associates  who  is  expressly  ap- 
pointed. He  administers  the  community  within  and  represents  it 
without;  he  has  extensive  powers  and  binds  his  associates  as  far 
as  their  movables  are  concerned  when  he  contracts  for  the  bene- 
fit of  the  partnership.  In  important  matters,  such  as  the  buying 
of  immovables,  he  consults  with  his  associates;  "they  all,  eating 
of  one  bread,  sleeping  under  one  covering,  and  seeing  each  other 
every  day,  he  is  ill  advised  or  too  proud"  if  he  does  not  consult 
with  them.  This  artificial  group  is  perpetuated  in  the  same  way 
as  the  natural  group  of  the  family,  "owing  to  the  subrogation  of 
the  persons  who  are  born  therein  or  are  called  into  it  from  out- 
side"; at  the  death  of  one  of  the  associates  there  is  no  partition  of 
the  common  lands;  his  relatives  who  are  not  members  of  the  com- 
munity cannot  claim  the  undivided  part  which  would  have  been 
his.  The  dissolution  of  the  community  takes  place  ordinarily  by 
reason  of  the  decision  of  the  associates  to  live  separately:  "The 
loaf  separates  the  villein;  fire,  salt  and  bread  separate  the  man 
in  mortmain."  We  have  already  seen  the  reasons  why  these  asso- 
ciations were  rarely  found  at  the  end  of  the  Old  Regime.  They 
are  already  suspicious  to  Beaumanoir;  he  looks  upon  them  as  very 
dangerous  and  declares  that  many  people  were  deceived  by  them; 
the  rich  man  who  takes  in  his  poor  relation  "because  of  pity" 
finds  him  claiming  half  of  his  movables,  and  a  man  who  came  in 
not  worth  forty  "sols"  goes  away  taking  with  him  two  hundred 
livres.  In  the  sixteenth  century  they  are  still  numerous,  but  the 
disfavor  with  which  they  are  looked  upon  increases,  as  Loysel's 
rules,  378  et  seq.,  bear  witness:  "  If  one  goes,  all  go"  ^  (which  makes 
the  partnership  very  fragile,  whereas  in  other  times  the  departure 
of  one  associate  could  not  have  had  any  more  effect  than  the  de- 
parture of  one  member  of  a  family);  "He  who  has  a  companion 
has  a  master";  "Out  of  community  possessions  one  cannot  make 
much."     Jurisprudence  is  hostile  to  them,  and  the  Ordinances 

»  "Excepting,"  says  Guy  Coquille,  "if  the  man  going  out  has  naismanaged 
affairs." 

554 


Topic  6]  SOME   PARTICULAR  KINDS   OF  CONTRACTS  [§  40G 

require  a  written  deed  to  establish  the  existence  of  every  such 
partnership.^ 

§  406.  The  Same.  —  (B)  Commercial  Partnerships.  They  have 
a  history  which  is  very  complex  and  has  been  very  much  disputed. 
The  brief  summary  which  is  given  here  only  serves  to  point  this 
out.  Om*  old  law,  here  differing  from  the  Roman  law,  considers 
the  property  brought  in  by  the  associates  as  forming  a  mass  which 
is  appropriated  for  the  payment  of  the  creditors  of  the  partner- 
ship to  the  exclusion  of  the  personal  creditors  of  the  associates. 
]\Iust  one  conclude  from  this  with  Straccha  that  commercial  part- 
nerships form  a  "corpus  mysticum,"  and  translate  this  expres- 
sion by  saying  that  they  constitute  legal  persons?  Scaccia  and 
Emerigon  express  themselves  in  this  way.  However,  it  is  not  very 
certain  that  the  idea  of  the  civil  personality  of  commercial  part- 
nerships was  forced  upon  the  old  law  with  regard  to  its  other 
consequences.^  Perhaps  the  peculiarity  which  we  have  pointed 
out  can  be  accounted  for  by  a  sort  of  implied  engagement  for  the 
benefit  of  the  creditors  of  the  partnership. 

1st.  Partnership  in  its  collective  name  is  like  joint  and  several 
ownership;  the  associates  are  held  jointly  and  severally  and  with- 
out limit  for  the  debts  of  the  partnership.  They  act  all  together 
and  all  participate  in  partnership  acts;  or  else,  to  make  matters 
more  simple,  one  of  them  acts  as  "institor"  on  behalf  of  the  part- 
nership and  in  the  collective  name  of  all  of  its  members;  he  has  the 
right  to  bind  them  without  having  called  them  together  and  con- 
sulted them;  he  signs  with  his  name  and  with  theirs;  this  signa- 
ture or  name  of  the  partnership  had  to  be  shortened  when  the 
number  of  associates  was  too  great;  we  say  "So  and  So  &  Co." 
Bartolus  maintains  already  that  the  formula,  "Titius  et  socii" 
was  an  old  one  in  his  time,  and  that  its  use  had  the  effect  of  carry- 
ing with  it  the  joint  and  several  obligation  of  all  the  associates, 
even  of  those  who  were  not  mentioned  in  it;  and  this  no  doubt 
was  for  the  good  reason  that  their  names  are  virtually  included 

1  Ordinance  of  Moulins,  54  (100  pounds);  1667,  22,  2;  1673,  4,  1;  Civil 
Code,  1834,  1837  (prohibition  in  the  case  of  property  to  be  acquired  in  the 
future).  Cf.  "Code  de  la  Convention,"  5,  2,  22;  "Orl6ans,"  217.  —  Dis- 
cussion in  Lebrun,  Ragueau,  op.  cit. 

2  Post,  "Legal  persons."  The  personality,  which  is  not  dealt  with  in  the 
Ordinance  of  1673,  nor  in  its  commentaries,  makes  its  appearance  in  partner- 
ships having  shares  by  way  of  a  privilege:  Isambert,  XVII,  319  (in  1656); 
XXVIII,  19  (in  1785).  —  "Dec.  Rot.  Gen.,"  7,  9.  10;  4,  13;  Scaccia,  "Qu.," 
450;  Emerigon,  "Assur.,"  I,  324;  Casaregis,  III,  156;  Vighi,  "Person.  Giur. 
d.  Soc.  Com.,"  1900. 

555 


§  406]  OBLIGATIONS  [Chap.  Ill 

within  it}  If  the  partnership  has  a  name  of  its  own,  then  it  has  a 
distinct  personaUty,  which  is  independent  from  that  of  the  as- 
sociates; or,  at  least,  if  one  does  not  go  so  far  as  this,  one  can  con- 
ceive that  it  is  possible  to  give  a  name  to  a  collection  of  interests; 
it  is  difficult  not  to  recognize  the  fact  that  the  tendency  of  the  part- 
nership to  form  a  civil  person  is  admitted  in  this  very  fact.  Fre- 
quently, and  especially  in  order  to  plead,  the  associates,  in  their 
collective  name,  instead  of  acting  themselves,  have  an  agent  in- 
vested with  the  power  of  making  use  of  the  partnership  name. 

2d.  The  limited  partnership  ("en  commandite"),  thus  called 
from  the  word  "commendare,"  to  confide,  to  loan,^  which  is  re- 
lated to  the  lease  of  a  farm  and  livestock,  bottomry  loan,  to  the 
loan  for  a  seaman's  venture,  which  is  well  known  in  sea  trade  on 
the  Mediterranean  in  the  tenth  century,  but  which  has  precedents 
in  the  legislation  of  antiquity,^  involves  both  a  loan  and  a  part- 
nership. It  assumes,  just  as  a  loan  does,  that  a  capitalist  fur- 
nishes value  to  a  third  party,  and  that  this  third  party  draws 
a  portion  of  it  at  will  (to  carry  out  the  object  fixed  by  the  charter 
of  the  partnership).  Thenceforth  this  third  party  is  the  only  one 
known  to  the  public,  and  the  capitalist  is  only  responsible  to  the 
amount  of  his  share  of  the  capital,  just  as  a  lender  would  be.^  In 
other  respects  the  limited  partnership  is  like  the  ordinary  part- 
nership; the  profits  are  divided,  the  losses  are  sustained  by  the 
silent  partner  and  the  capitalist :  the  one  ventures  his  labor  and  his 
fortune;  the  other  runs  the  risk  of  not  regaining  his  capital  (as 
every  lender  "ad  risicum  maris").  It  is  from  this  point  of  view 
that  the  formation  of  this  sort  of  partnership  escaped  the  prohi- 
bition which  affected  lending  at  interest  in  the  Middle  Ages,  and 
it  is  because  of  this  that  it  was  possible  for  it  to  be  developed  later 
on.  The  Ordinances  of  1673  accentuated  the  character  of  the 
partnership  in  the  case  of  a  limited  partnership  by  compeUing  the 
pubhcation  of  the  articles  of  the  partnership. 

»  Goldschmidt,  p.  243  ("nome,"  "dita,"  "firma"),  273;  Balde,  "Cons.," 
II,  191,  n.  2:  "ex  consuetudine  mercatorum  unus  scribit  nomen  alterius." 

2  "L.  Wis.,"  Index,  see  "Commendare";  Du  Cange;  Ragueau,  see  "Comm. 
de  B6tail." 

»  Texts  in  Goldschmidt.  Cf.  "Ass.  de  J6rus.,"  "C.  des  B.,"  Ill;  Statute 
of  Marseilles  (thirteenth  century),  III,  19;  Saleilles,  "Hist,  des  Soci6tes  de 
Commerce"  ("Ann.  de  Dr.  comm.,"  1895);  Speck,  "Handelsges.  d.  Alter- 
thums,"  1900. 

*  A  thing  which  has  contributed  a  great  deal  towards  the  introduction  of 
the  idea  of  a  responsibility  limited  to  the  share  of  capital  is  just  that  very  pro- 
hibition of  lending  at  interest;  the  capitalist,  not  being  able  to  lend,  forrns  a 
partnership,  but  does  not  wish  to  incur  any  more  risk  than  if  he  were  lending. 

556 


Topic  6]  SOME   PARTICULAR   KINDS   OF   CONTRACTS  [§  40G 

3d.  The  name  of  anonjmious  partnership,  which  was  given 
to  a  Hmited  partnership,  was  also  appHed  equally  to  another 
kind  of  secret  partnership,  the  joint  account,  formed  ordinarily  for 
one  transaction  only;  this  transaction  is  personal  to  the  one  who 
acts,  but  after  it  has  been  carried  out  he  divides  the  profits  and 
losses  with  his  associates.  These  partnerships  have  no  partner- 
ship signature  and  no  name;  they  do  not  constitute  a  civil  person. 

4th.  Partnerships  with  shares  of  stock,  or,  rather,  companies,'^ 
established  with  the  object  of  developing  colonies,  endowed  with 
special  privileges  and  authorized  by  public  authority  (and  hence 
to  be  regarded  as  a  public  rather  than  a  private  enterprise),  were 
modeled  after  those  great  banks  which  existed  at  the  end  of  the 
Middle  Ages.^  As  in  the  latter,  the  capital  was  divided  into  parts, 
which  could  be  transferred,  or  shares  of  stock;  and  the  responsibil- 
ity of  each  associate  was  limited  to  his  share  of  the  capital.  These 
were  true  partnerships  of  capital,  as  is  said,  because  the  person- 
ality of  the  associates  makes  no  difference  and  they  are  not  under 
any  personal  responsibility;  they  are  in  contrast  from  every  point 
of  view  to  partnerships  "intuitu  personse,"  and  the  "consortia"  or 
"  f raternitates  "  of  the  very  old  law. 

^  Bonassieux,  "Lesgrandes  Compagniesde  Commerce/'  1892.  —  "Monte," 
"Maona,"  in  Italy;  Bank  of  St.  George  at  Genoa  in  the  fifteenth  century; 
the  EngUsh  East  India  Co.,  1599,  etc.  Afterwards  other  enterprises:  mines, 
canals,  farms  and  public  carriages,  arming  of  ships,  etc. ;  Isambert,  see  Table, 
Lescoeur,  "Soc.  anon.,"  1877;  Viollet,  p.  766;  Goldschmidt,  290;  Lehmann, 
"Gesch.  u.  Entwick.  d.  Aktienr.,"  1895. 

2  Various  systems  as  to  the  origin  of  these  partnerships.  Cf.  partnerships 
of  publicans  at  Rome  (to  which  the  principle  of  limited  responsibility  is  un- 
known). Goldschmidt  connects  them  with  the  Italian  partnerships  for  the 
farming  out  of  taxes  in  the  Middle  Ages,  partnerships  that  needed  to  put 
their  capital  together,  and  which  divided  them  into  "partes,"  "loca,"  in 
imitation  of  that  which  took  place  when  States  borrowed  from  individuals 
in  the  case  of  pressing  necessity;  the  concessions  of  taxes  or  of  monopolies 
were  for  them  a  means  of  paying  their  debts.  Fourteenth  century:  "Maona 
dei  Giustiniani"  at  Genoa. 


557 


§407] 


OBLIGATIONS 


[Chap.  Ill 


Topic  7.   Means  of  Enforcement  on  the  Person  and 
Personal  Surety 


§  407.  Voluntary  Satisfaction. 

§  408.  Compulsory  Satisfaction. 

§  409.  The  Same :  Execution  upon  the 

Person.    (A)  "Self-help." 
§410.  The  Same:  (B)  Intervention  of 

the  Law, 


§  411.  Imprisonment. 

§  412.  The  Surrender  of  Possessions. 

§  413.  Suretyship. 

§  414.  Hostage. 

§  415.  The"Fidejussio"or"Pl^gerie." 

§  416.  Modern  Suretyship. 


§  407.  Voluntary  Satisfaction.  —  In  the  very  old  law  the  obli- 
gation is  extinguished  by  means  of  a  "solutio"  or  a  "  satisfactio,"  a 
direct  payment,  or  some  act  which  the  creditor  holds  as  being  its 
equivalent.  Prescription  which  extinguishes  or  liberates  seems  to 
have  been  unknown  in  matters  relating  to  offenses;  quarrels  be- 
tween one  family  and  another  were  carried  on  indefinitely;  the 
right  of  vengeance  could  not  be  lost  by  prescription,  and  the  man 
who  delayed  in  carrying  it  out  did  not  give  it  up,  but  waited  for  a 
favorable  occasion  to  take  his  enemy  unawares.  Prescriptions 
by  rules  of  procedure  began  to  make  their  appearance  in  propor- 
tion as  the  intervention  of  the  State  in  the  matter  of  justice  became 
more  active  and  more  efficacious;  in  the  end  its  system  of  pre- 
scription was  borrowed  from  the  Roman  law,^  just  as,  with  many 
modifications,  set-ofE  and  cross-action  ^  were  borrowed  from  it. 

'  Releasing  or  Extinguishing  Prescription.  Loysel,  713,  714;  "Gr.  Cout.," 
p.  198;  Boutaric,  I,  20,  27,  49;  Masuer,  22.  Cf.  Dig.  X,  2,  26.  As  a  gen- 
eral thing,  the  rules  and  their  duration  (30  years)  are  drawn  from  the 
Roman  law.  Cf.,  however,  short  prescriptions:  10  years  ("Ord."  June,  1510, 
71:  actions  for  rescission);  five  years  {id.;  arrears  of  constituted  rents; 
Decree  of  Aug.  20,  1792,  rents  on  land;  Decree  of  Aug.  24,  1793,  life 
rents);  one  year  and  six  months  ("Ord."  June,  1510,  67,  18),  etc.;  "Cout. 
de  Paris,"  126,  127;  "Ord."  of  1673,  1,  9;  see  Fernere,  Guyot;  Pothier,  I,  337; 
II,  374  (ed.  B);  Fertile,  IV,  483  (texts).  — Hebrews:  Sabbatical  year:  Dareste, 
"Etudes,"  p.  48;  "Ac.  Sc.  M.,"  1894. 

2  Set-off  (A  owes  B  100;  B  owes  A  100;  both  debts  are  extinguished) 
and  Cross-action  (A  sues  B,  and  B  in  a  cross-action  demands  from  A  what 
is  due  him,  without  bringing  any  special  action  against  him,  which  would 
perhaps  be  brought  before  other  judges,  and  which  would  at  any  rate  ne- 
cessitate a  preliminary  set  of  proceedings,  delays,  etc.).  The  Romanists 
admitted  the  cross-action  (even  "ex  alia  causa")  and  set-off,  but  were 
unsettled  as  to  whether  the  set-off  ought  to  be  legal  (extinction  of  abso- 
lute right  of  both  the  liquidated  debts  for  things  that  could  be  restored 
in  kind,  simply  because  of  the  fact  that  they  coexisted)  or  judicial  (brought  up 
in  court  and  pronounced  upon  by  the  judge:  Bartole  and  Doneau).  Cujas 
caused  the  system  of  the  legal  set-off  to  prevail  in  France  (cf.  "ipso  jure" 
in  "Inst.  Just.,"  4,  6,  30):  "Cout.  de  Milan,"  in  1396,  Art.  117.  Both  the 
set-off  and  the  cross-action  were  also  accepted  by  the  Canon  law:  Dig.  X, 
2,  4;  Lancelot,  "Inst.,"  3,  9;  P.  Fournier,  "Offic,"  p.  111.  — On  the  other 

558 


Topic  7]         MEANS   OF   ENFORCEMENT   ON   THE   PERSON  [§  407 

Upon  principle,  the  debtor  is  held  bound  to  pay  or  to  give  exactly 
what  is  promised,  unless  the  creditor  consents  to  receive  some- 
thing else  or  liberates  him  from  his  undertaking  without  demand- 
ing anything,^  Distraint  in  kind  is  thus  the  rule;  but  it  often 
happens  that  debts  in  money  are  paid  in  movables  or  in  domestic 
animals,  because  movables  are  looked  upon  almost  like  things  that 
may  be  restored  in  kind,  and  in  the  early  social  state  the  domestic 
animal  serves  as  money.^  If  he  fails  to  pay  or  to  satisfy  the  cred- 
itor, the  debtor  "ex  delicto"  again  exposes  himself  to  private 
vengeance  in  the  very  early  law;  the  failure  to  perform  a  con- 
tract is  held  as  being  itself  an  offense  and  carries  with  it  the  same 
consequences  (slavery  for  debts,  payment  in  services,  see  infra). 
In  proportion  as  the  old  conception  of  an  obligation  being  an  of- 
fense disappears,  the  debtor  who  does  not  pay  is  held  liable  simply 
for  damages,  —  the  kind  called  compensatory.^  "  In  every  trans- 
action it  is  to  one's  interest  to  make  restitution."  ■*  In  the  same 
way  in  the  case  of  delay  in  performance,  the  debtor  who  was 
liable  to  pay  a  fine  during  the  barbarian  period  pays  in  later  law 
only  damages,  the  kind  called  damages  for  delay.^    To  tell  the 

hand,  the  Customary  law  rejected  both  of  these  institutions;  Loysel,  704: 
"One  debt  does  not  prevent  the  other  from  existing";  703:  "A  cross-action 
cannot  take  place"  (in  the  lay  court).  These  rules  are  consistent  with  the 
formalistic  systems  and  are  to  be  found,  for  example,  at  Rome.  Perhaps 
they  are  also  due  to  the  multiplicity  of  the  old  jurisdictions  and  their  patri- 
monial character;  the  judges  quarreled  with  one  another  over  jurisdiction; 
now  the  cross-action  allowed  the  ecclesiastical  judges  to  bring  before  them 
cases  which  should  have  been  submitted  to  the  seigniorial  judges;  and,  con- 
versely, the  seigniorial  judges  could  by  this  same  means  pass  upon  religious 
actions  or  upon  matters  appertaining  to  the  royal  judges,  etc.:  Beaurnanoir, 
9,  47;  P.  de  Fontaines,  29,  '5  (mere  defenses);  "Ass.  de  Jer.,"  "C.  des 
B.,"  51;  Boutaric,  I,  60.  In  the  fourteenth  century  set-off  in  the  case  of 
liquidated  debts  was  allowed  at  the  Chatelet  of  Paris:  Desmares,  136,  137; 
"Cout.  Not.,"  Ill,  120.  And  later  on  in  the  seventeenth  century  the  "C.  de 
Paris"  ("A.  C,"  74;  "N.  C,"  75)  was  interpreted  to  mean  that  it  admitted 
of  the  legal  set-off.  Under  the  rule  of  other  Customs  more  faithful  to 
the  old  law  the  set-off  could  only  take  effect  by  virtue  of  letters  of  the 
king.  As  to  the  cross-action,  the  "A.  C,  Paris,"  75,  still  prohibited  it;  the 
"  N.  C,"  Art.  106,  only  authorized  it  under  certain  conditions:  some  connection 
between  the  two  claims,  and  that  the  later  one  must  be  a  defense  again.st  the 
earlier.  Court  practice  places  a  broad  interpretation  upon  these  provisions 
(controversy);  Pothier,  X,  51;  II,  334  (ed.  B.);  Lair,  "Compens.,"  1862; 
Desjardins,  id.,  1864  (lengthy  details);  Chaisemartin,  p.  259. 

1  Payment  of  a  debt,  novation.  Cf.  Gaudemet,  "Transport  de  Dette," 
1898;  Stobbe,  §  181.  — Real  offers,  "Arch.  Giur.,"  LXVI,  322. 

^  Legal  tariffs,  —  for  example,  "Rib.,"  36,  11.  —  Money  changing:  "Tract. 
ill.  let.,"  XII;  Loysel,  680;  "What  is  equal  in  value  to  gold  is  gold." 

3  Loening,  Sickel,  op.  cit. 

*  Loysel,  414;  Dareste,  7,  77,  79;  Ragueau,  see  "Eramme." 

6  Endemann,  II,  243  (bibl.);  G.  Durand,  "Spec,"  II,  3;  DumouUn,  "Tr. 
de  eo  quod.  int.  Op.,"  Ill,  67  et  seq.  (ed.  B.);  Stobbe,  §  182.  —  The  rule:  "Dies 
interpellat  pro  homine"  was  sanctioned  in  Germany  by  the  Imperial  Chamber, 

559 


§  407]  OBLIGATIONS  [Chap.  Ill 

truth,  during  the  barbarian  period  it  is  not  distraint  alone  that 
extinguishes  the  obhgation ;  owing  to  formaUsm,  it  is  extinguished 
by  means  of  a  proceeding  analogous  to  that  which  served  to 
create  it :  the  creditor  who  has  acquired  all  his  rights  by  means  of 
the  "festuca"  gives  them  up  by  throwing  the  "festuca";  if  he  has 
acquired  them  by  delivery  of  the  "carta,"  he  gives  them  up  by 
restoring  the  "carta."  The  writing  " evacuatoria "  is  equivalent 
to  the  giving  of  the  "carta"  when  the  latter  has  been  lost.^  It  is 
not  a  rare  thing  to  have  drawn  up,  when  the  obligation  is  to  be 
cancelled,  an  "epistola  securitatis,"  or  promise  not  to  trouble  the 
debtor  any  further,  to  hold  him  as  discharged  ("quietus")  from  an 
offense  which  he  has  committed  and  which  laid  him  open  to  venge- 
ance or  composition.^  From  thence  arose  the  employment  of 
releases,  a  convenient  means  of  establishing  the  release  of  the 
debtor  when  the  giving  of  the  paper  or  making  use  of  the  "fes- 
tuca" had  ceased  to  be  required  "ad  solemnitatem."  ^ 

§  408.  Compulsory  Satisfaction.  —  In  the  very  old  law  it  is  the 
person  of  the  debtor,  his  body,  which  is  primarily  responsible  for 
the  payment  of  his  debt;  ^  by  an  extension,  his  movables  are  also 
made  liable,  for  "mobilia  ossibus  inherent";  in  this  sense  it  is  true 
to  say  "he  who  binds  himself  binds  what  is  his";  but  the  immov- 
ables of  the  debtor  are  not  sufficiently  his  own  for  the  creditor  to 
be  able  to  reach  them.^  The  history  of  compulsory  satisfaction 
may  be  summed  up  in  the  overthrow  of  these  ideas.  The  creditor 
no  longer  pursues  the  person  of  the  debtor,  but  pursues  his  be- 
longings; in  fact,  the  latter  is  no  longer  considered  as  a  guilty 

1595;  it  was  looked  upon  as  being  in  accord  with  the  old  Germanic  law  ("L. 
Sal.,"  50) ;  c/.  contra,  Romanists  and  ItaUan  statutes;  but  see  "  Petrus,"  IV,  51; 
Pothier,  loc.  cit. :  according  to  our  customs  a  debtor  is  only  considered  as  having 
a  suit  brought  against  him  when  he  is  summoned  at  law.  Loysel,  679.  —  As 
to  respites  and  excuses  cf.  "Procedure":  Beaumanoir,  25.  —  "Siete  Part.," 
5,  1,  8;  14,  8.  —  Penal  clause  ante.  Examples  in  Thevenin,  "Textes,"  p.  260; 
placing  (in  arbitration).  Cf.  Glasson,  "Proced.  Civ.,"  II,  123  ("astreinte"): 
to  pay  so  much  for  each  day  of  delay. 

^  Roziere,  no.  378  et  seq. ;  Thevenin,  no.  33. 

2  "Form.  Andec,"  V,  39,  42  et  seq.;  "Tur.,"  .38;  "Bign.,"  8,9;  "Liut.," 
19;  Mnrculfe,  II,  18.  One  also  renounces  vengeance  "per  festucam":  "L. 
Rom.  Cur.,"  24,  2;  Thevenin,  no.  137;  Brunner,  11,444;  see  Ragueau ;  Du 
Cange,  see  "Assecur.";  Loysel,  821;  "Gr.  Cout.,"  p.  391,  867;  Esmein,  "Rev. 
trim,  de  Dr.  Civ.,"  1903;  Berryer,  "These,"  1903. 

3  Fertile,  IV,  478;  Beaumanoir ;  letters  of  discharge  (34,  21;  43,  39). 

*  The  debtor  of  old  times  had  nothing  before  him  but  death  or  slavery;  he 
was  lucky  if  his  creditors  did  not  eat  him  up  alive,  as  we  hear  of  in  certain 
legends.  Compare  in  our  time  the  American  debtor,  who  grows  rich  by  going 
through  bankruptcy. 

5  "Roisin,"  p.  48;  "A.  C,  Anjou,"  ed.  B.-B.,  II,  338;  "Olim,"  IV,  1486; 
"Const,  du  Chat.,"  no.  73;  Kohler,  65. 

560 


Topic  7]         MEANS   OF   ENFORCEMENT   ON   THE   PERSON  [§  408 

man  upon  whom  one  seeks  to  avenge  oneself;  value  is  claimed 
from  him  and  his  inheritance  must  furnish  it.  Thus  execution 
on  possessions  passes  into  the  foreground;^  but  it  at  first  affects 
movables  alone;  immovables  are  available  only  as  a  last  resort, 
for  only  as  immovable  property  has  come  into  the  hands  of  indi- 
viduals has  it  been  possible  to  authorize  creditors  to  pay  them- 
selves out  of  this  sort  of  property. 

To  the  means  of  constraint  which  we  have  just  referred  to  were 
added  proceedings  of  a  spiritual  nature,  —  excommunication,^ 
for  example,  which  frequently  takes  place  in  the  Middle  Ages,  at 
least  if  there  is  "contumacia"  or  fraud  ;^  its  consequence  is  the 
refusal  of  religious  burial.^  By  a  reversion  to.  pagan  ideas,  which 
very  closely  accords  with  this  redoubtable  result  of  ecclesiastical 
censure,  the  creditor  attaches  the  corpse  of  the  insolvent,  whether 
he  be  excommunicated  or  not;  or,  at  least,  he  offers  opposition  to 
its  burial;  thus,  they  are  reduced  to  burying  the  body  in  a  ditch, 
where  it  is  a  prey  to  the  beasts.  In  the  eyes  of  the  people  there  is 
no  more  strict  duty  binding  upon  the  relatives  of  the  debtor  than 
that  of  indemnifying  the  creditor  so  as  to  give  to  the  dead  the 
last  rites;  w^hen  performed  by  strangers,  this  is  an  act  so  praise- 

1  Unless  the  creditor  should  have  reserved  for  himself  the  right  of  first  of 
all  carrying  out  execution  upon  the  person:  "Sachseasp.,"  Ill,  39. 

2  See  Da  Cange ;  Fertile,  IV,  502;  Pasquier,  "Inst.,"  p.  540.  We  find 
formulae  of  excommunication  "ob  debita"  in  a  book  of  forms  of  deeds  printed 
in  Rome  about  1479  or  1480  without  date  or  title;  in  fact,  debtors  submitted 
in  advance  to  excommunication  in  case  they  should  not  carry  out  their  engage- 
ments; but  the  ecclesiastical  judges  could  also  excommunicate  them,  even  if 
there  were  no  clauses  of  this  nature.  It  was  also  agreed  that  the  excommuni- 
cation should  take  place  ipso  facto :  "Tr.  Univ.  jur.,"  XIV;  Ugolini,  "De 
Censuris,"  1597;  Eveillon,  "Tr.  des  Excommunic,"  1672;  Kohlcr,  pp.  61,  69. 
We  find  them  even  among  the  Assyrians,  thousands  of  years  before  Christ: 
Kohler,  p.  64;  Osenbriiggen,  "Stud.,"  p.  333:  adjournment  until  the  Last 
Judgment  in  the  Valley  of  Jehosayihat.  —  C/.,  conversely,  the  debtor  who  has 
sought  sanctuary  in  a  church:  "Wis.,"  9,  3,  4. 

'  Dig.  X,  5,  23,  3;  Hostiensis,  "De.  Cess.  bon.  et.  de  sent.  Excom."; 
"Bourges,"  156;  "Gr.  Cout.,"  611;  Beaumanoir,  11,  32;  "Reg.  de  Cerisy," 
no.  431,  etc.     Obligation  of  "nisi." 

*  Other  consequences:  incapacity  of  appearing  in  court  even  before  the  lay 
tribunals:  Dig.  X,  5,  29;  "in  VI,""  V,  11;  "Mem.,"  by  P.  de  Cugnieres,  Arts. 
1  and  12;  "Songe  du  Verger,"  II,  203.  Cf.,  however,  "Gr.  Cout.,"  389.  This 
custom  was  so  well  established  that  in  the  sixteenth  century  it  had  to  be  pro- 
hibited: "Ord."  of  Jan.,  1560,  IS;  "N.  C.,Bret.,"  9;  D'.4r<7en^^,tit.  "des  just.," 
Art.  6;  Fevret,  "  Abus,"  7,  2.  The  secular  judges  first  of  all  asked  the  ecclesias- 
tical superior  to  absolve  the  imprudent  debtor  who  had  submitted  himself 
to  excommunication;  if  the  sujicrior  refused  to  do  so,  he  was  then  compelled 
to  by  distraining  upon  his  secular  possessions:  "Libert.  Egl.  Gall.,"  35.  In 
order  to  simplify  matters  the  Parliaments  themselves  legislated,  dealing  with 
the  precautionary  absolution;  the  latter  fell  into  disuse  and  Tiraqueau  tells 
us  that  persons  who  had  been  excommunicated  had  no  difficulty  in  jileading 
before  the  lay  tribunals  ("de  retr.  gent.,"  8,  1,  276).  Loysel,  709.  The 
same  progress  was  made  in  the  matter  of  oaths. 

561 


§  408]  OBLIGATIONS  [Chap.  Ill 

worthy  that  it  blots  out  the  very  greatest  crimes.^  Outside  of 
ancient  France,  rehgion  furnished  individuals  with  other  weapons 
by  means  of  which  to  overcome  the  resistance  of  their  debtors :  such 
as  that  strange  procedure  of  fasting,  which  was  practised  in  an- 
cient Ireland  and  among  the  Persians.  The  creditor,  standing  be- 
fore the  door  of  his  debtor,  refused  to  take  any  nourishment  so 
long  as  he  was  not  paid,  however  weak  he  might  be;  thus  he  finally 
overcame  the  most  powerful.  India  had  perfected  this  custom; 
instead  of  fasting  himself,  the  creditor  sent  a  Brahmin  to  fast  in 
his  place;  this  fasting  by  procuration  was  still  more  efficacious.^ 

Taking  satisfaction  originally  always  assumed  the  form  of  the 
"captio,"  seizure,  "nam,"  and  hence  was  necessarily  individual, 
even  when  there  were  several  creditors;^  the  one  who  distrained 
excluded  all  the  others,'*  excepting  that  when  he  had  been  paid 
off,  they  could  in  their  turn  seize  whatever  possessions  of  the 
debtor  remained.  This  system  of  individual  prosecution  made 
payment  the  prize  of  the  race  and  fostered  fraudulent  collusion 
between  the  debtor  and  certain  of  his  creditors;  he  favored  the 
most  harsh  and  the  most  dishonest  creditor  and  sacrificed  with- 
out reason  the  bulk  of  the  others.  This  was  particularly  revolting 
in  case  of  failure,^  that  is  to  say,  when  insolvency  came  to  light 

1  As  to  the  arrest  of  the  corpse,  cf.  Esmein,  "Melanges,"  245;  Justinian 
alludes  to  it:  "Cod.  Just.,"  9,  19,  6;  "Nov.,"  60  (in  537).  St.  Ambroise, 
"De  Tobia,"  10.  Stories  of  the  people,  for  example,  John  of  Calais  in  Balde, 
"Contes  pop.  de  la  Gasc,"  etc.;  De  Hinojosa,  "El  Archivo,"  1892;  Altamira, 
"Hi«t.  Esp.,"  II,  185  (Navarre,  fifteenth  century);  Kohler,  p.  19. 

^  If  the  debtor  allows  him  to  die  of  starvation  ("a  fortiori"  if  he  kills  him) 
he  is  responsible  for  his  death;  the  spirit  of  the  creditor  will  never  leave  that 
place,  according  to  the  old  Animist  beliefs,  and  will  torment  him  and  liis  eter- 
nally. Survivals  of  this  in  the  Middle  Ages:  the  "Lay  of  Ignaure,"  William 
of  the  Falcon,  an  Irish  legend  of  the  three  clericals  and  the  cat  (to  fast  against 
the  wishes  of  God);  Gaidoz  in  "Melusine,"  IV,  305,  406  {cf.  VII,  55,  182,  etc.); 
W.  Stockes,  "Academy,"  1885,  169;  Sumner  Maine,  "Inst,  prim.,"  p.  370; 
D'A.  de  Jubainville,  "Litterat.  Celt.,"  VII,  245  (Christian  origin  in  Ireland); 
Dareste,  "Etudes,"  p.  84;  Kohler,  15. 

'  Garraud,  "De  la  Deconfiture,"  1880.  Bibl.  in  Camus  and  Dupin,  "Fail- 
lites."  Cf.  Fertile,  VI,  384;  Seuffert,  "Concursr.,"  1888;  Stohhe,  "Gesch.  d. 
jilt.  D.  Konkurspr.,"  1888. 

^  Beaumanoir,  34,  52;  "Gr.  Cout.,"  c.  10;  "Artois,"  115;  "Ord.  des  Mai- 
ours"  (of  Metz),  "N.  R.  H.,"  1878;  "Ass.  de  Jerus.,"  "C.  des  B.,"  78. 

5  Beaumanoir,  34,  52;  54,  6;  Boutaric,  I,  46;  27.  "Paris,"  1880:  failure 
is  when  the  possessions  of  the  debtor  are  not  sufficient  to  satisfy  the  apparent 
creditors;  Loysel,  685;  "Ord."  of  1629,  165;  see  Ragueau,  Fcrriere,  etc.;  Du 
Cange,  see  "Decoctio."  —  In  case  of  failure  after  death  a  rather  rudimentary 
collective  procedure  is  organized:  "Ord."  of  1396  (8,  95).  Cf.  J.  dihelin, 
185;  "Ord.  des  Maiours,"  I,  5;  post,  "Benefit  of  Inventory,"  "Separation 
of  Inheritances";  "Norm.,"  97;  "Bret.,"  513;  "Lille,"  14,  11;  "Artois," 
24.  —  One  finds  some  agreements  among  creditors  to  unite  in  appointing 
assignees  or  directors,  —  that  is  to  say,  representatives:  Duparc-Poullain, 
"Actes  de  Notoriete,"  p.  232. 

562 


Topic  7]  MEANS   OF   ENFORCEMENT  ON  THE   PERSON  [§  408 

unexpectedly,  and  the  majority  of  the  creditors  presented  them- 
selves in  court  at  the  same  time,  in  order  to  have  distraint 
carried  out. 

Towards  the  end  of  the  thirteenth  century  the  privilege  of  the 
first  one  to  distrain  was  no  longer  applied  in  such  circumstances 
as  these.  The  price  of  the  possessions  was  then  divided,  in  pro- 
portion to  the  amount  of  the  claims,  between  all  the  creditors,  by 
holding  written  proof,  as  though  they  had  all  carried  out  their  dis- 
traint at  one  and  the  same  time.  They  should  have  gone  further 
than  this;  the  debtor  ought  to  be  dispossessed  of  all  his  possessions, 
so  as  to  prevent  his  liquidating  them  in  an  improvident  manner 
and  favoring  one  of  the  creditors  at  the  expense  of  the  others.  It 
was  necessary  to  summon  the  creditors  by  measures  of  publicity 
and  to  group  them  into  a  syndicate  or  union,  so  as  to  arrive  at  a 
distribution  which  was  collective;  and  this  procedure  had  to  be 
regulated  upon  a  basis  of  the  strictest  equality.  This  is  what  was 
done  by  the  statutes  of  the  Italian  towns  ^  when  they  borrowed  the 
complex  system  of  execution  of  the  Roman  law  ^  in  order  to  regu- 
late bankruptcy.^  At  the  same  time,  severe  penalties  were  the 
punishment  for  fraudulent  bankruptcy  ("banqueroute").'^  The 
Italian  customs  for  the  most  part  passed  into  the  old  French  law, 
but  they  were  only  applied  to  a  certain  category  of  persons,  — 
merchants  who  had  ceased  to  make  payments  ("  Ord.,"  1673,  t. 
XI). ^  Failure,  or  known  insolvency,  in  the  case  of  men  who  were 
not  merchants,  was  not  regulated,  and,  excepting  for  the  lien  of 
the  first  man  distraining,  which  was  not  applied  in  these  cases, 

1  C/.  the  Italian  authors:  Straccha,  "De  Mercatura,"  I,  1;  Rocca,  "Be 
Decoctione  Mercatorum";  Casaregis,  "De  Commercio,"  etc.  Order  of  the 
Council  of  July  7,  1667;  Ordinance  of  1673,  Title  XI,  of  March  12,  1678; 
Regulations,  etc.;  see  Guyot,  Ferriere,  Denisart ;  Comment,  on  the  Ordinance 
of  1673  (note);  Jousse,  Bornier,  Fertile,  VI,  391  et  seq. 

2  Differences:  (a)  the  mere  fact  of  the  cessation  of  payment  is  a  presump- 
tion of  insolvency  and  constitutes  a  state  of  failure;  (b)  the  "decoctioni 
proximus"  is  treated  like  the  "decoctus,"  in  this  way,  that  acts  done  a  short 
time  before  the  failure  are  treated  as  null  and  void;  (c)  a  majority  of  the  cred- 
itors may  compel  a  minority  to  surrender  their  debts  and  to  replace  the  debtor 
in  charge  of  his  afTairs  ("concordat").     Italy:  special  courts;  Fertile,  Yl,  392. 

3  Straccha,  II,  1:  "recentiores  jurisconsulti  fallitos  et  cessantes  vocant." 

<  "Banca  rotta":  the  bench  which  the  trader  has  on  the  principal  square 
of  the  town  is  broken.  Sometimes  the  penalty  of  death  was  inflicted  ui)on  the 
bankrupt  whose  guilty  act  involved  the  ruin  of  a  great  number  of  his  fellow 
citizens  and  assumed  the  i)roportions  of  a  public  disaster.  Public  opinion 
could  with  difficulty  distinguish  between  the  unfortunate  man  who  failed  and 
the  criminal  bankrupt:  "Decoctor  ergo  fraudator,"  says  Baldus,  who  echoes 
the  popular  prejudice.  — "Ord."  of  Oct.  15,  1536;  August,  1561,  143  (death, 
etc.);  Lsatrihert,  see  Table;  Fertile,  §  203. 

^  Cf.,  however,  Thaller,  "Failhtes  en  Dr.  Comp.,"  I,  145. 

563 


§  408]  OBLIGATIONS  [Chap.  Ill 

remained  subject  to  the  system  of  individual  prosecution.  The 
reason  for  this  is  that  the  majority  of  the  creditors  of  the  persons 
who  had  failed  were  furnished  with  notarial  deeds,  and  thus 
general  mortgage,  liens,  thanks  to  which  they  escaped  the  law  of 
contribution,  and  they  had  the  least  possible  interest  in  organizing 
a  distribution  which  was  collective.^ 

§  409.  The  Same:  Execution  upon  the  Person.  —  (A)  Self-help. 
Under  its  most  summary  form  execution  consisted  in  the  seizure  by 
the  injured  person  of  the  body  of  the  wrong-doer  who  was  taken 
in  the  act  of  offense,  just  as  one  would  capture  an  animal  which  was 
taken  damage-feasant.^  In  primitive  legislations  the  insolvent  is 
at  the  mercy  of  his  creditors.  His  body  belongs  to  them.  "He 
who  cannot  pay  with  his  purse  pays  with  his  skin,"  says  the  old 
proverb.  The  Irish  law  shows  us  the  creditor  himself  taking  pos- 
session of  the  person  of  the  debtor;  he  places  his  fetters  on  the 
debtor's  feet  and  a  chain  on  his  neck,  takes  him  to  his  house  and 
shuts  him  up  in  it,  not  giving  him  anything  to  eat  excepting  a 
dish  of  pap  each  day.  If  it  were  necessary,  just  as  in  Rome,  the 
body  of  the  debtor  is  divided  among  his  creditors;  the  "partes 
secanto"  of  the  Twelve  Tables  should  be  understood  literally,  for 
in  the  old  law  every  debtor  is  a  criminal,  upon  whom  one  should 
avenge  oneself;  the  addition,  "se  plus  minusve  secuerint,  se  [sine] 
fraude  esto,"  bears  witness  to  the  awakening  of  seme  scruples  in 
the  conscience  of  the  old  Romans.^     By  comparison,  the  conduct 

1  For  the  same  reason  the  PauHne  action  revoking  the  acts  done  by 
the  debtor  in  fraud  of  the  rights  of  his  creditors  had  lost  almost  its  entire 
usefulness.  Nevertheless,  it  was  extended  to  include  renunciations  of  succes- 
sions: "  Ord."  of  1747,  42.  Cf.  R.  de  Lacombe,  see  "Fraude";  Louet,  R.,  20; 
Domat,  2,  10,  1,  2;  Pothier,  "Obhg.,"  no.  153.  The  creditors  could  also 
exercise  the  rights  and  actions  of  their  debtor  who  was  negligent  (Art.  1116, 
Civil  Code).  Our  old  authors  derived  thi.3  rule  from  the  Roman  laws: 
Domat,  "Loix  Civ.,"  II,  10;  Louet,  R.,  20  (Order  of  the  Parliament  of  Paris, 
July  9,  1698);  Lebrun,  "Succ,"  2,  2,  47.  It  is  even  a  question  whether  a 
legal  subrogation  was  required  with  this  object,  and  even  whether  it  was  not 
necessary  to  have  royal  letters.  Labbe,  "R.  Crit.  de  L^g.,'"  1856,  maintains 
that  subrogation,  which  was  at  first  required,  ceased  to  be  necessary,  and  that 
the  creditor  could  act  "quasi  ex  jure  cesso":  Basnage,  on  345  "Norm."  But 
cf.  to  the  contrary  the  same,  on  278  "Norm";  Lebrun,  loc.  cit.  Here  we  have 
a  case  of  forced  assignment  which  assumes  the  intervention  of  the  courts: 
Perier,  "These,"  1884;  "Mel.  P.  Fabre,"  1902,  p.  416;  "France  judic," 
1880-1881,  I,  73. 

^  "Liut.,"  146  (a  prohibition  to  bring  the  malefactor,  having  put  him  in 
chains);  "Bai.,"  3,  9;  "Burg.,"  19,  4.  Cf.  "Wis.,"  8,  5,  1;  Beaumanoir, 
30,  31. 

3  7Aermgr,"Scherz.  U.Ernst,"  p.  223;  Kohler,  op.  cit.,  p.  SSI;  "L.  de  Gulath- 
ing,"  71;  "L.  de  Frostathing,"  10,  26.  —  We  find  people  gambling  their 
limbs,  their  life,  their  honor,  their  eternal  salvation:  Kohler,  60.  William  the 
Tyrant,  11,  11:  "  barbam  suam  hypothecaverat "  (that  is  to  say,  that  the  cred- 

564 


Topic  7]         MEANS   OF   ENFORCEMENT   ON   THE   PERSON  [§  410 

of  the  usurer  in  the  IMiddle  Ages,  of  the  character  in  the  "Peco- 
rone,"  ^  from  which  Shakespeare  created  Shylock,  the  Jew,  in  his 
"Merchant  of  Venice,"  is  humane  enough.  He  is  contented  with 
the  pound  of  flesh  instead  of  taking  the  whole  body  of  the  debtor. 
The  formahties  demanded  by  the  Customs  for  the  taking  of  the 
body,  the  danger  which  the  formal  act  offers  for  the  one  who 
wrongly  makes  use  of  it,  were  the  first  securities  offered  the  debtor. 
But  this  could  not  be  sufficient,  and  from  a  very  early  time  one 
finds  in  the  intervention  of  the  law  a  much  more  efiicacious  means 
of  ameliorating  the  condition  of  the  insolvent. 

§  410.  The  Same.  —  (B)  Intervention  of  the  Law.  (I)  Pro- 
cedure based  on  a  hearing  of  both  parties:  Death  or  slavery  for  debts. 
Assuming  that  the  responsibility  of  the  family  has  in  vain  been 
brought  into  play  by  the  procedure  of  the  "chrenecruda,"  the 
Salic  Law,  t.  58,  requires  that  the  debtor  of  the  "Wergeld"  — 
that  is  to  say,  the  insolvent  murderer  —  should  be  presented 
before  four  successive  sittings  of  the  court;  if  no  one  promises  to 
pay  for  him  he  shall  pay  with  his  life  ("de  sua  vita  componat"); 
he  shall  be  delivered  up  to  the  creditor,  and  the  latter  shall  exer- 
cise his  right  of  vengeance  by  putting  him  to  death."    It  is  obvi- 

itor  acquired  the  right  of  cutting  it,  which  was  a  very  great  disgrace  for  the 
debtor  in  the  East). 

'  A  collection  of  tales  written  in  Florence  in  1358  by  Giovanni.  In  Shake- 
speare's drama  Portia  disguised  as  a  judge  says  to  Shylock:  "You  have  a  right 
to  a  pound  of  fiesh;  the  law  gives  it  to  you  and  the  court  adjudges  it  to  you. 
But  do  not  spill  any  blood.  Take  everything  that  is  due  you,  neither  less  nor 
more.  If  you  cut  more  or  less  than  a  pound,  though  the  difference  should  be 
but  the  twentieth  part  of  an  atom,  you  shall  die  and  your  goods  shall  be  con- 
fiscated." A  good  solution  for  a  period  when  execution  upon  the  body  of 
the  debtor  was  no  longer  understood. 

2  The  ancient  law  of  Gulathing  (Norway),  c.  71,  contains  provisions  which 
have  been  likened  to  this  passage  of  the  Salic  Law  and  the  "jiartes  secanto" 
of  the  Law  of  the  Twelve  Tables.  The  debtor  who  is  not  able  to  pay  pre- 
sents himself  before  the  "thing"  and  offers  his  person  and  his  relatives  for 
the  sum  which  is  due  from  him,  beginning  with  the  nearest  relative.  If  none 
of  them  consent  to  the  bargain  he  belongs  to  the  creditor  until  he  has  paid 
his  debt.  He  is  a  slave  with  respect  to  the  latter,  for  the  creditor  may  strike 
him  if  he  refuses  to  work;  however,  the  creditor  is  not  allowed  to  sell  him 
unless  he  has  escaped  and  been  recaptured.  With  respect  to  third  i)arties  he 
preserves  his  quality  of  a  free  man;  if  he  is  struck,  he  has  a  right  to  the  fine 
fixed  by  the  law  for  blows  dealt  to  free  men,  and  the  master  on  his  part  may 
demand  the  fine  for  blows  given  to  a  slave.  The  debtor  who  makes  himself  a 
slave  may  give  his  children  into  slavery  with  him,  but  only  to  the  amount  of 
3  "marks."  If  he  will  not  work  for  his  master  the  latter  takes  him  to  the 
"thing"  and  places  his  relatives  under  the  necessity  of  releasing  him;  if  they 
refuse,  he  can  kill  him  or  mutilate  him;  the  law  says  that  "he  can  cut  where 
he  will,  high  or  low":  Daresle,  "Etudes,"  p.  333.  —  As  to  the  interpretations 
of  these  texts  c/.  Kohler,  p.  30,  and  authors  cited  above.  Cf.  "Bjarkor,  R.," 
II,  50,  and  especially  the  Law  of  Frostathing,  10,  26:  the  creditor  estimates 
the  value  of  the  limbs  of  the  debtor  and  can  cut  them  off,  beginning  with  the 

565 


§  410]  OBLIGATIONS  [Chap.  Ill 

ous,  although  the  law  does  not  say  so,  that  the  creditor  can  spare 
his  life  and  sell  him  as  a  slave  or  keep  him  himself  in  this  capacity.^ 
If  a  third  party,  "redemptor,"  should  present  himself  during  the 
delay  which  we  have  just  been  dealing  with,  the  debtor  shall 
become  the  slave  of  the  latter,  and  he  will  gain  the  advantage 
ordinarily  of  having  a  less  severe  master,  because  the  latter  has  no 
vengeance  to  carry  out.  Slavery  for  debts  ^  is  the  normal  fate  of 
the  insolvent  in  the  old  law;  sometimes  this  is  as  a  result  of  the 
procedure  which  we  have  just  described,  and  sometimes  it  re- 
sults from  an  agreement  between  the  parties.^  The  clauses  of 
this  agreement  and  the  moderation  of  customs  resulted  later  in 
restricting  the  rights  of  creditors.  Instead  of  being  perpetual, 
slavery  for  debts  then  became  temporary;  it  only  lasts  as  long  as  is 
necessary  for  the  debtor  to  pay  his  debt  by  means  of  his  services; 
or  else,  the  debtor  gives  himself  as  a  pledge  instead  of  surrender- 
ing his  liberty  in  an  absolute  manner.^  In  one  way  or  another 
it  becomes  admitted  at  the  end  of  the  Prankish  period  that  the 
debtor  who  is  in  the  power  of  his  creditor  should  neither  be  killed, 
nor  mutilated,  nor  sold;  the  latter  is  only  authorized  to  make  him 
work  for  his,  the  creditor's  profit,  or  else  to  keep  him  sequestrated." 
(II)   Default.     Having  been  regularly  summoned,  the  debtor 

smallest,  in  proportion  to  the  amount  of  his  debt.     Cf.,  however,  Amira, 
"Voltstreck.,"  262. 

1  Cf.  Edict  of  Chilperic.  8:  at  the  4th  "mallus"  the  king  turns  over  to  the 
creditor  the  "malus  homo  who  cannot  pay  the  composition  due  by  reason  of 
his  misdeeds:  "faciat  exinde  quod  voluerint:"  "Pact.  Childeb.,"  2  (I,  5); 
"Roth.,"  253  et  seq.;  "Liut.,"  80,  152,  187;  "Wis.,"  5,  6,  5;  "Capit.,"  I,  556; 
Brunner,  II,  479;  Kohler,  p.  21. 

2  Potgiesser,  "De  cond.  serv.,"  1707;  Korn,  "De  Obnoxiat.,"  1863;  Kohler, 
"Shakespeare,"  1  et  seq.;  Brunner,  loc.  cit.;  Nageli,  "Selbstpfandungrs.,"  1876; 
Schroeder,  §  35.  —  Comparative  jurisprudence:  Dareste,  "Etudes,"  pp.  83,  96, 
333;  -post,  2,  285.  —  Cf.  Roman  "  nexum,"  Ch'rard,  p.  477. 

^  The  debtor  may  pledge  his  liberty  in  advance  in  case  he  should  not  pay 
or  when  payment  falls  due  give  himself  up  as  a  slave.  Symbolical  forms  for 
the  carrying  out  of  these  agreements:  one  places  a  cord  around  his  neck  and 
puts  his  hands  in  those  of  the  creditor,  etc.  Cf.  "  Obnoxiationes  "  in  Roziere, 
"Form.,"  43  et  seq.;  Thevenin,  "Textes,"  see  Table;  "Cart,  de  Cluny,"  I, 
30,  etc.;  also  laws  and  Capitularies,  especially:  "Bai.,"  1,  10;  "Liut.,"  15,  2; 
"L.  Rom.  Cur.,"  27,  1;  Capit.  of  779,  19;  of  803,  3  (I,  51,  117).  As  to  "Wis.," 
2,  5,  7.  see  Zeumer,  "N.  Arch.,"  XXIV,  112.  Cf.  also  in  1285,  Art.  115a  of 
the  "Coutume  de  Toulouse";  D?<  Cange,  see  "Obnoxiatio";  Horten,  I,  255. 

*  "Form.  Andeg.,"  3;  Marculfe,  II,  29,;  "Ed.  Pist.,"  34;  Mansi,  "Concil.," 
X,  548,  c.  14.  —  Capit.  of  803,  3:  "semetipsum  in  wadium  dare."  —  "Sach- 
Bensp.,"  Ill,  39. 

■•  Later  texts  corresponding  to  this  state  of  the  law:  Statute  of  Toulouse, 
1197;  "Fors  de  B6arn,"  ed.  Mazure,  pp.  26,  48,  50;  of  Lille,  1533,  18,  Art.  3; 
of  Perpignan,  Art.  13  (twelfth  century);  see  Du  Cange:  J.  d'Ibelin,  116;  "C. 
des  Bourg.,"  39,  57,  78;  Kohler,  pp.  23,  24  et  seq.;  P.  de  Fontaines,  17,  6. — 
Competition  between  several  creditors,  cf.  Stat,  of  Toulouse,  "  C.  dea  Bourg.," 
66;  Per  tile,  VI,  357. 

566 


Topic  7]         MEANS   OF   ENFORCEMENT   ON   THE   PERSON  [§  411 

does  not  appear  in  court,  or  else,  sentenced  to  "fidem  facere,"  he 
refuses  to  do  so.^  He  is  placed  outside  of  the  law,^  or,  following 
this,  banished,  and  his  possessions  are  confiscated.^ 

§411.  Imprisonment. — The  system  of  private  imprisonment 
gave  rise  to  too  many  abuses,  although  the  creditor  was  forbid- 
den by  the  Customs  or  by  law  to  ill-treat  his  debtor.^  For  this 
there  had  to  be  substituted  the  system  of  the  public  prison,  which 
was  a  natural  consequence  of  the  intervention  of  the  State  in 
procedure  against  insolvents.^  There  was  no  longer,  properly 
speaking,  satisfaction  by  seizing  the  body,  but  physical  compul- 
sion; because  imprisonment  for  debts  w^as  especially  looked  upon  as 
a  means  of  getting  the  debtor  to  pay  his  creditor  with  the  assistance 
of  resources  which  were  supposed  to  be  hidden.^  The  public  prison 
was  a  protection  for  the  debtor.  However,  he  did  not  find  that  the 
treatment  to  which  he  was  submitted  immediately  became  milder; 
the  Customs  of  the  thirteenth  century  still  show  themselves  to 
be  very  severe  for  insolvents  who  are  confined  in  the  public  jail. 
Much  time  was  to  elapse  before  that  half-serious,  half-comic  sys- 
tem which  the  readers  of  Dickens  have  not  forgotten,  and  which 
made  one  foresee  the  abolition  of  physical  compulsion  as  an  in- 
stitution.^   As  a  general  rule,  one  can  see  that  people  who  were 

^  As  to  the  execution  of  the  "fides  facta"  (for  example,  a  promise  to  ap- 
pear in  court  or  to  carry  out  a  judgment),  cf.  Horten,  "Personalexec,"  p.  21 
et  seq.;  Kleinfeller,  "K.  V.  J.,"  1894,  219. 

2  Cf.  especially  Edict  of  Chilperic,  9;  Kohler,  51;  Horten,  I. 

'  The  debtor  may  cause  the  effects  of  the  "bannitio"  to  cease  by  appear- 
ing in  court.  Cf.  the  Capitulary  of  801,  13,  c,  13  (I,  172).  Post,  "Distraint 
upon  Immovables";  Fertile,  §  185,  VI,  335.    Cf.  Esmein,  p.  157. 

*  The  "career  privatus,"  which  was  proliibited  under  the  Lower  Empire, 
"Cod.  Just.,"  9,  5,  had  reappeared  after  the  invasions,  and  during  the  feudal 
period  debtors  were  held  in  private  prisons,  fed  on  bread  and  water,  and  some- 
times placed  in  irons.  For  example,  see  the  Statute  of  Toulouse  of  1197; 
"Olim,"  I,  539  (in  1262):  The  parliament  allows  the  citizens  of  Compiegne 
the  right  to  arrest  a  debtor  and  detain  him  in  their  own  houses,  —  a  right  the 
exercise  of  which  was  opposed  by  the  bailiff  of  Vermandois. 

^  Leviel,  p.  270;  Kohler,  p.  39;  "  Schuldthtirmer  "  in  Germany.  It  was  also 
an  advantage  for  the  creditor  himself  to  make  use  of  the  public  prison  because 
he  did  not  always  have  a  place  where  he  could  keep  his  debtor  shut  up :  Fer- 
tile, IV,  500.  —  Instead  of  imprisonment,  exile  or  sending  into  the  interior  of 
the  country:  Kohler,  50;  Fertile,  VI,  335. 

*  It  also  served  as  a  means  of  compelling  the  debtor  to  alienate  his  im- 
movables so  long  as  the  compulsory  execution  could  not  affect  this  sort  of 
possessions.  Finally,  it  was  a  punishment  for  the  debtor  in  bad  faith  who 
had  borrowed  knowing  perfectly  well  that  he  could  not  pay  back,  or  who  had 
through  his  own  lack  of  foresight  placed  himself  in  a  position  where  it  was 
impossible  for  him  to  pay  back;  the  creditor  did  not  have  to  establish  the  fact 
that  there  had  been  marked  fraud  or  an  offense,  such  as  swindling  or  abuse 
of  confidence,  etc.    Cf.  penalties  against  bankrupts;  Kohler.  41. 

'  English  law:  cf.  Follock  and  Maitlaml,  II,  577  et  seq.;  ''Fleta,"  II,  64,  12; 
Blackstone,  III,  26. 

567 


§  411]  OBLIGATIONS  [Chap.  Ill 

detained  for  debts  were  treated  like  those  who  were  detained  for 
some  crime,  except  that  they  had  the  right  to  be  suppUed  with  an 
allowance  for  food  by  the  creditor  ^  and  they  were  set  free  when 
they  yielded  up  their  possessions.  Saint  Louis,  in  1254,  made 
provisions  which  should  have  made  this  form  of  compulsion  dis- 
appear, but  which  had  at  least  as  their  result  the  accentuating  of 
its  subsidiary  character  and  the  making  of  it  an  exceptional  means 
of  execution.^  Under  this  form  physical  constraint  was  regulated; 
it  was  only  authorized  under  certain  conditions,  certain  persons 
were  exempt,  and  its  duration  was  limited.  In  order  to  be  able  to 
exercise  it,  it  was  necessary  either  that  the  debtor  should  have 
bound  himself  by  means  of  his  body,^  or  that  there  should  have 
been  a  judgment  against  him;  tliis  was  possible  in  former  times  for 
every  kind  of  debt.  According  to  the  Ordinance  of  1667,  34,  1, 
physical  compulsion  was  only  allowed  in  a  limited  number  of  cases  ^ 
(for  example,  bills  of  exchange,  letters  of  exchange,  debts  between 
merchants  or  the  price  of  merchandise  bought  in  fairs  and  mar- 
kets, farm  rent,  money  spent,  recovery  of  possession,  fraudulent 
sale).  Even  in  these  cases  the  tribunals  were  at  liberty  not  to 
decree  this  sort  of  compulsion;  and  clericals  and  women  and  sep- 
tuagenarians were  exempt  (with  certain  exceptions).^  The  time 
of  duration  of  this  compulsion  was  limited  in  certain  of  the  Cus- 

^  "Ass.  de  Jerus.,"  I,  p.  301,  ed.  B.;  Beaumanoir,  51,  7.    But  cj.  Kohler,  40. 

2  The  "  Ord."  of  1254,  19  (1256, 17),  forbade  the  seneschals  or  baiUffs  to  seize 
or  hold  the  body  of  the  debtor  for  a  civil  debt,  unless  it  were  a  matter  of  a 
debt  to  the  treasurer:  "Summa  Norm.,"  6,  7,  8;  "Et.  de  St.  Louis,"  II,  22; 
"Jostice,"  p.  Ill  et  seq.;  303,  311.  —  The  origin  of  this  provision  is  in  the 
Decretal,  "Odoardus,"  Dig.  X,  333,  3  (the  insolvent  cleric  should  not  be  ex- 
communicated, but  he  should  swear  to  pay  his  debts  if  his  fortunes  im- 
proved). According  to  the  "Ord."  of  St.  Louis,  physical  compulsion,  like 
excommunication,  would  thus  be  a  useless  severity  against  the  debtor  who 
has  nothing  (or  who  has  made  an  assignment  of  his  property):  Paulin, 
"Paris,"  "Gr.  Chron.,"  IV,  345;  it  is  especially  undesirable  that  the  officers 
of  the  king  should  exercise  it  arbitrarily  without  any  formal  proceedings. 
Practice  interpreted  the  "Ord."  of  St.  Louis  in  a  restrictive  manner;  thus 
Beaumanoir  (24,  12,  32;  43,  18,  24;  51,  7;  of.  "Gr.  Gout.,"  162;  "Ord."  of 
1303,  12)  maintains  that  physical  compulsion  is  possible  if  the  debtor  has 
pledged  his  body  in  writing  or  at  law,  or  before  worthy  people.  It  was  also 
permitted  by  virtue  of  a  judgment:  "  Bergerac"  (in  1322),  art.  25.  —  Cf.  "Siete 
Part.,"  5,  14,  14;  "Ass.  de  Jer.,"  I,  188. 

'  Beaumanoir,  51,7;  "Bergerac,"  Art.  25  (in  1322);  "Bord.,"  79;  "Paris," 
160,  etc.;  "T.  A.  C.,  Bret.,"  311;  Kohler,  p.  55;  Reaction  against  these  agree- 
ments, ib.,  p.  68;  "Const.  Chat.,"  p.  80. 

■•  The  "Ord."  of  Moulins  authorized  it  for  every  kind  of  debt. 

^  For  reasons  of  humanity  and  of  decency;  privileges  of  the  clergy:  hnbert, 
I,  27;  Boutaric,  II,  20;  "Gr.  Gout.,"  p.  216;  Lecoq,  "Quest.,"  392;  ^' Roisin," 
no.  50.  However,  public  tradeswomen  can  have  their  body  distrained  upon.  J. 
d'Ibelin,  115,  exempts  knights.  —  It  lasted  for  a  long  while  against  foreigners: 
Fertile,  VI,  368.    Places  where  one  cannot  arrest;  ibid.,  361. 

568 


Topic  7]         MEANS   OF   ENFORCEMENT   ON   THE   PERSON  [§  412 

toms;  ^  but,  as  a  general  thing,  it  could  be  prolonged  indefinitely, 
because  it  was  thought,  and  not  without  some  reason,  that  the 
creditor  would  get  tired  of  nourishing  the  debtor  at  his  own  ex- 
pense.^ Physical  constraint  was  nothing  more  at  the  end  of  the 
Old  Regime  than  a  means  of  execution  which  had  become  more 
and  more  exceptional  and  was  very  often  inefficacious.  The 
Convention  abolished  it  March  9,  1793,  under  the  pretext  that 
"  it  was  a  shame  upon  humanity  and  philosophy  that  a  man  when 
receiving  money  could  mortgage  his  person  and  his  personal  se- 
curity." ^  In  reality  it  took  this  step  because  of  the  hatred  of 
riches,  upon  which  at  the  same  time  it  imposed  a  tax;  thus,  it  did 
not  hesitate  a  few  days  later,  on  the  30th  of  March,  to  revive  it 
against  debtors  of  the  public  funds.  Under  the  Directory,  it  was 
re-established  by  the  Law  of  the  24th  Ventose,  year  V  (March  14, 
1797),  organized  by  the  Law  of  the  15th  Germinal,  year  VI,*  and  it 
existed  in  our  legislation  until  1867.'^ 

§  412.  The  Surrender  of  Possessions,  borrowed  from  the  Roman 
legislation  and  admitted  at  an  early  time  in  the  Customs  of  the 
South,  and  practised  in  the  North  from  the  second  half  of  the 
thirteenth  century,^  permits  the  unfortunate  but  honest  debtor 
to  escape  imprisonment  for  debts.  This  is  an  advantage,  one 
may  say,  and  that  is  true  with  regard  to  the  old  legislation; 
but  it  is  a  veritable  right  if  one  considers  physical  compulsion 
as  a  means  of  getting  away  from  the  debtor  the  possessions  which 
he  conceals.'^    What  is  the  use  of  tormenting  him  when  it  is  certain 

1  Lille:  six  months  ("Roisin,"  no.  16);  Beaumanoir,  51,  7:  40  days,  providod 
he  makes  an  assignment  of  his  goods  (reason  of  humanity).  Cf.  the  German 
proverb:  "The  prison  does  not  pay."    "St.-Omer,"  1127. 

2  On  the  latest  state  of  this  law  see  the  "  Ord."  of  1566,  1667;  Pothier,  "Pro- 
ced.  Civ.,"  nos.  658  et  seq.  Cf.  Loysel,  895,  896  (towns  in  which  arrest  can  be 
made),  897  (fairs,  "Ord."  of  1343),  907,  90S  (bibl.);  Isnmbert,  see  Table. 

3  Linguet,  "Theorie  des  Lois  Civ.,"  p.  392.  Abolition  in  Tuscany,  1782 
Periile,  VI,  366. 

*  "Code  civ.  interm.,"  IV,  p.  72;  Fournel,  "Contr.  p.  Corps,"  year  IX 
Sagnac,  203,  344. 

6  Cf.  Civil  Code,  16,  3;  Code  Civil  Proc,  5,  1,  15;  Law  of  the  4th  Flor. 
year  VII,  and  Sept.  10,  1807  (against  foreigners);  especially  Law  of  April  17 
1832;  modifications  in  Law  of  Dec.  13,  1848;  Aubrey  and  Rau,  VIII,  "R 
Crit.,"  1875,  p.  791. 

«  "Aries,"  etc.;  Giraud,  "Essai,"  II,  20,  23,  188,  235,  262.  Cf.J.  d'lhdin, 
116.  A  few  Customs  of  the  North  rejected  it,  "Ord.,"  XI,  389,  remaining 
faithful  in  this  to  the  spirit  of  the  old  law.  liut  the  royal  legislation  authorizes 
it  and  Beaumanoir,  54,  6;  24,  12,  show>s  it  to  us  being  actually  applied.  "  Ord." 
of  12.54,  19  (12.56,  17);  "Siete  Part.,"  5,  15,  4.  In  many  places,  however,  giv- 
ing up  of  possessions  does  not  release  the  debtor;  for  example,  Tournay,  Mar- 
seilles, Geneva,  etc.:  Kohler,  44  (texts). 

'  The  Customs  of  the  South  allow  the  debtor  to  renounce  beforehand  the 
privilege  of  giving  up  of  possessions;   but  the  "Gr.  Cout.,"   2,  17,  declares 

569 


§  412]  OBLIGATIONS  [Chap.  Ill 

that  he  has  nothing  left  ?  ^  In  order  to  escape  physical  compulsion 
it  is  necessary  that  he  should  strip  himself  of  everything  that  he 
possesses,^  "  usque  ad  sacculum  et  perram, "  says  the  Commentary; 
he  should  only  keep  one  garment  and  "  pannicularia  quae  nudita- 
tem  cooperiant  ";  he  is  not  even  allowed  to  keep  his  cloak.  In  the 
time  of  Beaumanoir  this  surrender  affects  immovables  as  well  as 
movables.  It  takes  place  at  law,  and  it  is  probable  that  this 
was  so  because  the  judges  ought  to  make  sure  that  they  were 
not  dealing  with  a  rogue.^  Humiliating  formalities  often  accom- 
panied the  giving  up  of  possessions;'*  the  best  known,  and  that 
which  lasted  the  longest,  consisted  in  being  compelled  to  wear  a 
green  cap;  in  the  eighteenth  century  this  fell  into  disuse.*^  But 
it  was  otherwise  with  the  formalities  of  publicity  destined  to 
notify  the  public  of  the  circumstances  of  the  debtor.^  The  Ordi- 
nance of  1673,  Art.  10,  enacted  in  the  case  of  merchants  that  the 
surrender  of  possessions  should  be  read  and  published,  and  also 
posted  upon  a  public  notice  board.  It  is  all  the  more  necessary  to 
notify  third  parties  because  the  debtor  is  not  freed  by  the  surren- 
der of  his  possessions;  if  he  acquires  any  new  possessions  his  cred- 
itors have  a  right  to  take  them.     Every  debtor  who  has  made  an 

that  this  renunciation  is  of  no  effect,  even  if  the  debtor  has  done  it  under 
oath;  were  it  not  for  this,  it  would  seem,  it  says,  that  he  had  pledged  himself 
to  die:  Loysel,  682;  Beaumanoir,  54,  6;  Boutaric,  II,  20;  Louet,  "  C,"  14,  12; 
Pasquier,  539;  Tambour,  II,  397  et  seq.,  157  et  seq. 

1  Chaisem,artin,  268:  "The  dungeon  causes  suffering,  but  it  does  not  pay 
the  debt." 

2  Custom  of  throwing  one's  belt  on  the  ground  (c/.  the  wife's  renunciation 
to  the  community):  Du  Cange,  see  "  Cessio  bon.";  Ragueau,  see  "  Ceinture"; 
Pasquier,  loc  cit.,  and  "Rech.,"  IV,  10;  Fleury.  "Inst.,"  II,  68;  Kohler,  46; 
Ord.  of  1490,  44;  1510,  70;  "  Conf .  des  Ord.  de  Guenois,"  I,  523;  Britz,  800. 
Cf.  post,  statutes  according  to  which  the  debtor  is  deprived  of  his  clothing: 
Kohler,  49.     Italy:  Fertile,  VI,  391;  ibid.,  347;  Wach,  "  Z.  R.  G.,"  V,  439. 

3  Pasquier.  "  Inst.,"  537;  Argou,  IV,  6;  Pothier,  "  Proced.,"  no.  709;  Merlin, 
"  Contrat  d'Abandonnement."  As  to  the  last  .state  of  the  old  law,  see  espe- 
cially the  "  Ord."  of  1667  and  1673;  Isambert,  see  Table. 

^  At  Salon  in  1293  the  debtor  goes  through  the  town  in  breeches  and  shirt, 
with  his  head  bare,  preceded  by  a  crier  who  blows  a  trumpet  and  proclaims 
that  no  one  must  contract  with  him  any  more:  Giravd,  loc.  cit.,  "  R.  de  Leg.," 
1844,  428;  "  N.  R.  H.,"  1878,  370;  Kohler,  loc.  cit. ;  Gui  Pape,  "  Quest.,"  143; 
"de  culo  percussit  supra  lapidem  "  (at  Lyons);  Pasquier,  542;  Du  Cange,  see 
"  Cessio  bon.";  Lattes,  "  Dir.  consuet.  Lomb.,"  122  (bibl.).  —  Flogging  (Avig- 
non), "  N.  R.  H.,"  II,  371. 

*  U.  Robert,  "  Les  Signes  d'Infamie  au  Moyen  Age,"  1880;  Ragueau,  see 
"  Bonnet  vert  ";  Fleury,  II,  168;  Louet,  "  C,"  56.  Pasquier  declares  that  he 
never  met  anybody  in  the  streets  of  Paris  wearing  a  green  cap,  and  Pothier 
assures  us  that,  although  the  tribunals  did  not  fail  to  condemn  the  man  to 
wear  the  green  cap,  he  never  saw  a  creditor  avail  himself  of  this  right  to  fur- 
nish the  debtor  with  this  disgraceful  headgear:  Kohler,  48;  Pertile,  VI,  387; 
'•  Stat.  Romae,"  I,  161. 

8  Cf.  Argou,  loc.  cit.;  "  Bretagne,"  681,  etc. 

570 


Topic  7]         MEANS   OF   ENFORCEMENT   ON  THE   PERSON  [§  413 

assignment  at  law  can  surrender  his  possessions  (excepting  in  the 
case  of  an  offense);  as  an  exception,  the  surrender  did  not  take 
place  in  tlie  case  of  certain  classes  of  debts,  —  classes  which  were 
so  extensive  that  this  surrender  lost  its  importance  after  the  en- 
actment of  the  Ordinance  of  1G67.  Instead  of  carrying  out  the 
surrender  of  their  possessions,  debtors  could  also  apply  to  the  king 
and  obtain  from  him  respites  or  "quinquenelles,"  which,  as  this 
last  term  would  indicate,  were  effective  during  five  years.^ 

§  413.  Suretyship,  called  "fidejussio"  (as  at  Rome)  during  the 
early  barbarian  period,^  and  then  "fermansa,"'  "garendia,"^ 
"pie vine"  or  "plegerie,"^  during  the  feudal  period,  was,  as  one 

1  Respite  and  Delay  ("atermoiements").  —  (A)  Respite:  "respectus," 
"repit":  Da  Cange,  see  Ragueau,  ih.;  "Cod.  Just.,"  7,  73,  8  ("quinquennal, 
induciaj");  Loysel,  682  et  seq.  The  king  grants  the  unfortunate  debtor  a  de- 
lay within  which  to  pay  his  debt.  "  Ord."  of  1188.  In  the  fourteenth  century 
letters  of  rescission  are  commonly  used:  "Gr.  Cout.,"  2,  17;  Boutaric,  II,  22. 
They  must  be  ratified  at  law  in  order  to  be  effective.  According  to  Boutillier, 
a  majority  of  the  creditors  (in  number  and  amount)  had  to  give  their  consent 
to  it;  but  this  requirement  seems  not  to  have  lasted  very  long.  Respites  are 
only  granted  for  privileged  debts  (claims  of  the  king,  of  minors,  etc.)  or  in 
case  of  pledge-giving:  Loysel,  68.3,  684.  One  cannot  renounce  a  respite  ac- 
cording to  the  "Stil.  Pari.,  de  foro  compet.,"  and  the  "Ord."  of  1669,  6,  12 
(Loysel,  682  contra.).  The  effect  of  these  letters,  says  Pothier,  "Proced.  Civ.," 
no.  723,  is  to  prevent  the  creditors  from  carrying  out  execution  on  the  body 
of  the  debtor  or  the  movables  which  he  uses;  they  are,  however,  permitted 
to  distrain  upon  the  other  movables  and  immovables,  but  they  cannot  have 
them  sold  before  the  expiration  of  the  delay  granted  by  the  letters.  The  "  Ord." 
of  1673,  9,  5,  excludes  debtors  who  have  obtained  letters  of  rescission  from  tak- 
ing any  public  office;  but  if  they  pay  their  creditors  off  entirely,  "letters  of 
rehabilitation"  cause  this  disability  to  cease.  See  Ferriere,  who  tells  us  that 
in  the  eighteenth  century  letters  of  rescission  were  not  very  much  used;  delay 
("atermoiement")  was  preferred  to  them.  —  (B)  Delay  is  not  distinguished 
from  respite  in  the  old  language;  but  in  the  end  by  this  is  meant  a  delay 
granted  by  the  creditor  to  the  debtor  by  virtue  of  a  friendly  agreement.  It 
is  customary  to  add  to  the  delay  of  payment  a  reduction  of  the  debt.  This 
contract  thus  corresponds  to  that  which  to-day  is  called  a  comj)osition.  It 
assumes  the  consent  of  the  creditors  who  represent  three-quarters  of  the 
amount  due:  see  Merlin.  —  Cf.  Italy:  Fertile,  VI,  381  ("moratoria");  Salvioli, 
388.  Germany:  Schroeder,  832.  German  proverb:  " (Juinquenellcn  in  die 
HoUe  gehfiren." 

2  Thevenin,  "Textes,"  see  Table;  "Burg.,"  82;  "Wis.,"  2,  1,  10,  etc.; 
see  Du  Cange. 

3  "F.  de  Beam"  and  elsewhere;  Customs  of  the  South:  "Bai.,"  15, 11;  Rat- 
chis,  5:  "causa  quae  per  wadiafirmatur";  Franken,  p.  207;  "F.de  Navarre,"  III, 
16;  "fidadores";  "SietePart.,"  V,  12:  "fiadores";  DuCanj^e, see "Caplevator," 
"Manvelator";  Munoz  y  R.,  "Fueros,"  p.  542. 

■•  Du  Cange,  see  "Garandia,"  "Warrantus,"  etc.;  "Olim,"  see  Table, 
" Guadimonium "  or  "Vadimonium,"  "Lombarda  "  2,  21. 

^  In  the  North  see  Godejroy,  "Chanson  do  Roland,"  3847.  Its  etymology 
is  unknown.  "Pleige"  means  surety.  "Pleigerie,"  "pl6vine,"  mean  surety- 
ship, pledging.  Du  Cange,  see  "Plegius"  and  its  derivatives:  "Appl^ge- 
ments,"  "contre-plcge,"  "franc  pl6ge."  Brncton,  3,  10,  1:  "Omnis  homo 
debet  e.sse  in  franco  plcgio"  (responsiljility  of  the  members  of  the  "de(;anie"; 
they  are  pledged  to  one  another  for  the  offenses  which  they  commit);  "aut  in 
ahcujus  manupastu"  (subject  to  some  one).    "Plegium"  in  the  sense  of  gage; 

571 


§  413]  OBLIGATIONS  [Chap.  Ill 

has  seen,  of  very  great  importance  in  the  old  law.^  One  can  say 
that  the  more  defective  and  the  more  embryonic  the  procedure 
was,  the  more  extensive  the  part  played  by  the  surety  became. 
The  giving  of  surety  was  not,  as  it  is  to-day,  a  security  which 
was  accessory,  occasional  in  the  formation  of  contracts;  it  was 
necessary  for  their  very  existence.^  At  this  time  it  was  applied  to 
the  most  diverse  objects:^  surety  is  given  in  order  to  guarantee 
the  payment  of  a  debt  or  that  one  will  appear  in  court,^  that  one 
will  furnish  proofs  or  execute  a  judgment,  that  some  one  who  is 
banished  will  not  return,  that  such  and  such  a  man  will  not  cause 
damage,  that  the  sons  of  the  vendor  will  not  attack  the  sale,  etc. 
When  it  ceased  to  be  strictly  indispensable  the  custom  of  joining 
this  security  to  contracts  was  no  less  widespread;  judges  de- 
manded from  pleaders  pledges  that  they  would  appear;  ^  custom 

ibid.,  see,  "plivium";  "F.  de  Bigorre,"  37;  Ragueau,  see  "Applegement," 
"Plege,"  etc.;  Pollock  and  Maitland,  II,  183  (really:  "gage").  —  German: 
"Biirge,"  c/.  Anglo-Saxon:  "borh."  —  Loysel  calls  it  "reponse,"  669. 

1  Sources:  "Ass.  de  Jerus.,"  J.  d'Ibelin,  117  to  130;  Ph.  de  Navarre,  78,  79; 
"C.  des  Bourg.,"  67  to  86;  P.  de  Fontaines,  c.  7  et  seq.;  Beaumanoir,  43;  "Et. 
deSt.  Louis,"  1, 108, 122;  "  Jostice,"  pp.  83,  87,  93,  105,  274;  "T.  A.  C,  Norm.," 
52;  "Summa  Norm.,"  59,89;  Glanville,  10;  Britton,  "C.  V.,"  "Reg.  maj.,"  3, 
1;  "A.  C,  Anjou,"  Table,  see  "Plege";  "Gr.  Gout.,"  2,  7;  Boutanc,  I,  101; 
"Siete  Part.  "  V   II' "Petriis  "  II  43. 

2  Kovalewsky '^^!lbl,  507;'  Dareste,  pp.  13,  57,  86,  97,  104,  113,  315.  Cf. 
also  Horten,  "Die  Langobard.  Schuldverpflichtung,"  1896  (II,  1896,  "Per- 
sonal execution"). 

3  Examples  in  Ruber,  IV,  875;  "Burg.,"  82,  1;  "Alam.,"  36,  3;  "Capitul.," 
ed.  Boretius,  see  Index.  —  Cf.  the  proxy,  the  responsible  debtor  in  our  law. 

*  Cf.  in  modern  law  provisional  liberty  of  the  accused  under  bail.  Beau- 
manoir, 53,  4:  to  deliver  under  surety  with  good  pledges.  Anglo-Norman 
sources:  the  surety  is  called  "viva  prisonia  ducis  Normannia;";  and,  con- 
versely, it  is  said:  the  gaol  of  Fleet  is  the  pledge  (of  such  and  such  a  man): 
"Summa  Norm.,"  75,  5;  "Select.  Pleas,"  p.  197. 

^  We  have  seen  how  suretyship  was  an  essential  part  of  the  mechanism  of 
the  old  procedure.  In  Normandy  the  "  querimonia"  or  complaint  at  law  takes 
place  "datis  plegiis  de  la  prosequenda"  (the  demandant  should  even  bring 
with  him  witnesses  in  order  to  make  his  complaint  seem  probable:  this  is  the 
"secta"  of  the  English  law:  Brunner,  "Entst.  de  Schwurg.,"  pp.  170,  428); 
both  demandant  and  defendant  give  surety  "de  stando  juri":  "Summa 
Norm.,"  56;  59,  10;  see  Du  Cange,  Ragueau,  see  "Ester."  During  the  course 
of  the  proceedings,  generally  speaking,  in  the  old  law  pledges  are  often 
required:  Franken,  §  17;  "L.  d.  Droiz,"  Table,  see  "Plege";  Ragueau,  see 
"Applegement";  Beaumanoir,  43,  33  et  seq.:  the  surety  "stare  juri"  is  only 
furnished  by  the  alien  demandant;  and  if  he  is  a  poor  man  or  a  foreigner  his 
word  is  deemed  sufficient,  2,  14  (cf.  "caution  juratoire,"  see  Ferriere,  Guyot). 
According  to  Beaumanoir,  loc.  c%t.,  the  pledge  to  abide  by  the  law  is  held  to 
apply  to  the  entire  proceedings.  This  is  equivalent  to  the  payment  of  the 
judgment,  whereas  the  pledge  to  appear  in  court  only  applied  to  the  appear- 
ance: P.  de  Fontaines,  8,  5;  "Jostice,"  p.  87;  "C.  des  Bourg.,"  127;  Larroque- 
Timbaut,  9.  The  tendency  to  do  away  with  legal  sureties  made  its  appearance 
first  of  all,  it  would  seem,  in  the  canon  law;  thus  the  "Auth.,"  "Generaliter" 
was  not  applied  within  the  ecclesiastical  jurisdiction  (P.  Fournier,  p.  146): 
Tanon,  "N.  R.  H.,"  1882,  497.    Later  on,  Loysel  was  able  to  say,  858:  "There 

572 


Topic  7]         MEANS   OF   ENFORCEMENT   ON   THE   PERSON  [§  413 

imposed  in  certain  cases  an  obligation  upon  the  debtor  to  furnish 
sureties.^  For  a  long  time  it  was  a  duty  for  relatives  -  (or  for  client 
and  patron)  mutually  to  serve  each  other  as  surety;^  the  vassal 
is  held  bound  in  some  of  the  Customs  to  act  as  surety  for  his  lord.'* 
As  a  consequence,  this  becomes  a  favor  which  a  friend  will  not 
refuse  to  grant,  and  which  is  not  without  dangers  for  him  because 
of  the  severity  with  which  sureties  were  formerly  dealt  with,  — 
dangers  which  were  all  the  more  to  be  feared  because  they  were 
hidden;  the  surety  believes  that  he  is  brought  in  simply  as  a  mat- 
ter of  form,  he  counts  upon  the  solvency  of  the  debtor,  and  nine 
times  out  of  ten  the  burden  of  the  debt  falls  entirely  upon  him. 
Certain  legislators  concerned  themselves  with  this  situation;  ^ 
thus,  the  Velleianum  Senate  Decree  in  Rome  was  enacted  in  order 
to  warn  women  against  imprudent  undertakings;  they  were  al- 
lowed to  bind  themselves,  but  not  to  act  as  surety  for  anybody 
else.^  In  our  day,  when  "pecuniary  interest  dominates  the  legal 
relations,"  suretyship  has  become  more  rare;  it  has  taken  on  a 

is  no  need  for  legal  sureties  between  Frenchmen."  By  this  he  meant  the 
"judicatum  sol vi,"  which  was  no  longer  required  except  from  a  foreign  de- 
mandant, because  in  his  case  the  particular  facts  that  accounted  for  the 
necessity  of  his  furnishing  surety  in  the  past  had  not  changed;  by  returning 
to  his  native  country  he  could  escape  from  the  consequences  of  the  proceedings 
that  he  had  begun  in  an  offhand  manner  or  with  the  object  of  annoying  some- 
body. As  to  other  legal  sureties,  c/.  Ferriere;  "Ord."  of  1667,  38;  "Tract, 
univ.  juris,"  III  (Schenclv);  Pasquier,  "Inst.,"  599.  —  Also:  Scotch  law"Quon- 
iam  attachiamenta " ;  see  Du  Cange. 

1  "L.  d.  Droiz,"  1008;  "Arrestum  Sane,"  at  Toulouse,  cf.  Tardif,  "Cout. 
de  Toul.,  i.  f. ";  "Le  Droit  prive  au  XIIP  siecle,"  p.  42. 

2  Dareste,  pp.  113,  156  (pledge,  remuneration  given  to  the  surety).  C/. 
p.  1367  {contra);  Beaumanoir,  30,  59;  Glanville,  11. 

^  At  this  time  a  great  deal  of  strictness  is  shown  as  to  the  capacity  of  the 
surety.  Dareste,  p.  376 :  those  who  cannot  be  sureties  according  to  the  "  Senchus 
Mor,"  the  canons  of  Ireland,  and  the  laws  of  Gaul,  are  "servus,"  "peregrinus," 
"brutus,"  "monachus,"  "femina"  (with  the  exception  of  the  "domina,"  — 
that  is  to  say,  the  woman  who  is  at  the  head  of  the  household  because  the 
share  contributed  by  her  is  greater  than  that  of  her  husband). 

*  J.  d'Ibclin,  I,  196;  "Summa  Norm.,"  59  10  ("homagiati,"  and  even  mere 
"residentes");  Beaumanoir,  43,  21;  Giraud,  "Essai,"  II,  13G  (inliabitants  sub- 
ject to  the  consuls);  "Constit.  Sic,"  III,  14;  Fertile,  IV,  512. 

^  Chaisemartin,  11;  Huber,  IV,  855:  precautions  taken  in  Switzerland,  for 
example,  annulment  of  suretyships  entered  into  in  a  tavern,  prohibition  of 
binding  oneself  beyond  a  certain  sum,  entering  in  a  public  register:  Beau- 
manoir, 43,  2,  3. 

"  Stobbe,  §  192.  Special  capacity  to  bind  themselves  in  the  matter  of  giving 
surety.  See  as  to  feudal  period:  Beaumanoir,  43,  22,  26  et  seq.  (married 
woman),  23  (serfs)  38  (clericals),  etc.;  P.  de  Fontaines,  8.  "Abiding"  surety; 
that  is  to  say,  one  who  is  domiciled  within  the  jurisdiction,  in  order  that 
the  examination  of  the  matter  may  not  be  too  difficult:  P.  de  Fontaines,  7. 
"Citizen"  surety,  meaning  solvent,  but  originally  it  means  that  a  citizen  can 
only  have  surety  given  for  him  by  another  citizen  of  the  same  town.  "War- 
ranty" of  a  surety,  insuring  that  the  surety  is  solvent. 

573 


§  413]  OBLIGATIONS  [Chap.  Ill 

commercial  character  (indorsement  of  commercial  paper);  it  is 
less  in  favor  because  modern  law  is  based  upon  the  idea,  "plus 
cautionis  est  in  re  quam  in  persona."  Loysel,  486,  translates  this 
idea  as  follows:  "A  surety  pleads,  a  pledge  pays,  and  to  give 
surety  is  the  occasion  for  a  double  action."  ^ 

§414.  Hostage. — The  early  surety  was  only  a  living  pledge 
or  a  hostage;  -  it  was  his  own  person,  his  body,  that  was  offered 
as  a  pledge  to  the  creditor  by  the  debtor,  "loco  wadii";  ^  he  be- 
came a  sort  of  slave  (cf.  a  Roman  "mancipium");  ^  also,  he  was 
ordinarily  chosen  among  the  persons  who  were  dependent  upon 
the  debtor;  it  was  some  one  of  his  household.  The  creditor  kept 
him  near  himself,  sometimes  sequestrated,  or  even  in  irons;  he  was 
authorized  to  take  vengeance  upon  him  if  the  debtor  did  not  pay 
his  debt  at  maturity,  just  as  he  would  have  taken  vengeance  upon 
the  person  of  the  debtor  (it  was  death,  mutilation,  slavery  for 
debts).  Such  a  prospect  as  this  must  have  led  the  hostage  to 
neglect  no  means  of  getting  the  debtor  to  free  himself  of  the  obli- 
gation. Also,  thenceforth  one  can  account  for  two  of  the  most 
remarkable  characteristics  of  the  primitive  suretyship:  1st,  in 
giving  surety,  the  debtor  frees  himself;  2d,  the  death  of  the 
surety  destroys  the  right  of  the  creditor;  the  fact  of  being  in  his 
hands  like  a  pledge  could  not  be  transmitted  to  the  heirs  of  the 
hostage.  Of  course,  moreover,  the  creditor  had  to  feed  his 
hostage,^  which  gave  rise  to  the  gibe,  "The  banquet  of  a  hos- 

1  Lorjsel,  669,  670.  —  Cf.,  Endemann,  op.  cit.,  II,  344. 

^  Terminology:  "obstagium."  German:  "Einlager,"  meaning  to  send  into 
the  interior  of  the  country;  "Geisel,"  meaning  hostage.  —  Cf.,  in  the  Roman 
law:  "Praes  vas":  Girard,  "Manuel,"  p.  743.  On  the  "  vindex,"  ibid.,  p.  874; 
Maria   "These"  1896. 

»  Capitulary  of  803',  8  (I,  114);  Greg.  Tours,  "H.  Fr.,"  Ill,  15.  Charter  of 
1198  (Molinier,  op.  cit.):  "tenet  obsidem  vel  in  pignore"  (difficulties  among 
several  creditors).  A  hostage  is  distrained  upon  in  the  same  way  as  a  pledge: 
d'Arhois  de  Jubainville,  "Etudes  de  Dr.  Celt.,"  p.  255;  "F.  de  Beam,"  16; 
"thianssers"  (pledge  or  hostage). 

^  Huon  of  Bordeaux  has  killed  the  son  of  Charles;  in  order  to  obtain  hig 
pardon  he  must  carry  out  certain  exploits,  and  meanwhile  he  gives  twelve 
hostages;  Charles,  believing  that  he  has  accomplished  nothing,  orders  that 
these  bondsmen  be  hung.  Literature  is  in  accord  with  the  law;  cf.  freedom  of 
accused  persons  who  have  given  surety.  The  proverb:  "Blirgen  soil  Man 
wiirgen"  (sureties  should  be  strangled) :  Chaisernartin,  11.  In  criminal  matters 
the  surety  suffers  the  penalty  which  would  have  been  incurred  by  the  man  whose 
appearance  he  guarantees  if  the  latter  should  not  present  himself  on  the  ap- 
pointed day.  Cf.,  the  surety  of  Schiller:  "Sachsensp.,"  3,  9,  1.  —  The  law 
changed  upon  this  point  (penalties  became  personal),  and  Loysel  could  say, 
4,  5,  1  and  3:  "He  who  answers  for  a  criminal  body  for  body,  property  for 
property,  is  however  only  civilly  bound."  Cf.,  already,  Beaumanoir,  43,  24, 
25;  "Roisln,"  408.  .    " 

^  At  any  rate,  he  advanced  him  sustenance.  He  is  even  responsible  fo^ 
torts  that  the  hostage  may  commit. 

574 


Topic  7]         MEANS   OF  ENFORCEMENT   ON  THE   PERSON  [§  415 

tage  is  a  costly  banquet."  ^  In  order  to  avoid  these  expenses,  the 
creditor  gave  up  the  person  of  his  hostage,  or,  rather,  did  not  de- 
mand tliat  the  hostage  should  be  handed  over  to  him  as  soon  as 
the  contract  was  made.  He  contented  himself  with  the  promise 
that  the  hostage  would  present  himself  at  the  first  summons  at 
the  place  which  was  appointed  beforehand,  or  which  should  be 
designated  afterwards,  —  a  town,  a  castle,  or  an  inn,  —  and  from 
which  place  he  was  forbidden  to  depart  until  the  debt  should  be 
paid.^  The  laws  seldom  had  to  see  to  the  carrying"  out  of  this 
promise,  because  it  was  made  a  point  of  honor  to  keep  it;  and, 
if  necessary,  excommunication  would  have  had  satisfaction  from 
the  recalcitrant  hostage  (perjury  or  quasi-perjury)  or  else  he  would 
have  been  taken  by  force  (intervention  of  the  magistrates).^ 
Shutting  up  in  prison  was  the  natural  penalty  for  the  infraction  of 
this  order;  Beaumanoir  recommended  that  one  give  the  hostage 
who  has  suffered  this  punishment  better  nourishment  than  is 
furnished  to  prisoners  for  some  crime.^  At  the  same  time,  the 
hostage,  and,  as  a  consequence,  the  debtor,  was  charged  with  the 
expenses  occasioned  by  the  sojourn  of  the  former  in  prison.^  These 
were  surely  real  improvements,  but  they  were  such  that  they  could 
not  preserve  this  superannuated  institution  from  the  disuse  to 
which  it  was  destined.^  There  is  scarcely  any  mention  of  it 
after  the  fifteenth  century.^  But,  if  it  disappeared  from  private 
law,  it  remained  longer  in  the  relations  between  one  nation  and 
another,  and  it  is  reverted  to  in  times  of  crises;  thus  it  is  that  the 
Commune  had  its  hostages. 

§  415.   The  "  Fidejussio"  or  "  Plegerie,"  which  takes  the  place  of 

'  Chaisemartin,  p.  264:  "Giselmahl  kostlich  Mahl."  They  are  often  seen 
leading  a  gay  life,  —  so  much  so  that  in  1577  in  Germany,  through  the  exercise 
of  the  poUce  power,  it  was  forbidden  to  have  hostages:  Le  Fort,  p.  429.  Cf. 
Beaumanoir,  51,  7;  43,  32  et  scq. 

^  He  was  confined  a  prisoner  on  parole:  Giravd,  "Essai,"  II,  189  (Aries), 
23  (Aix). 

3  Le  Fort,  p.  431. 

*  51,  7;  43,  22  et  seq.  Cf.  "Const,  du  Chatelet,"  §  73.  But,  generally 
speaking,  it  was  not  allowed  to  throw  him  "in  vincula  et  carcercm":  it  was 
sufficient  if  he  were  prevented  from  taking  flight:  Loening,  "  Vertragsbruch," 
p.  2.39. 

^  An  indirect  means  of  compulsion  in  this  case. 

8  Jean  Faure,  "Inst.,"  I,  3,  asks  if  one  can  bind  oneself  "ad  carcerem  vel 
ad  tenendum  ostagia";  cf.  4,  6;  D' Argcntre,  on  "Bret.,"  117;  Beawnanoir,  51, 
7:  forty  days' imprisonment  at  the  mo.st  {cf.  pledge);  "A.  C,  Bret.,"  311,  312; 
Regulation  of  the  Consuls  of  Toulouse,  1198,  1200;  "F.  deBearn,"  r.  16.— 
Prohibition  in  1366;  Frioul  in  1396;  Milan  in  1577.  —  Germany:  Kohler, 
pp.  67,  376. 

^  At  Bale-Campagne,  instances  are  found  until  the  eighteenth  century: 
Huber,  IV,  880. 

575 


§  415]  OBLIGATIONS  [Chap.  Ill 

the  "  obstagiiim "  or  exists  together  with  it,  retained  under  its 
primitive  form  many  of  the  former's  characteristics;  it  differs  in 
that  bodily  responsibihty  of  the  warrantor  passes  into  the  back- 
ground; it  is  no  longer  anything  but  a  satisfaction  which  is  almost 
equivalent  to  a  payment,  and  which  consequently  prevents  the 
formation  of  the  obligation  rather  than  guarantees  its  carrying 
out.  It  is  formed  by  way  of  "fides  facta"  at  first,  and  then  by 
faith-pledging  or  the  blow  with  the  palm  of  the  hand.  In  the  first 
case  the  debtor  holds  out  the  "festuca"  or  the  "wadium"  to  the 
surety,  and  the  latter  in  his  turn  gives  the  object  which  he  has 
received  to  the  "fidejussor";^  in  accepting  it  the  "fidejussor" 
releases  the  principal  debtor  ^  and  takes  the  debt  upon  himself.^ 
This  is  at  least  what  seems  to  result  from  this  obscure  symbolism 
if  it  is  interpreted  with  the  assistance  of  the  early  system  of  surety- 
ship, of  which  it  thus  reveals  the  characteristics  within  narrow 
limits."*  With  the  practice  of  faith-pledging  or  the  blow  with  the 
palm  of  the  hand  the  institution  may  have  become  more  flexible; 
its  effects  are  no  longer  imposed  by  the  forms  which  it  assumes; 
at  the  same  time,  the  influence  of  the  archaic  "obstagium"  is  felt 
less;  thus  changes  are  facilitated. 

In  view  of  these  formalities  and  the  influence  of  the  "obsta- 
gium," one  has  no  difficulty  in  seeing  that  the  early  surety 
had  neither  the  privilege  of  having  the  principal  debtor  pur- 
sued before  himself  nor  the  privilege  of  contribution,  and  that 
his  obligation  could  not  be  transmitted  to  his  heirs. ^     (1)  He  does 

1  Prankish  and  Lombard  practice:  Esmein,  pp.  47,  73;  Franken,  §  17;  Sohm, 
op.  cit.;  Vol.  de  Ldevre,  "Launegild,"  pp.  184,  215.  Cf.  Thevenin,  "N.  R.  H.," 
1880,  456;  Thevenin,  "Textes,"  no.  109,  etc.;  Roziere,  "Form.,"  no.  465; 
"Roth.,"  182,  360;  "Liut.,"  32  et  seq.,  128;  Pardessus,  "Dip.,"  no.  424;  "Bai.," 
app.  4;  D.  Vaissette,  "Preuves,"  no.  109;  "L.  Fr.  Cham.,"  16;  Edict  of  Chilperic, 
6  (going  surety  for  oneself);  "  Aripr.  et  Alb.,"  II,  21:  within  three  days  the 
debtor  himself  must  hberate  the  "wadia"  by  furnishing  "fidejussores";  if 
not,  he  has  to  pay  12  sous  for  each  day  he  delays. 

2  The  "wadia"  is  liberated:  "Liut.,"  37,  728;  "Roth.,"  360. 

^  Thenceforth  he  has  the  debtor's  pledge,  and  it  is  understood  that  he  can 
realize  upon  it;  but  one  thing  that  is  not  clearly  explained  in  this  act  is  the 
binding  of  himself  towards  the  creditor;  in  order  that  this  should  happen  it 
would  have  been  necessary  for  him  to  have  given  the  creditor  his  own  "wa- 
dium."  It  has  been  maintained  that  the  "festuca"  that  was  given  him  ought 
to  serve  to  carry  out  execution  upon  the  debtor:  "  L.  Sal.,"  50,  3.  Cf.  Schroeder, 
p.  290. 

«  "Jostice,"19,38;  Esmein,  p.  107;  "Cart,  de  St.  Victor,"  no.  143;  D'Avenay, 
no.  54.  —  Cf.  Simple  guaranty  by  verbal  engagement  in  the  "Summa  Norm.," 
89,  3. 

^  Esmein,  "N.  R.  H.,"  1887,  48,  by  means  of  the  general  idea  of  the  intrans- 
missibility  of  debts,  whether  they  be  those  of  sureties  or  those  of  the  principal 
debtors,  explains  various  rules  of  the  Roman  law ;  namely,  that  one  can  neither 
stipulate  nor  promise  anything  to  take  effect  after  one's  death.    Passive  intrans- 

576 


Topic  7]         MEANS   OF   ENFORCEMENT    ON   THE    PERSON  [§415 

not  have  the  privilege  of  having  the  principal  debtor  pursuetl 
first;  his  responsibiUty  is  not  secondary,  as  in  our  day;  he  is 
kept  in  the  foreground,  just  as  is  the  principal  obligor,  and  he 
covers  the  debtor.^  One  may  even  ask  if  the  latter  is  not  entirely 
freed,  at  least  as  regards  the  creditor,  simply  because  he  has  fur- 
nished a  surety;  it  is  incumbent  upon  the  surety  to  get  the  debtor 
to  carry  out  his  undertaking,  but  in  no  case  would  the  creditor 
have  the  right  of  prosecuting  the  latter;  he  can  only  make  appli- 
cation to  the  surety.  In  other  words,  the  surety  is  responsible  to 
the  creditor  and  the  debtor  to  the  surety.  Such  is  indeed  the 
tendency  of  the  old  Germanic  law,^  and  the  documents  of  the 
Frankish  period  sometimes  yield  to  this  tendency  by  freeing 
the  principal  debtor  ("is  qui  sub  fide  jussore  discesserit")  ^  or 
even  by  permitting  the  debtor  to  act  as  surety  for  himself,  which 
would  have  no  meaning  if  the  creditor  had  been  able  to  attack 
him  merely  in  his  quality  of  debtor.^  In  other  cases,  under  the 
Roman  influence,  they  permitted  the  creditor  also  to  act  against 
the  debtor;^  but,  as  a  general  thing,  if  he  proceeds  in  that  way,  the 

missibility  of  penal  actions,  passive  and  active  intransmissibility  of  the  actions 
"vindictam  spirantes,"  and  "adstipulatio":  Fertile,  130.  Cf.  the  rule,  "The 
living  cannot  distrain  upon  the  dead";  post,  "Distraint";  Dareste,  pp.  77,  94, 
95;  Argou,  II,  7.  The  king  does  not  pay  the  debts  of  his  predecessor:  Isambert, 
1,  279. 

1  Explanation  given  by  Esmein,  p.  87:  "One  does  not  always  choose  one's 
debtor  (for  example,  in  the  case  of  an  offence);  one  chooses  one's  surety  and 
takes  care  that  he  is  solvent,  so  that  it  is  more  natural  to  pursue  the  surety 
than  the  debtor." 
•  ='  Denmark:  "  Jiit.  Lov.,"  2,  62,  64:  he  who  gives  surety  is  not  responsible  to 
any  other  person  excepting  the  surety :  Dareste,  pp.  113,  263;  "  Lib.  Pap.  Roth.," 
178  3 

»'  "Burg.,"  19,  5;  4,  7;  83,  1;  "Sal.  Extrav.  B.,"  6  (Hessels):  the  debtor  is 
released  if  the  "fidejussor"  dies  after  having  received  the  pledge:  "L.  Fr. 
Cham.,"  16;  "Roth.,"  245,  366;  "Ratch.,"  8;  "Aist.,"  21;  "Liut.,"  36  et  seq. 
A  suit  in  692:  Bethmann-Hollw.,  "Civilproz.,"  I,  558;  Geffcken,  "Sal.,"  p.  287 
(bibl.). 

*  Edict  of  Chilperic,  6.  According  to  the  common  opinion  pointed  out 
above  in  the  first  place,  the  "festuca"  passes  through  three  hands,  just  as  in 
the  caseof  the  giving  of  surety  by  a  third  party:  Geffcken,  "Sal.,"  21\;Schroeder, 
p.  291;  Sohm,  loc.  cit.;  "Eheschl.,"  p.  41;  Brunner,  II,  368;  Esmein,  p.  83; 
Franken,  p.  234;  Heusler,  II,  242;  Huber,  IV,  875;  "N.  R.  H.,"  1879,  342;  1880,  , 
77.    Cf.  "Jiit.  Lov.,"  II,  104. 

^  The  privilege  of  exhausting  the  remedy  against  the  principal  debtor 
before  proceeding  against  the  surety  did  not  exist  —  at  least,  on  principle  — 
before  the  time  of  Justinian,  "Nov.,"  IV.  We  read  in  "L.  Rom.  Wis.," 
"Gaius,"  2,  9,  2:  the  creditor  has  a  right  to  pursue  either  the  debtor  or  the 
"fidejussor"  at  his  will:  "Liut.,"  108;  "L.  Sal.,"  loc.  cit.  (cf.  t.  50)  (Geffcken, 
287);  if  they  are  both  alive  the  debtor  is  first  held  liable  to  pay,  "N.  R.  H.," 
1880,  457;  1879,  336.  Fine  for  the  debtor  who  allows  the  surety  to  be  dis- 
trained upon:  "Burg.,"  19^  8,  9;  "Liut.,"  40;  "Et.  de  St.  Louis,"  I,  122 
(choice  of  a  creditor).  A  triple  summons  of  the  debtor  in  the  law  of  the  Bur- 
gundians  and  the  Lombards:  "Roth.,"  245.     But  it  is  not  necessary  for  the 

577 


§  415]  OBLIGATIONS  [Chap.  Ill 

"fidejussor"  is  liberated/  and  in  any  event,  the  surety  who  is 
prosecuted  in  the  first  place  is  under  the  necessity  of  giving  satis- 
faction. This  surety  is  not  able  to  send  the  creditor  away  and 
tell  him  to  first  of  all  carry  out  his  vengeance  on  the  possessions 
of  the  debtor,  which  rule  is  still  found  in  the  thirteenth  century 
in  many  of  the  books  of  Customs.^  Thus,  Beaumanoir,  43,  21, 
assumes  that  the  creditor  asks  the  surety  to  "act  like  a  good 
surety"  without  the  debtor  being  informed  of  it;  the  surety  has 
the  choice  of  paying  at  once  or  giving  a  sufficient  pledge  or  nam 
so  as  to  gain  time,  obtain  enough  to  pay  or  to  proceed  against  the 
debtor.^  This  surety  should  do  everything  in  his  power  to  assure 
the  payment  of  the  debt;^  he  must  busy  himself  in  order  to  make 
the  debtor  appear  in  court,^  and  bear  with  the  whole  weight  of  his 
moral  authority  or  physical  authority  so  as  to  compel  him  to  give 
satisfaction.^  Against  the  surety  the  creditor  is  armed  with  the 
forcible  means  of  action  of  the  old  law,  the  physical  constraint,^ 
and  especially  private  distraint;  ^  and  in  his  turn  the  surety 
makes  use  of  them  against  the  debtor,^  who  is  held  liable  towards 

creditor  to  prove  the  insolvency  of  the  debtor  in  order  to  pursue  the  surety : 
"Ratch.  "  8.     Cf.  Petrus   II  27. 

1  "Faux  Cap.,'"  Ill,  334;  "L.  Rom.  Cur.,"  22,  12;  Esmein,  86;  Baluze, 
"Cap.,"  I,  154;  Paul,  "Sent.,"  II,  17  (effect  of  the  "Htis  contestatio").  At 
Neufchatel,  Switzerland,  until  1855,  the  creditor  who  in  the  first  place  pursues 
the  debtor  thereby  loses  all  recourse  against  the  surety :  Huber,  TV,  883 ;  Stobbe, 
III,  308. 

2  "Et.  deSt.  Louis,"  1, 122;  "A.  C,  Bourg.,"  5,  3;  "Lille,"  143;  "Toulouse," 
76;  "Montpellier,"  72;  "Sachsensp.,"  Ill,  85,  1;  "Schwabensp.,"  I,  6.  No 
preliminary  denunciation  of  the  debtor:  Beaumanoir,  43,  1.  But  the  surety 
acts  imprudently  by  not  putting  this  point  in  issue:  ibid.,  43,  10,  12;  Pasquier, 
"Inst.,"  p.  585;  the  debtor  and  the  surety  can  be  prosecuted  for  debts  owed  to 
the  king  without  any  examination:  "  F.  de  Bcarn,"  ed.  Mazure,  p.  294  (renun- 
ciation of  the  three  Roman  privileges  of  exhausting  the  remedy  against  the 
principal  debtor  before  proceeding  against  the  surety,  contribution,  and 
assignment  of  the  deed). 

'  "Summa  Norm.,"  59,  7.  It  is  clear  that  by  this  means  progress  was 
being  made  towards  the  recognition  of  the  subsidiary  character  of  a  surety. 

*  Which  is  done,  for  example,  by  his  seizing  the  possessions,  or  even  the  per- 
son of  the  debtor,  and  handing  them  over  in  payment  to  the  creditor.  Example 
in  Perlile,  loc.  cit.;  "Burg.,"  19,  7. 

^  Beaumanoir,  43,  25;  Glanville,  X,  5,  5. 

»  Pertile,  IV,  505. 

7  "Ass.  de  Jerus.,"  "C.  des  B.,"  39,  58,  80,  112;  "Alais,"  7  in  "Olim,"  IV, 
1486;  "Const,  du  Chatelet,"  71  (by  virtue  of  a  special  clause).  But  according 
to  Beaumanoir,  43,  18;  24,  30,  the  surety  does  not  pledge  his  body;  "T.  A.  C, 
Norm.,"  52. 

8  "Liut.,"  108  et  seq.;  Beaumanoir,  43,  15;  30,  51  et  seq.  In  the  County  of 
Clermont  no  one  can  have  recourse  to  his  surety  by  giving  him  up  unless  he 
makes  a  complaint  at  law,  excepting  at  Creil  and  in  a  few  other  places:  Du 
Cange,  see  "Abandum";  "Ass.  de  Jerus.,"  "C.  des  B.,"  76,  77. 

»  Even  before  he  has  been  pursued:  "Liut.,"  39,  40;  "Burg.,"  19,  82,  96; 
•'Extr.,"  21,  8.    But  the  "L.  Burg.,"  does  not  make  any  mention  of  a  distraint 

578 


Tone  7]         ME-OfS   OF   EXFORCEMENT   ON  THE   PERSON  [§  41G 

him  in  double  the  amount.^  It  is  even  noticeable  that  in  this  mat- 
ter the  employment  of  distraint  by  self-help  is  maintained  much 
longer  than  in  the  case  of  ordinary  debts,^  (2)  Between  fellow 
"fidejussores"  there  was  neither  contribution  nor  recourse.^  The 
creditor  was  authorized  to  reclaim  the  entire  debt  from  either  one 
he  pleased;  ^  the  others  were  then  freed  by  one  payment,  and  they 
neither  had  to  contribute  in  advance  to  the  "solutio"  nor  to  in- 
demnify the  "solvens"  afterwards.^  (3)  Finally,  as  a  last  charac- 
teristic of  the  old  "iidejussio,"  the  obligation  of  the  surety  did  not 
pass  to  his  heirs  ^  but  died  with  him,^  which  made  of  it  a  very 
frail  guarantee  in  one  sense,  while  it  was  a  very  powerful  one  in 
another,  owing  to  the  rights  which  it  gave  to  the  creditor.  It  is 
probable  that  this  risk  was  lessened  by  increasing  the  number  of 
sureties. 

§  416.  Modern  Suretyship  was  developed,  like  the  Roman 
"fidejussio,"  by  way  of  a  spontaneous  progression  in  legal  ideas; 
in  proportion  as  the  payment  of  debts  became  better  assured  by 
force  of  law  and  morals,  sureties  became  less  useful ;  ^  they  ceased 
to  be  so  strictly  held;  ^  their  undertaking  became  entirely  acces- 

practised  by  the  creditor  upon  the  debtor;  the  only  question  dealt  with  is  one 
relating  to  a  summons  made  for  the  sake  of  form;  the  surety  is  responsible  to 
the  creditor  and  the  debtor  to  the  surety.  —  Esmein,  p.  90;  Dareste,  p.  113 
(preliminary  pledge  given  to  the  surety);  p.  198  (privilege);  p.  156  (salary). 

1  "L.  Fr.  Cham.,"  16;  "Cap.  de  Pari.  Sax.,"  27;  Papien,  14,  8;  "Liut.," 
108;  Sickel,  "Bestr.  d.  Vertragsbr.,"  10;  Esmein,  88,  97,  137.  The  same  in 
Hindu  law,  Irish  law,  etc.:  Kovalewsky,  p.  153;  Dareste,  "Etudes,"  p.  77; 
Collinet,  "N.  R.  H.,"  1895,  653.     "A.  depensi"  at  Rome. 

2  Beaumanoir,  43,  15;  "Et.  de  St.  Louis,"  I,  122;  "Jostice,"  19,  26,  38,  47, 
174;  "L.d.  Droiz,"no.l94;  "Ass.de  Jerus.,"  "C.des  B.,"  74;  "A.  C,  Artois," 
22,  4;  "A.  C,  Bayonne,"  153. 

3  Glanville,  X,  5;  "Ass.  de  Jdr.,"  "C.  des  B.,"  72,  78;  "Const,  du  ChAt.," 
73,  76;  Beaumanoir,  43,  7,  5;  "Montpellier,"  72;  Pasquier,  "Inst.,"  p.  589.  — 
Dareste,  p.  90. 

*  He  chose  the  one  who  appeared  to  be  in  the  better  position  (the  one  who 
was  apparently  more  solvent). 

5  The  "solvens"  could  only  ask  the  others  in  a  friendly  manner  for  an 
immediate  contribution  or  a  promise  to  indemnify  liim;  he  was  not  sure  of 
obtaining  it  unless  it  had  been  previously  agreed  upon. 

8  Gains,  III,  120  ("sponsor,"  "fidepromissor");  "Burg.,"  82,  2;  Capit.  of 
875,  c.  42;  Esmein,  89.  —  P^or  the  Feudal  Period  cf.  "Summa  Norm.,"  59; 
J.  d'Ibelin,  129;  "C.  des  Bourg.,"  78;  P.  de  Fontaines,  9,  5;  Beaumanoir,  43, 
4;  "Jostice,"  II,  12,  3;  Boutaric,  I,  101;  "Montpellier,"  13;  'A.  C,  Bourg.," 
78.  —  Cf.  Dig.  X,  3,  22,  and  the  Commentaries  of  Hostiensis,  G.  Durand,  etc. 

^  It  has  been  said  that  a  kind  deed  was  personal.  But  it  is  just  when  it 
becomes  a  kind  deed  that  suretyship  becomes  hereditary:  Esmein,  "N.  R.  H.," 
1887,  51;  Dareste,  p.  76. 

8  No  forms  for  suretyship  {cf.  Beaumanoir,  39,  69;  "Summa  Norm.,"  89,  3) 
no  more  than  for  ordinary  contracts:  "Roisin,"  25,  47. 

'  .Joint  debt  or  "solidarity"  was  not  distinguished  from  the  old  suretyship; 
it  only  acquired  a  special  existence  when  suretyship  took  on  its  new  form  and 
lost  its  harshness:  Argou,  book  IV;  Glasson,  VII,  599. 

579 


§  410]  OBLIGATIONS  [Chap.  Ill 

sory ;  ^  it  was  their  possessions,  and  not  their  persons,  that  the 
creditor  attacked;  also,  the  heirs  of  the  surety  had  no  right  to 
try  to  escape  from  this  burden.^  By  this  means,  what  the  creditor 
loses  on  one  side  he  finds  that  he  gains  on  another;  if  his  remedy 
against  the  surety  is  less  severe,  it  is  the  more  certain.  Already 
in  the  thirteenth  century  the  "Grand  Coutumier  de  Normandie"  ^ 
contrasts  the  simple  surety,  whose  obligation  is  personal,  with 
the  surety  who  undertakes  as  a  "  surety  and  debtor,"  —  that  is 
to  say,  one  who  binds  both  himself  and  his  heirs.^  Inherita- 
bility  soon  becomes  the  rule.  For  his  part,  the  creditor,  whose 
protection  gathers  strength  and  who  seeks  property  rather  than 
a  person,^  is  under  the  obligation  to  prosecute  the  debtor  before 
doing  anything  else,  and  it  is  only  when  it  is  well  proved  that 
the  latter  is  insolvent  that  the  creditor  can  have  recourse  to 
the  surety ;  ^  the  latter  is  only  a  secondary  debtor,  a  "  segond 
detors,"  as  the  Assizes  of  Jerusalem  say.  Excepting  in  a 
few  belated  Customs,  the  surety  has  the  Roman  privilege  of 
ranking  in  order  or  of  having  the  debtor's  property  pursued 

1  Consequences:  Pothier,  "Oblig.,"  373  (delay,  physical  compulsion). 

2  The  obligation  of  the  pledge  became  hereditary  sometimes  as  a  conse- 
quence of  a  privilege  (claims  of  the  sovereign,  Beaumanoir,  43,  9),  sometimes 
as  a  consequence  of  a  special  clause  or  of  the  form  which  it  took  on  ("pleigerie 
stipulaire":  Boutaric,  I,  101):  P.  de  Fontaines,  9,  5;  Imbert,  III,  16;  finally  it 
passed  to  the  heirs  when  the  surety  had  been  sued  at  law:  Beaumanoir,  43,  4. 
Cf.  "L.  Rib.,"  67,  1;  Dig.,  50,  17,  139;  Esmein,  "N.  R.  H.,"  1887,  57.  Ac- 
cording to  the  "Ass.  de  Jerus.,"  "C.  des  B.,"  78,  the  possessions  of  the  surety 
are  seized  and  sold  if  the  debtor  is  insolvent;  in  fact,  assuming  that  he  is  not 
dead,  he  should  have  paid  or  given  pledges.  In  a  general  way,  one  can  say 
that  the  reasons  in  favor  of  intransmissibility  no  longer  existed,  and  that 
the  clause  of  heredity  was  implied.  Post,  "Inheritances."  Cf.  English  law, 
clauses  of  this  nature  ("specialty  binding  the  heir  ");i/e?isZer,  II,  548.  Heredity 
according  to  the  "Schwabenspiegel,"  VII,  289  (Stobbe,  191). 

3  "Summa,"  59,  89;  Boutaric,  I,  101;  'IL.  d.  Droiz,"  143. 
*  The  heirs  are  the  pledges  of  chance:  "Summa,"  60,  12. 

^  Provided  that  the  pursuit  of  the  debtor  is  not  too  difficult,  and  that  it  ia 
not  simply  to  avoid  this  pursuit  that  one  has  had  recourse  to  the  "fidejussio." 

^  The  surety  pursued  by  the  creditor  had  two  means  of  defense  in  our  old 
law,  —  one  of  Customary  origin,  and  the  other  of  Roman  origin:  1st,  the  de- 
fense of  warranty  allowed  him  to  interplead  the  principal  debtor  (or  his  fellow 
"fidejussores"):  J.  d'Ibelin,  124;  Beaumanoir,  43,  21;  "Gr.  Cout.  de  Norm.," 
60,  89.  —  2d,  the  primlege  of  having  the  remedy  against  the  principal  debtor 
exhausted  before  the  surety  was  proceeded  against  (Glanville,  X,  3,  4;  "A.  C, 
Anjou,"  I,  328;  cf.  "Et.  de  St.  Louis,"  I,  122;  "L.  des  Droiz,"  620;  Boutaric, 
I,  120),  by  means  of  which  the  "fidejussor"  makes  the  creditor  pursue  the  prin- 
cipal debtor  before  proceeding  against  him:  "Bret.,"  150,  207;  Masuer,  II; 
Imbert,  I,  20;  Rebuffe,  "De  Litt.  Obi.,"  I,  2,  88;  Pothier,  "Proc.  civ.,"  no.  90. 
The  defense  of  warranty  is  especially  serviceable  to  the  surety  who  has  re- 
nounced the  privilege  of  having  the  principal  debtor  pursued  before  himself 
or  of  contribution.  This  warranty  in  personal  matters,  or  simple  warranty  (the 
surety  not  being  put  outside  of  the  law)  is  contrasted  with  formal  warranty  (in 
real  matters):  Esmein,  148. 

580 


Topic  7]         MEANS   OF   ENFORCEMENT   ON   THE    PERSON  [§  41G 

before  himself.^  With  the  ordinary  surety,  who  is  held  second- 
arily and  in  default  of  the  principal  debtor,  is  contrasted  ^  the 
surety  who  is  jointly  and  severally  liable,  and  who  is  looked  upon, 
owing  to  a  curious  inversion  of  historical  sequence,  as  having 
renounced  the  privilege  of  having  the  principal  debtor  pursued 
first,^  though  it  was  the  ordinary  surety  who  acquired  it.  The 
privilege  of  contribution  ^  could  not  fail  to  be  joined  to  the  privi- 
lege of  having  the  principal  debtor  pursued  before  the  surety ;  ^ 
the  same  reasons  of  equity  caused  it  to  be  admitted  in  the  fif- 
teenth century  by  judicial  practice,  and  a  little  later  even  the  surety 
who  had  paid  without  asking  for  contribution  in  the  payment  of 
the  debt  obtained  an  action  against  his  fellow  "fidejussores."  ^ 
The  recourse  of  the  "fidejussor"  against  the  principal  debtor,^  in- 
stead of  being  carried  out,  as  it  was  formerly,  by  means  of  private 
distraint,  offered  no  other  peculiarities  excepting  the  possibility 
of  making  use  of  the  rights  and  actions  which  belonged  to  the 
creditor  ^  ("benefit  of  the  assignment  of  actions").^ 

^  Italian  statutes  cited  by  Fertile,  IV,  508. 

2  He  who  assumes  the  character  of  a  surety  and  debtor  binds  his  heirs  and 
sometimes  releases  the  principal  debtor;  then  the  clause  means,  the  acceptance 
of  a  new  debtor  instead  of  the  old  one:  "Gr.  Gout,  de  Norm.,"  60;  "L.  d. 
Droiz,"  143. 

^  P.  de  la  Janes,  II,  338,  345,  states  that  it  was  customary  to  renounce  the 
privileges  of  having  the  principal  debtor  pursued  before  the  surety  and  of 
contribution.  The  legal  surety  did  not  enjoy  these  advantages  (but  it  was 
otherwise  with  his  warrantor),  nor  did  jointly  liable  joint  debtors  (even  in 
countries  of  written  law,  although  they  say  the  Novella,  99,  seems  to  have 
granted  them  both  these  defenses).    Cf.  Loysel,  397;  L'Hommeau,  p.  312. 

■•  "Beneficium  nova)  constitutionis":  "Nov.,"  4;  Fertile,  IV,  510;  "F.  de 
Bcarn,"  ed.  Mazure,  p.  294. 

*  Right  of  interpleading  his  fellow  sureties  (warranty);  also  the  Roman 
privilege  of  contribution:  Masuer,  29,  23;  "Roisin,"  p.  47;  "A.  G.,  Anjou,"  II, 
441;  IV,  252. 

6  D'Argentre,  on  "Bret.,"  Art.  213.    Cf.  Fasquier,  "Inst.,"  p.  599. 

^  The  liens  which  accompanied  recourse  of  the  "fidejussor"  against  the 
principal  debtor  disappeared  from  the  Gustoms  (cf.,  however,  "Bret.,"  204) 
at  the  same  time  as  certain  unfavorable  rules  which  were,  so  to  speak,  its 
counterjjart:  no  recourse  if  he  denies  his  obligation  and  it  is  proved  against 
him:  J.  d'Ibelin,  117,  126;  "G.  des  Bourg.,"  69  (lo.ss  of  the  right  to  reply  in 
Court);  "Toulouse,"  75;  Beaumanoir,  43,  6,  39;  "Jostice,"  18,  7,  3. 

'  "Coimter  certificate  of  warranty"  drawn  up  by  the  notary.  , 

^  Italian  statutes  after  the  fourteenth  century:  Fertile,  IV,  50S;  "Toulouse," 
81.  By  his  own  act  the  creditor  loses  the  securities  of  payment  which  he  had 
at  the  time  of  the  giving  of  surety;  the  surety  is  discharged:  F.  de  la  Janbs, 
II,  342.  —  Novation:  Beaumanoir,  43,  11,  12  (respite);  "Ass.  de  J(5r.,"  "G.  des 
B.,"  71,  73,  79;  "Gonst.  duGhiit.,"  §  79  (granting of  aterm).  —  Gase  in  which 
the  surety  can  demand  his  release  by  the  debtor:  "  Vergit  ad  inopiam."  Stat- 
ute of  Trieste,  1550;  at  the  end  of  a  year,  Ravenna,  1471;  of  ten  years,  Brescia, 
1313;  Fasquier,  "Inst.,"  p.  595;  "Siete  Part.,"  V,  12. 


5S1 


§417] 


OBLIGATIONS 


[Chap.  Ill 


Topic  8.    Execution  upon  Possessions,  and  Real 
Securities 


§  417.  Movables  are  the  Seat  of  Debts. 

§  418.  Pledging  of  Movables  based 
upon  an  Agreement.  —  (A) 
Early  Conception. 

§  419.  The  Same.—  (B)  Tfie  Pledge 
passes  to  the  Condition  of  an 
Accessory  Security. 

§  420.  Private  Distraint  ("Pigner- 
atio")  upon  Movables. 

§  421.  Pledge  loy  Legal  Process.  —  (A) 
Barbarian  Laws. 

§422.  The  Same.— (B)  Customary 
Law. 

§  423.  Execution  upon  Immovables. 
Origin  of  Distraint  upon 
Immovables. 

§  424.  Land  Distraint  and  Its  Pro- 
cedure. 

§  425.  The  Same.  —  (A )  Documentary' 
Right. 

§  426.  The  Same.  —  (B)  The  Distraint 
Proper. 

§427.  The  Same.  — (C)  Public  An- 
nouncements and  Award-. 

§  428.  The  Same.  —  (D)  Preferences. 

I  429.  The  Same:   Later  Law. 

§  4.30.  Forms  of  Realty-Mortgage. 

§  431.  The  Same:  (I)  Sale  with  Re- 
demption. 


(II)  Land-Gage. 

(III)  "Bond." 

-  (A)  The  General 

-  (B)   The  Special 


§432.  The  Same: 

§  433.  The  Same: 

§  434.  The  Same.  - 
Bond. 

§  435.  The  Same. 
Bond. 

§  436.  The  Same.— (C)  Comparison  of 
the  General  Bond  and  the 
Special  Bond. 

§  437.  The  Same:  Hypothec-Mort- 
gage. (1)  Countries  of  Pub- 
lic Nam. 

§  438.  The  Same:  (2)  The  so-called 
"Customary  Common  Law." 
Mortgage  is  Creatable  only 
by  Notarial  Deed. 

§  439.  The  Same:  Every  Notarial 
Deed  Implies  a  General 
Mortgage. 

§  440.  The  Same:  Judgment  Lien 
("Judicial  Hypothec").  Ev- 
ery Judgment  Implies  a 
General  Mortgage-Lien. 

§  441.  Implied  Liens  (Hjq^othecs) . 

§  442.  Consequences  of  the  Mort- 
gage. 

§  443.  "Clearance." 

§  444.  Revolutionary  Law. 


§  417.  Movables  are  the  Seat  of  Debts.  —  In  the  old  times  it 
was  the  person  of  the  debtor  that  answered  for  his  debts.  As  a 
consequence,  movables,  which  are  a  part  of  his  person  ("ossibus 
inhserent")  were  made  liable  also.  The  debtor  gave  his  mov- 
ables as  a  pledge  to  the  creditor,  or  else  the  latter  distrained 
upon  them,  if  payment  were  not  made.^  Immovables  escaped 
creditors  because  they  belonged  to  the  family  or  to  the  tribe  rather 
*than  to  the  individual:  "He  who  has  only  immovables  is  insol- 
vent."^ The  feudal  system  strengthened  this  rule;  in  fact,  the 
vassal  and  the  copyholder  were  not  permitted  in  incurring  debts 

*  Loysel,  326;  Esmein,  p.  168.  Difficulties  in  admitting  of  distraint  upon  im- 
movables, and  even  when  it  was  admitted,  the  subsidiary  character  which  it 
always  had :  Benumanoir,  54.  "  L.  Sal.,"  50 :  the  creditor  can  only  distrain  upon 
movables;  58:  the  insolvent  debtor  has  given  the  creditor  his  "facultas";  that 
is  to  say,  his  movables.  Cf.  Geffcken,  pp.  ISO,  218.  English  law:  c/.  Esmein,  164. 

^  A  German  a.\iom. 

582 


Topic  S]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES    [§  418 

to  involve  the  property  right  of  the  lord;  it  was  also  said  that 
"Fiefs  are  not  liable  for  any  debt."  This  was  in  accord  with  the 
persistent  tendency  in  the  direction  of  the  conserving  of  real 
property  in  families.^  But  we  have  already  seen  how  these  old 
ideas  which  w^ere  so  contrary  to  the  rules  of  the  Roman  law  dis- 
appeared or  became  w^eakened.  The  consequence  was  that  it  be- 
came possible  to  distrain  upon  immovables,  and  that  the  entire 
inheritance,  and  not  only  a  certain  category  of  possessions,  were 
liable  for  debts.  Even  although  the  principle  of  the  very  ancient 
law  was  completely  abandoned  from  the  fourteenth  century  in 
France,  the  heedlessness  of  the  legislators  has  preserved  traces  of 
it,  even  in  the  Civil  Code.^  In  England  it  has  lasted  almost  to 
our  own  day.^ 

§  418.  Pledging  of  Movables  based  upon  an  Agreement.  —  (A) 
Early  Conception.  ''Without  possession  there  is  no  pledge,"  one 
can  say,  because  the  old  law  only  recognized  that  which  the  Ger- 
mans call  the  "Faustpfand,"  "*  pledge  of  the  hand,  pledge  given 

1  Consequences  of  the  rule:  1st.  Only  movables  can  be  distrained  upon  in 
the  very  old  law;  in  the  later  law  immovables  can  only  be  distrained  upon  if 
there  are  no  movables  or  if  the  latter  are  not  sufficient  to  pay  off  the  creditors. 
—  2d.  In  a  succession  only  the  heir  of  the  movables  has  to  pay  the  debts;  the 
heir  of  the  immovables,  or,  at  least,  of  the  personal  belongings,  receives  them 
without  contributing  to  the  payment  of  the  debts;  the  charge  of  the  debts 
also  falls,  if  there  are  no  movables,  upon  the  immovable  acquests  which  belong 
to  the  heir  of  the  movables:  Beaumanoir,  12,  6.  CJ.  P.  de  Fontaines,  p.  1.38. 
Guy  Coquille,  on  "Niv.,"  35,  4:  "Tliis  article  was  passed  at  the  time  when  the 
general  opinion  of  the  courts  of  the  Customary  countries  of  France  was  that  the 
heir  of  the  movables  ought  to  pay  the  debts  upon  the  movables  of  the  deceased; 
since  then,  and  with  every  reason,  the  other  opinion  has  been  accepted;  that 
is  to  say,  that  debts  should  be  paid  by  all  kinds  of  heirs."  According  to  this 
formula,  the  movable  liabilities  would  have  followed  the  movable  assets  and  the 
immovable  liabilities  the  immovable  assets.  But  this  is  only  one  of  the  first 
steps  towards  the  final  giving  up  of  the  old  principle.  —  3d.  The  debts  of  each 
spouse  fall  into  the  conjugal  community  affecting  movables;  in  the  system  with- 
out community  the  debts  of  the  wife  are  charged  upon  the  husband,  because  he 
takes  the  movables;  the  wife  of  a  noble  renounces  the  movables  in  order  not 
to  have  any  debts  to  pay. — 4th.  Same  charge  for  the  guardian.  —  5th.  The 
testamentary  executor  has  the  seisin  of  the  movables,  and  at  the  same  time 
the  obligation  of  paying  the  debts. 

2  Article  1409. 

3  Lehr,  "Dr.  Anglais,"  p.  157. 

*  Terminology  (the  same  thing  in  general  for  pledge-giving  of  movables  or 
immovables),  "gage,"  "wage,"  "vadium,"  "guadium,"  "gaigium,"  "vadi- 
monium":  Thevenin,  "Textes,"  Table;  Ragueau,  see  "Desgagement,"  "Contre- 
gage."  To  pledge  a  fine;  that  is  to  say,  to  furnish  a  pledge  to  guarantee  its 
payment;  to  pledge  the  law,  to  pledge  one's  movables.  Pledges  in  the 
eense  of  salary:  Giraud,  "Essai  s.  I'llist.  du  Dr.  Fr.,"  II,  28;  "Bourg.,"  125; 
Bourdot  de  Rich.,  Ill,  234.  CJ.  the  German,  "  Wette,"  "  Gewette."  —  "  Nans," 
"namps,"  "namium,"  c/.  the  German  "nahme,"  "nehmen"  (to  take).  Pledge- 
giving  ("nantissement"),  means  putting  in  pledge.  —  "Phand"  (German), 
"pant"  ("L.  Fris.  Add.,"  8,  2),  "Pfand."  "Contrepan,"  Giraud,  II,  41(5;  see 
Ragueau;  "  Hainaut,"  95 :  rents  compensated  out  of  an  inheritance.  —  "  Pignus," 

583 


§  418]  OBLIGATIONS  .  [Chap.  Ill 

from  hand  to  hand.^  We  have  already  seen  what  part  the  pledge 
played  in  the  formation  of  obligations  which  were  established  by 
agreements.  By  being  given  a  pledge,  the  creditor  received  abso- 
lute satisfaction;  ^  thenceforth  there  was  nothing  more  for  him  to 
claim  from  the  debtor;  he  had  been  paid  in  advance.^  The  debtor 
simply  had  the  power  to  demand  the  restitution  of  the  pledge  by 
giving  what  he  had  promised.^  The  pledgee  creditor  thus  ac- 
quired the  ownership  and  the  seisin  of  the  pledge;  he  could  hold 
it  as  against  everybody,  recover  it  if  it  were  taken  away  from 
him,  —  at  least  in  the  case  of  theft  or  loss,^  He  had  the  right  to 
make  use  of  it  and  to  turn  it  to  account  ^  on  his  own  responsi- 
bility; for,  if  when  the  debt  came  due  and  the  debtor  asked  the 
restitution  of  the  pledge,  the  creditor  found  it  impossible  to  carry 
out  this  restitution,  his  liability  was  enforced;  he  answered  for 
the  entire  loss  or  for  deterioration,  without  any  distinction  being 
drawn  between  cases  of  accident  and  cases  where  it  was  his  fault 
or  where  fraud  was  present.*^ 

"penh,"  "pignorare."  —  "Abotum,"  "about,"  "contrabout."  —  "Assignare," 
"assignat"  (assignment),  "assenement,"  "assiette"  ("assignare  pecuniam 
supera  terram").  —  "Obligare,"  obligation,  "impedire,"  to  encumber,  "era- 
bargar"  ("Beam"),  "thiansser"  (id.),  "poderium,"  "poderagium"  ("Cou- 
tume  de  Toulouse").  —  See  Du  Cange,  Ragueau;  Brunner,  II,  445;  Franken, 
op.  cit.  —  "Fiducia"  among  the  Lombards  for  the  pledge  given  by  agree- 
ment: Fertile,  IV,  515.  —  "Toulouse,"  131:  "Ponere  bannum  in  bonis." 

1  Boutaric,  I,  64,  102. 

2  "Liut.,"  108,  however,  allows  the  creditor  to  claim  the  payment  of  that 
which  is  due  him  when  he  acquires  the  ownership  of  the  pledge. 

^  Dareste,  p.  57  (revocable  contracts).  On  the  question  of  the  formation  of 
obligations  by  agreements  and  on  the  point  of  knowing  whether  the  responsi- 
bility can  exist  independently  of  a  debt,  cf.  also  Horten,  "Personal  execution," 
1894,  and  Von  Schwind,  "Wesen  u.  Inhalt  des  Pfandrechts,"  1899  (account 
given  by  Pappenheim,  in  "K.  V.  J.,"  XLII,  513);  "Ord."  of  1206,  7. 

*  Cf.  fiduciary  alienation  at  Rome;  "Cout.  du  Valais,"  104. 

^  Cf.  binding  of  immovables.  Movables  are  more  liable  to  perish  or  to  de- 
teriorate than  immovables.  They  will  be  better  preserved  if  they  are  not  made 
use  of,  whereas  the  creditor  who  has  received  an  immovable  as  a  pledge  cannot 
help  making  some  use  of  it;  for  example,  in  order  to  cultivate  it.  If  the  pledgee 
delivers  the  movable  to  a  third  party  the  latter  becomes  the  owner  "erga 
omnes";  it  makes  very  little  difference  whether  the  act  took  place  with  the 
consent  of  the  pledgor  or  in  spite  of  him;  in  the  matter  of  immovables, 
putting  a  third  party  in  possession  is  not  sufficient  to  deprive  the  owner  of 
the  right  of  reclaiming.  As  to  this  right  of  reclaiming  in  the  matter  of  movables, 
cf.  herein  loc.  cit.  and  in  the  existing  law,  "  Saisie-Revendication " :  Glasson, 
"Proced.,"  II,  4.36. 

*  With  regard  to  pledges  that  eat  ("essende  Pfander"),  it  was  natural  to 
allow  the  pledgee  to  make  use  of  them  because  he  had  to  bear  the  expenses  of 
keeping  them.  As  to  their  accidental  injury,  cf.  Heusler,  II,  204;  Huber,  IV, 
822,  n.  21.    Cf.  "Wis.,"  5,  6,  4. 

^  If  the  pledge  perished  through  some  mischance  the  debtor  did  not  claim 
its  restitution  and  the  creditor  suffered  the  loss,  —  a  rule  which  has  been  pre- 
served even  to  our  time  in  Schwvz:  Huber,  817  (example  in  the  fifteenth  cen- 
tury), 822,  n.  21. —  "L.  Lang.  Car.,"  108;  J.  d'Ibelin,  56;  "Sachsensp.,"  3, 

584 


Topic  8]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES    [§  419 

§  419.  The  Same.  —  (B)  Tlie  Pledge  passes  to  the  Condition  of 
an  Accessory  Security.  For  a  long  time  after  the  idea  of  the  obli- 
gation formed  by  consent  came  into  existence  a  pledge  was  still 
demanded  from  the  debtor,  but  the  giving  of  the  latter  did  not 
have  the  effect  of  freeing  the  debtor;  he  did  not  cease  to  be  held 
personally  liable.^    Also,  the  creditor  had  only  two  essential  rights, 

—  that  of  holding  the  pledge  so  long  as  he  was  not  paid,  and  that 
of  having  it  sold  if  he  was  not  paid,  to  realize  the  amount  which 
was  due  him  out  of  the  price  of  the  sale.^  He  was  not  allowed 
to  make  any  use  of  the  pledge.  His  responsibility  was  limited, 
and  in  case  of  total  loss  by  accident  of  the  object  which  was 
pledged  the  creditor  could  still  demand  of  the  debtor  the  per- 
formance of  his  promise.  Thus  a  return  was  made  to  the 
Roman  rules.  The  forfeiture  clause  was  forbidden,  as  it  had 
been  by  a  law  of  Constantine.^  The  Ordinances  introduced  a  few 
rules  relating  to  form,^  but  the  actual  giving  of  the  possession  of 
the  object  which  was  pledged  was  always  required,  owing  to  the 
reasons  which  have  already  been  pointed  out.^  The  rule  thus 
being  that  the  pledgee  could  keep  the  object  with  which  he  had 
been  provided  until  he  had  been  paid,  he  was  recognized  as  having 
a  lien  upon  the  price  of  this  object  if  he  gave  up  its  possession  only 
in  order  to  have  it  sold.^  Sometimes  even  the  existence  of  an 
implied  pledge  is  admitted,  and,  consequently,  of  a  preference  for 

5,  4.  —  The  responsibility  of  the  pledgee  existed  in  another  sense:  he  was 
responsible  for  the  damage  caused  by  the  object  given  as  a  pledge.  C/.,  how- 
ever, "L.  Alam.,"  86,  2;  "Fris.  add.,"  8,  1;  Heusler,  II,  203.  Distinction  be- 
tween the  pledge  given  by  agreement  and  the  pledge  taken  by  distraint. 

—  "Sachsensp.,"  3,  5,  4  and  5;  Boutaric,  I,  26;  "A.  C,  Anjou,"  II,  412. 

1  Agreements  by  which  the  debtor  promises  to  pay  even  if  the  pledge  is 
not  restored  to  him  because  it  has  perished  through  some  accident.  E.xample 
in  Heusler. 

2  The  Germans  contrasted  the  "Verkaufspfand,"  pledge  with  the  right  of 
selling  it,  with  the  "  Verfallspfand,"  pledge  which  becomes  the  property  of  the 
creditor  if  he  is  not  paid  when  the  debt  matures:  "Liut.,"  108,  109;  "Aripr. 
et  iUb.,"  2,  21;  Beaumanoir,  68,  10;  "Montpellier,"  49;  "Jostice,"  p.  313. 

'  Contrary  to  the  tendencies  of  the  old  law:  Civil  Code,  2078;  Fertile,  IV, 
541;  Pothier,  "Nantiss.,"  no.  19;  "C.  J.,"  8,  35,  3. 

*  Ordinance  of  1673,  6,  8,  9:  drawing  up  of  a  notarial  deed  naming  the  sum 
lent  and  the  pledges  delivered  in  order  to  avoid  frauds  and  to  fix  the  date  of 
the  pledge-giving  in  case  of  a  failure.  (7/.  Jousse  on  this  text  (the  notarial  act 
is  useless  "inter  partes") :  Civil  Code,  2074;  "Co.,"  446.  —  As  to  the  pledge  of 
claims,  cf.  Order  of  the  Court  of  Aides  of  March  18,  1769  (transfer  under  the 
name  of  pledge-giving):  Tambour,  II,  162,  394;  Pothier,  "Hyjioth.,"  no.  211. 

*  Putting  in  pledge  of  the  movables  of  another;  the  pledgee  creditor  is  pre- 
ferred to  the  owner,  excepting  in  case  of  lo.ss  or  theft:  Iluher,  822. 

*  The  "Ord."  of  1667  compelled  the  pledgee  to  have  the  sale  carried  out  by 
means  of  a  bailiff,  just  as  in  the  case  of  movables  that  had  been  distrained  ui)()n; 
but  these  formalities  could  be  dispensed  with  in  the  contract  of  pledge-giving: 
Pothier,  "Nantissement,"  no.  19  et  seq.;  "Hypoth.,"  no.  216. 

585 


§  419]  OBLIGATIONS  [Chap.  Ill 

the  benefit  of  certain  of  the  creditors.^  But  the  mortgaging  of 
movables  retained  by  the  debtor  was  never  accepted  in  the  French 
law:^  "Movables  cannot  be  followed  by  way  of  a  hypothec" 
(Loysel,  487). 

§420.  Private  Distraint  ("Pigneratio")  ^  upon  Movables.^  — 
This  means  of  taking  justice  into  one's  own  hands  is  naturally 
applied  to  obligations  arising  "ex  delicto,"  in  the  case  of  which 
the  giving  of  a  pledge  by  means  of  an  agreement  cannot  be 
conceived  of.^  It  was  also  allowable  to  practise  this  form  of  dis- 
traint for  obligations  which  arose  from  the  formal  contract  or 
"  wadiatio,"  either  as  against  the  surety  or  as  against  the  debtor.^ 
Sometimes  the  "pigneratio"  even  affected  the  relatives,  or  it  was 
carried  out  under  the  form  of  reprisals  against  the  neighbors,  or 
inhabitants  of  the  same  locality,  or  the  citizens  of  the  same  town/ 
Originally,  the  creditor  was  authorized  to  take  possession  of  the 
movables  of  the  debtor  without  the  permission  of  the  judge,^ 
whatever  their  value  might  be.^  But  the  older  documents  show 
that  distraint  is  subject  to  certain  forms,  such  as  a  triple  pre- 

1  Cf.  existing  law:  Valette,  "Privil.  et  Hyp.,"  1846;  Planiol,  "Dr.  Civ.,"  II, 
763. 

2  In  Switzerland  a  sort  of  mortgage  on  movables;  for  example,  at  Zurich  in 
the  fourteenth  century,  by  making  a  declaration  before  the  municipal  council 
without  any  putting  in  possession.  Cf.  Stobbe,  II,  686  (example  of  the  giving 
of  a  pledge  without  any  physical  handing  over,  especially  at  Liibeck,  at  a  fairly 
recent  period). 

3  Cf.  "pignorLs  capio"  of  the  Roman  law.  Besides  the  word  "pignoratio," 
"pigneratio,"  they  also  say  "captio,"  "districtio"  (distress  in  English  law), 
etc. :  see  Du  Cange.  The  "  Ord."  of  1260  (I,  293)  prohibits  abandonment,  "  qui- 
dam  captio,"  at  Compiegne.  Cf.  the  expression:  "To  take  one's  pledge  by 
abandonment":  P.  de  Fontaines,  15,  29,  p.  129;  Beaumanoir,  43,  13.  —  To  the 
French  "saisie  (distraint)  corresponds  the  German  "Pfandung":  Collinet, 
p.  94;  "Toulouse,"  108,  137. 

^  Barbarian  laws:  "Burg.,"  19;  "Bai.,"  12;  "Roth.,"  249  et  seq.;  "Liut.," 
108  et  seq.;  "Wis.,"  5,  6.    Irish  law,  D'Arbois  de  Jubainville,  op.  cit. 

B  "Sachsensp.,';  2,  27,  4;  2,  28,  2;  "Schwabensp.,"  231  (280). 

8  WTiich  is  readily  understood  if  the  "  wadium  "  began  by  being  a  real  pledge; 
the  creditor  who  is  satisfied  with  a  nominal  pledge  has  a  right  to  distrain 
upon  a  real  pledge  if  he  is  not  paid  when  the  debt  matures:  "Roth.,"  235; 
"Liut.,"  15.  The  jurisconsults  of  Pavia  were  unsettled  as  to  whether  "pig- 
neratio" was  applied  outside  of  the  "wadiatio":  "Glos.  Roth.,"  235;  "Expos. 
Liut.,"  8,  6;  107;  "Burg.,"  19,  5  (giving  of  surety).  Heusler,  II,  241 :  distraint 
by  an  individual  arose  from  the  executory  character  of  the  "wadiatio";  Fertile, 
IV,  530  (texts). 

7  "Roth.,"  247;  "Capitul.,"  II,  142  (c.  12);  Schmid,  "Ges.  d.  Angels.," 
p.  642;  Brunner,  II,  448.  Right  of  marque  or  reprisals:  "B.  Ch.,"  II,  529;  IV, 
2M,^12;  Fasquier,  "Inst.,"  176.  See  "Suretyship,"  "Hostage."  Reprisals 
persisted  in  the  "jus  gentium"  just  because  of  the  difficulty  in  having  obliga- 
tions carried  out. 

8  Lombards  ("Reg.  Farfa.,"  2,  44,  45),  Sweden  {Amira,  "0.  R.,"  I,  234), 
Saxony. 

^  "Liut.,"  108  (three  times  the  amount  of  the  debt). 

586 


Topic  8]    EXECUTION  UPON  POSSESSIONS,  REAL  SECURITIES    [§  420 

liminary  summons,  the  presence  of  witnesses,  and  perhaps  the 
pronouncing  of  certain  customary  formulae.^  If  the  customary 
formahties  are  lacking,  the  distraint  is  irregular;  it  obliges  the 
payment  of  a  composition  by  the  creditor,  without  taking  into  ac- 
count the  right  which  was  given  to  the  debtor  of  offering  resist- 
ance.^ After  the  Frankish  period  it  is  only  authorized  if  carried 
out  with  the  permission  of  the  judge,  according  to  the  majority  of 
the  laws,  a  measure  which  lessens  the  abuses  to  which  it  gave  rise.^ 
The  pledge  which  had  been  distrained  was  treated,  as  a 
general  rule,  in  the  same  way  as  a  pledge  given  by  agreement.'' 
Also,  we  believe  that  during  the  primitive  period  the  creditor 
acquired  at  one  and  the  same  time  both  the  possession  and  the 
ownership  of  the  object  distrained  upon,  saving  the  power  of  the 
debtor  to  redeem  his  goods.  This  appropriation  is  quite  natural 
under  an  economic  system  where  the  payment  of  debts  is  read- 
ily accepted  in  movable  objects.  But  the  barbarian  laws  post- 
poned it  until  the  expiration  of  a  fixed  period  in  which  to  release 
the  object  which  had  been  distrained;  until  this  time  the  creditor 
has  only  the  right  of  retaining,  or,  at  the  most,  the  right  of 
enjoyment.^  The  feudal  Customs  give  him  the  right  to  sell, 
sometimes  allowing  him  to  carry  out  the  sale  himself;  but 
more  often  the  sale  is  carried  out  under  the  public  authorities.^ 
After  the  barbarian  period  the  abuses  of  methods  of  violence, 

1  "Sal.,"  50,  2;  74;  "Burg.,"  19,  5;  107,  7;  "Roth.,"  249  et  seq.;  "Cnut," 
II,  19.    Cf.  Bruriner,  II,  447;  Collinet,  p.  113. 

2  "Burg.,"  "Bai.,"  loc.  ciL;  "Sal.,"  75;  "Roth.,"  246;  "Liut.,"  41;  "Ina," 
9.  —  "Rescousse"  in  the  feudal  period:  Esmein,  p.  122;  Collinet,  p.  125. 

3  "Sal.,"  50,  2;  "Burg.,"  19;  96;  107,  7;  "Bai.,"  13.  1,  3;  c/.  "Wis.,"  5, 

6,  1;  Brunner,  II,  447  (other  laws);  Cap.  of  787,  c.  14  (I,  200):  prohibition 
"tollere"  or  "invadere"  the  property  of  another  "sine  judicium";  cf.  I,  192, 
c.  6;  330,  c.  5;  "Ina,"  9;  "Cnut,"  2,  19;  "L.  Henrici  I,"  51,  3;  "Const,  pads" 
of  Frederick  II,  1235,  c.  10;  Fertile,  IV,  531.  Cf.  in  the  Anglo-Norman  sources 
"liberatio  namnorum,  vetitum  namii":  necessity  of  restoring  the  pledges  upon 
receiving  surety  ("replegiare,"  replevin) :  Bracton,  157  et  seq.;  "Summa  Norm.," 

7.  Provisional  possession  with  pledges:  Peronne,  18.  As  to  provisional  pos- 
session see  Beaumanoir,  c.  53.  Irish  law,  solvency  of  the  person  making  the 
distraint. 

''  Cf.,  however,  the  responsibility  of  the  pledgee:  "Fris.  add.,"  9,  2. 

5  "Verfallspfand."  On  the  responsibility  of  the  pledgee:  "Roth.,"  252. 
According  to  "  Liut.,"  Inc.  cit.,  the  creditor  can  retain  the  pr()i)crty  twelve  days, 
can  have  the  enjoyment  of  it  twenty  or  sixty  days,  and  then  the  ownership: 
Fr.  Gaudenzi,  12;  Exp.  on  "  Roth.,"  247.  —  Reaction  against  the  forfeiture  clause: 
"Wis.;"  5,  6,  3;  "Capit.,"  VII,  299,  313;  Dig.  X,  3,  21,  7.  —  In  the  French 
Customs  sale  of  the  pledge  and  payment  of  the  creditor  out  of  the  price: 
Esmein,  p.  118  et  seq.;  Collinet,  p.  124.  English  law:  appraisement  and  con- 
ferring of  the  property  upon  the  creditor:  Glasson,  "Inst.  Angl.,"  Ill,  328.  — 
Cf.  Irish  law. 

«  "Verkauf.spfand":  /.  d'Ibelin,  122;  Ph.  de  Navarre,  78;  "C.  des  Bourg.," 
71,  76;  Beaumanoir,  43,  16;  Fertile,  IV,  543;  "A.  C,  Picardie,"  p.  41. 

587 


§  420]  OBLIGATIONS  [Chap.  Ill 

such  as  the  "pigneratio,"  resulted  in  its  being  forbidden/  but 
customs  are  stronger  than  laws;  it  persisted  and  survived  the 
proscription  and  was  revived  to  a  certain  extent  in  feudal  times 
under  the  rule  of  the  "Faustrecht,"  ^  and  did  not  completely  dis- 
appear until  the  monarchic  period,  as  an  accompaniment  of  the 
progress  of  public  power.^  At  any  rate,  before  having  arrived  at 
this  solution,  the  old  institution  had  been  altered  and  corrected  on 
many  points,  and  it  had  become  an  exception  or  a  privilege,  the 
maintaining  of  which  was  justified  because  of  the  status  of  the 
creditor  (king,  nobles),^  that  of  the  debtor  (alien)  or,  finally,  owing 
to  the  nature  of  the  debt  (suretyship).^  We  may  note  the  prin- 
cipal changes  to  which  it  has  been  subjected,  —  prohibition  of 
seizing  as  a  pledge  "alium  pro  alio,"  ^  of  distraint  on  certain  ob- 
jects, such  as  those  which  are  indispensable  to  the  living  of  the 
debtor  (clothing),  and  horses  and  cattle,^  of  distraining  in  certain 
localities,^  and  the  tendency  to  prevent  the  creditor's  acquiring 

1  "Wis.,"  5,  6, 1;  "Ed.  Theod.,"  123;  "Capit.  Sax.,"  25;  787,  c.  14  (I,  200); 
c/.  ibid.,  782,  6  and  825,  5  (I,  192,  330).  There  are  even  many  who  tliink  that 
the  SaUc  Law  no  longer  admitted  of  distraint  bj'  an  individual:  Fertile,  IV,  531. 

2  Collinet,  op.  cit.; Brunner,  II,  241.  —  J.  d'lbelin,  118-122;  "C.  des  Bourg.," 
71-83;  "Summa  Norm.,"  59,  60,  89;  "  Jo.stice,"  pp.  174,  274,  313;  Beaumanoir, 
30,  81;  "Olim,"  Table,  see  "Captio  Bonorum,"  etc.;  "Bergerac"  (in  1337),  29; 
"Siete  Part.,"  5,  13,  11. 

3  Loysel,  890:  "Acts  of  violence  are  forbidden";  P.  de  Fontaines,  XV,  29: 
privilege  of  nobles;  J.  Le  Coq,  "Q.,"  223:  "A  nobleman  himself  cannot  distrain 
where  he  has  not  jurisdiction";  Viollet,  "Et.  de  St.  Louis,"  I,  97,  329.  The 
Books  of  Customs  ("Artois,"  30,  10;  "Et.  de  St.  Louis,"  I,  138)  and  muni- 
cipal charters  ("Soissons,"  1;  "Amiens,"  4;  "Verviens,"  24,  etc.;  Collinet, 
p.  102)  often  forbade  it.  —  Suspension  of  the  carrying  out  of  the  distraint  for 
a  certain  time:  Collinet,  p.  128. 

*  Cf.  Writs  of  Arrest  formerly  granted  by  the  farmers  and  collectors  of 
the  king's  taxes  (see  Ferriere),  and  still  to-day  by  financial  administrations 
(Revolutionary  laws):  Haurion,  "Dr.  Administr.,"  3d  ed.,  see  Table. 

*  Distraint  upon  the  pledge:  "Ord.,"  I,  9.  On  Beaumanoir,  43,  15,  cf. 
Viollet,  "Et.  deSt.  Louis,"  I,  329,  187;  "Jostice,"  303,  313;  "Et.  deSt.  Louis," 

I,  122;  "Gr.  Cout.  Norm.,"  60;  Boutanc,  1,  101;  "Ass.  de  Jerus.,"  "C.  des 
Bourg.,"  83;  Esmein,  p.  109  et  seq.;  Collinet,  p.  153.  Cf.  as  to  this,  "Surety- 
ship." The  "  contre-brevet "  of  warranty  allows  the  surety  to  dispense  with 
using  the  individual  distraint.  In  Switzerland  individual  distraint  is  only  possi- 
ble in  the  case  of  a  "redliche,"  "kuntliche  schuld"  (a  debt  acknowledged  at 
law);  Heusler,  II,  208;  Huber,  IV,  826.  — "T.  A.  C,  Bret.,"  329;  "Avignon," 
23,  42. 

6  "Roth.,"  247;  "Burg.,"  19,  3;  "Pactus  Alam.."  3,  7;  Cassiod.,  "Var.,"  IV, 
10.  —  "Sois-sons,"  11;  Collinet,  p.  107;  A.  Thierry,  "Mon.  de  I'Hist.  du  Tiers 
Etat,"  IV,  40.    A  subject  is  also  arrested  for  the  debt  of  his  lord:  Tambour, 

II,  48;  "Troyes"  (in  1230),  Art.  23;  "Fors  de  Bigorre,"  9. 

^  "Cod.  Th6od.,"  2,  30,  1  (cattle,  farm  slaves:  interests  of  agriculture  and 
the  treasurer);  "Burg,  add.,"  1,  18;  "Pactus  Alam.,"  5,  4;  "L.  Alam.,"  67,  1; 
"Bai.,"  13,  4,  5;  "Roth.,"  250  et  seq.;  "Capit.,"  I,  320;  II,  134.  —  Customs  of 
the  South;  for  example,  "Avignon,"  41. — Beaumanoir,  54,  7.  —  "Ord."  of 
1319,  19;  Tambour,  II,  125;  Fertile,  IV.  538. 

8  Collinet,  p.  118. 

588 


Topic  8]    EXECUTION   UPOX   POSSESSIONS,  REAL   SECURITIES    [§  420 

ownership  of  the  pledge  without  any  other  form  of  proceed- 
ing.^ This  institution  often  passes  to  the  status  of  the  privilege 
which  has  been  agreed  upon  and  stipulated  for  by  the  creditor,^ 
but  it  is  allowed  without  any  agreement  against  strangers  and 
aliens  (towns  where  attachment  was  allowed).^  Where  it  per- 
sisted longest,  outside  of  the  case  of  distraint  against  aliens,  was 
in  the  three  following  applications,  which  are  especially  remark- 
able because  they  do  not  assume  a  contract  or  judgment:  ^  1st. 
Distraint-pledge  levied  by  the  lessor  of  a  copyhold,  or  the  lessor 
for  a  rent-charge,  on  the  movables  of  the  copyholder  or  lessee 
for  non-payment  of  the  rent.^  2d.  Right  of  the  innkeeper  to  dis- 
train upon  the  movables  of  the  traveler  who  does  not  pay  his 

1  B.  de  Richeb.,  IV,  1067;  II,  1009. 

2  A  clause  which  is  already  frequent  in  Lombard  deeds  (Pertile,  IV,  531; 
"Liut.,"  109)  and  which  is  made  use  of  until  the  eighteenth  century  in  Switzer- 
land and  in  Germany.  —  Huber,  IV,  825.  How  are  we  to  reconcile  the  exist- 
ence of  these  clauses  with  the  prohibition  against  individual  distraint? 
Heusler,  II,  208. 

^  The  Privilege  of  Arrest  given  to  the  inhabitants  of  Paris  first  of  all  over 
their  fellow  townsmen  themselves,  and  later  only  over  their  alien  debtors: 
"Louis  le  Gros,"  1134  ("Ord.,"  I,  6;  "Confirm.,"  II,  437;  IX,  464);  "Paris, 
A.  C.,"  192;  "N.  C,"  173;  Desmares,  233;  "Gout.  Not.,"  49;  "Gr.  Gout.,"  219; 
Collinet,  pp.  100,  135,  141;  Ferriere,  Mer^w,  see  "Ville  d' Arret";  "Avignon," 
42,  44;  "Montpellier,';  32;  "Aries,"  165;  "Martel,"  18,  19.  As  to  the  distraint 
on  ahens  in  the  existing  law:  Gode  Civ.  Proc,  822;  Glasson,  "Proced.,"  II, 
433;  Heusler,  II,  208;  Tambour,  II,  51.  —  Huvelin,  "These"  ("Execution  des 
Contrats  en  Foire").  —  In  the  fourteenth  Century  the  distraint  had  to  be  car- 
ried out  by  the  sergeant,  and  the  privilege  of  the  citizens  was  reduced  to 
being  able  to  have  this  distraint  carried  out  without  any  written  author- 
ity: "Ord."  of  1351;  "Const.  Ghat.,"  9.  —  Abolition,  Law  of  Sept.  7,  1790, 
art.  13. 

*  "Gout,  de  Paris,"  tit.  8. 

5  The  lessor  of  a  house  had  originally  the  right  to  distrain  upon  the  mov- 
ables which  happened  to  be  in  the  house  let,  to  take  them  away  and  sell  them 
for  his  own  benefit:  "Olim,"  III,  p.  916,  no.  77;  p.  998,  no.  60;  p.  1007,  no.  65 
(in  1314—15);  Beatimanoir,  34,  16;  38;  9  (but  at  the  same  time  he  states  that 
the  custom  was  "to  take  off  the  door  of  the  house,"  that  is  to  say,  to  render  it 
untenantable,  in  order  to  compel  tlie  lessee  to  pay  what  he  owed  or  else  to  go 
away,  30,  39);  Boutaric,  I,  102;  "Jostice,"  9,  4,"  1;  9,  9,  1;  P.  de  Fontaines, 
p.  119;  "Gout,  des  Bourg.,"  90.  —  Afterwards  the  right  of  the  lessor  became 
weaker  under  the  name  of  execution  by  way  of  security  ("saisie-gagerie");  he 
only  had  a  privileged  distraint  over  movables  without  being  able  to  take  them 
away  and  also  being  compelled  to  have  them  sold  by  the  authority  of  the  law. 
Movables  which  had  been  taken  out  of  the  house  could  not  be  reclaimed;  but 
the  "N.  G.  de  Paris,"  171,  allows  of  their  being  reclaimed  under  certain  con- 
ditions (Order  of  i:367;  Lucius,  "Placit.,"  10,  3,  1);  "Gout.  Not.,"  3,  31,  39; 
"Gr.  Gout.,"  2, 15,  37;  3,  01  (pp.  126,  217  el  seq.,  248, 429,  etc.);  "  Roisin,"  p.  71; 
Loysel,  476,  890;  Buche,  "  N.  R.  H.,"  1884,  76;  Collinet,  p.  166.  The  person  who 
takes  them  is  obliged  to  leave  the  house  sufficiently  furnished.  In  Paris  execu- 
tion by  way  of  securitv  is  only  granted  to  the  amount  of  three-fourths  of  the 
debt.  Cf.  Glasson,  "Proc6d.  Civ.,"  II,  4:27.  — Uuber,  IV,  824;  Pertile,  IV. 
533,  538;  Pollock  and  Maitland,  II,  573.  —  Several  of  the  Customs  also  allowed 
the  lessor  of  a  farm  to  distrain  upon  the  products:  "Paris,"  161  ei  seq.  —  Also, 
"Const.  Chat.,"  62,  63;  "L.  d.  Droiz,"  913;  Tambour,  II,  365. 

589 


§  420]  OBLIGATIONS  [Topic  III 

charges.^     3d.  Distraint  on  the  domestic  animal  damage-feasant; 

formerly  they  even  had  the  right  to  kill  it,  or  to  appropriate 
it;  the  later  law  allows  the  one  who  has  suffered  the  dam- 
age to  distrain  only;  and  moreover,  certain  animals  are  not  sub- 
ject to  this  distraint.  The  one  distraining  must  take  the  animals 
distrained  before  the  judge  within  twenty-four  hours;  they  are 
sold  if  necessary,  and  the  price  obtained  for  them  is  used  to  make 
good  the  damage.^  Sometimes  the  distraint  is  only  carried  out 
upon  the  hat  of  the  shepherd.^ 

§  421.  Pledge  by  Legal  Process.  —  (A)  Barbarian  Laws.^  Dis- 
training at  law  ^  is  only  a  rounding  out  of  private  distraint;  ^  the 
intervention  of  the  authorities  avoids  quarrels  between  individuals 
and  prevents  the  creditor  from  abusing  his  rights,  the  debtor  from 
offering  opposition  to  the  seizure.  Already  the  barbarian  laws 
had  regulated  it;  thus  the  Salic  Law,  50,  3,^  lays  it  down  that  the 

1  Retention  and  lien  in  the  latest  stage  of  the  law,  whereas  formerly  he 
sold  the  pledges  distrained  upon  and  paid  himself  back:  "Paris,"  175;  cf. 
Desmares,  176,  191,  368.  "Cout.  Not.,"  50;  Collinet,  p.  175.  See  also:  "Jos- 
tice,"  9,  9,  1;  Art.  54;  "Navarre,"  3,  13;  Huber,  IV,  827. 

-  In  the  very  old  law  vengeance  is  taken  on  the  animals  in  the  same  way  as 
upon  persons:  from  this  arose  the  right  to  kill  them  (formerly,  "Sal.,"  9,  1; 
"Wis.,"  8,  3,  15;  even  at  the  present  time,  "Ina,"  42;  "Roth.,"  350  et  seq.; 
"Liut.,"  151;  "Burg.,"  23,  89;  "add.,"  1,  2;  "Bai.,"  14,  7;  in  case  of  a  recur- 
rence, Norway).  Of  this  there  remained  the  permission  for  the  owner  of  the 
land  to  kill  hens  and  geese  or  poultry  generally:  Grimm,  "R.  A.,"  595;  Guy 
Coquille,  on'"Niv.,"  15,  4;  Chaisemartin,  225.  But  it  was  forbidden  to  kill 
cattle  and  horses.  In  the  law  of  the  second  period  animals  taken  damage- 
feasant  are  confined  "in  clausuram,  in  parcum"  (German  "schutten":  cf.  to 
impound) ;  they  are  fed  and  kept  there  until  their  owner  has  paid  the  damage, 
and  he  is  given  notice  by  making  known  the  distraint  to  the  neighbors  or  to 
himself,  if  he  is  known.  In  case  he  does  not  come  forward  the  animal  belongs 
to  the  person  who  made  the  distraint:  "Sal.,"  9;  "Rib.,"  85;  "Bai.,"  14,  17; 
"Burg.,"  23,  49;  "Wis.,"  8,  3,  13;  "Roth.,"  343  et  seq.;  "Liut.,"  86.  —  Many 
of  the  Customs  admit  that  "the  stallion  as  well  as  the  bull  is  free,"  because  of 
their  usefulness  as  animals  capable  of  reproducing  their  kind;  the  owner  upon 
whose  land  they  trespass  only  has  a  right  to  drive  them  off:  Chaisemartin, 
p.  228;  "Fors  de  Bigorre,"  11.  —  In  the  latest  state  of  the  law  "he  who  finds 
animals  doing  damage  cannot  keep  them;  he  must  hand  them  over  to  the  law 
within  twenty-four  hours";  they  are  sold  at  judicial  sale,  just  as  an  ordinary 
pledge,  and  the  price  obtained  serves  to  make  good  the  damage:  Huber,  IV, 
828. 

'  Ragueau,  see  "Desgagement." 

^  Cf.  especially  Brunner,  II,  452  (bibl.). 

6  "Strudislegitima,"  "Rib.,"  32;  Edict  of  Chilperic,  8  ("extrudere  ")  applied 
in  the  case  of  "fides  facta"  and  of  refusal  to  carry  out  a  judgment,  at  least 
at  the  end  of  the  sixteenth  century:  "Sal.,"  106  (Hessels);  Edict  of  Chilperic, 
7.  Cf.  administrative  distraint  for  the  payment  of  a  fine  for  breaking  the  king's 
ban,  and  for  taxes:  "Capit.,"  I,  165,  c.  6;  Greg.  Tours,  5,  26;  10,  7. 

«  "Roth.,"  251;  Fr.  Gaudenzi,  12,  13.  Cf.  " Friedlosigkeit " :  among  the 
Scandinavians  and  the  Anglo-Saxons  the  chief  men  of  the  judicial  assembly 
distrained  upon  the  movables  of  the  man  who  refused  to  appear  before  them. 

^  Onthistextseethebibl.inGefc/vc«,  p.  197.  — Irish  law,  "N.R.H.,"  1888, 

590 


Topic  8]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES    [§  422 

creditor,  by  virtue  of  the  "fides  facta,"  himself  goes  to  the  "grafio" 
of  the  place  where  the  debtor  lives,  takes  hold  of  the  "festuca" 
and  pronounces  a  formula  which  asserts  that  the  debtor  who 
has  been  regularly  summoned  has  not  carried  out  the  promise 
wliich  he  made  which  affected  such  and  such  an  object,  and  that 
therefore  his  possessions  could  be  seized  by  the  "grafio,"  for  which 
the  creditor  would  be  responsible.^  Upon  which,  the  "grafio" 
took  seven  fit  and  proper  "  rachimbourgs "  ^  with  him  and  went  to 
the  house  of  the  debtor,  where,  after  a  last  summons  to  pay,  he 
took  possession  of  the  goods  of  the  debtor  to  the  extent  of  the 
sum  which  was  due ;  the  estimate  was  made  by  the  "  rachimbourgs ' ' ; 
the  creditor  kept  two-thirds  and  the  "grafio"  took  the  other  third 
by  way  of  "fredus."  If  the  "grafio"  distrained  on  more  than  the 
law  allowed,  he  had  to  pay  the  "wergeld"  or  else  lose  his  life.^ 
The  debtor  among  the  Salian  Franks  had  no  right  to  offer  any 
opposition  to  the  distraint  under  the  pretext  that  it  was  irregular; 
his  only  resource  was  to  apply  to  the  tribunal  of  the  king.  On  the 
other  hand,  among  the  Ripuarians  he  might  stop  the  man  dis- 
training by  planting  his  sword  before  his  door.^  The  creditor  be- 
came the  owner  of  the  movables  which  were  distrained;  otherwise, 
the  law  would  not  have  failed  to  name  a  certain  time  of  delay  for 
their  redeeming;  but  among  the  Visigoths  and  the  Lombards  he 
only  had  the  enjoyment  of  them. 

§  422.  The  Same.  —  (B)  Customary  Law.^  The  Customs  and 
the  Ordinances  regulated  distraint  at  law  ^  in  such  a  way  that  it 

303;  Law  of  Drenthe,  1608;  Seerp  Gratama,  " Rechtsgesch.  van  Drenthe," 
1883. 

1  "Tu,  grafio,  homo  ille  mihi  fidem  fecit  quem  legitime  habeo  jactivo" 
(according  to  Brunner,  II,  368,  the  debtor  who  did  not  carry  out  his  promise 
became  "  jectivus"  by  the  throwing  of  the  "festuca"  on  behalf  of  the  creditor; 
bibl.  in  Geffcken,  p.  198)  "aut  admallatum  in  hoc  quod  lex  Sahga  continet" 
(the  creditor  has  designated  him  in  accordance  with  the  Salic  Law);  "ego  super 
me  et  furtuna  mca  pono"  (movables  only,  cf.  "Sal.,"  45,  46;  Geffcken,  pp.  175, 
ISO)  "quod  securus  mitte  in  furtuna  sua  manum.  Et  dicat  de  qua  causa" 
(thing?  transaction?)  "aut  quantum  ei  fidem  fecerat."  Thus  as  a  guarantee 
of  the  regularity  of  the  execution  he  gives  his  person  and  his  possessions.  But 
it  is  difficult  to  classify  this  act:  it  is  neither  putting  in  pledge  nor  merely 
making  a  formal  contract.  At  any  rate,  the  effect  of  it  was  to  allow  the 
"grafio"  to  distrain  upon  his  person  and  his  possessions. 

2  As  to  the  meaning  of  the  word  "idoneos"  cf.  Geffcken,  p.  199. 
'  "Sal.,"  51,  and  with  regard  to  it  Geffcken,  p.  201. 

'  "Sal.,"  51;  "Rib.,"  32. 

5  Tambour,  "Voies  d'Ex^cution,"  II,  119,  226;  Collinet,  p.  115. 

^  It  is  ordinarily  termed  distraint  and  execution :  see  Ferrihre.  —  Distraint- 
Writ:  Boutaric,  I,  102.  By  means  of  a  writ  (garnishment)  based  on  a  per- 
mission granted  by  the  judge  or  on  a  protected  claim,  the  creditor  prevents  his 
debtor  who  is  himself  a  creditor  to  a  third  part,y  from  having  himself  paid  by 
this  third  party  to  the  detriment  of  the  first  creditor's  rights.     The  Code  of 

591 


§  422]  OBLIGATIONS  [Chap.  Ill 

offered  more  protection  for  the  creditor  and  the  debtor  at  one  and 
the  same  time.^  It  took  place  by  virtue  of  a  contractual  right.- 
Following  a  command  to  bring  suit  against  the  debtor/  a  sergeant  * 
(sometimes,  even,  in  the  fourteenth  century,  the  bailiff,  like  the 
"  grafio  "  of  the  Salic  Law)  takes  away  the  movables  of  the  debtor  ^ 
in  order  to  give  them  to  the  creditor  or  intrust  them  to  the  cus- 
tody of  a  neighbor;  ^  if  they  were  objects  which  could  not  be 
moved,  the  bailiff  who  was  carrying  out  the  distraint  (or  several 
of  the  bailiff's  men)  acted  as  a  custodian  ^  so  as  to  avoid  mis- 
appropriation, without  removing  the  objects  which  had  been 
distrained.  The  Ordinances  of  10G7,  t.  33,  made  this  rule  general 
and  applied  it  to  every  form  of  movable.^  Opposition  offered  by 
the  man  against  whom  the  distraint  was  carried  out  ^  could  only 
be  heard  upon  condition  of  his  paying  a  sufficient  fee  to  have 
justice  rendered  him;  ^°  even  this  did  not  prevent  the  distraint;  it 
only  had  the  effect  of  postponing  the  seizure  and  of  not  allowing 

Procedure  has  combined  these  two  methods  into  one  called  distraint-writ 
("saisie-arret"),  taking  as  the  basis  of  its  regulation  the  practice  of  the 
"  Chatelet " :  Ferriere,  see  "  Arret " ;  Glasson,  "  Proced.  civ.,"  II,  187  (exceptions 
from  the  time  of  the  old  law  in  the  case  of  pensions,  salary,  legacies  for  support, 
etc.).  — Offices,  cf.  Ferriere,  see  "Opposition  au  Sceau." 

^  Beaumanoir,  51,  6.  Cf.  sequestration,  ibid.,  51,  8  et  seq.,  51,  21.  At 
Metz  "estault"  or  distraint  by  one  of  the  mayors  assisted  by  an  alderman: 
Prost,  "Ord.  des  Maiours,"  §  32;  Loijsel,  890  et  seq.;  "Coni.  des  Ord.  de 
Guenois"  and  "Conf.  des  Gout.";  Ferriere,  on  "Paris";  Pothier,  "Proced.," 
437;  Fleury,  II,  169,  309. 

2  Post,  "Distraint  of  Immovables." 

^  Fine  for  the  man  who  does  not  pay  upon  demand  at  maturity :  Beaumanoir, 
30,  49;  "  Talion,"  ibid.,  50.    The  fine  is  avoided  by  offering  sufficient  pledges. 

*  Dangers,  "R.  hist.,"  VI,  304. 

*  Movables  which  are  excepted  for  reasons  of  general  interest  or  with  a 
humanitarian  motive:  (a)  horses,  cattle,  carts  and  agricultural  implements; 
(b)  1  cow,  3  sheep  or  2  goats,  to  help  the  debtor  earn  his  living;  (c)  1  bed  and 
the  coat  he  is  wearing.  —  Beaumanoir,  54,  7;  Langlois,  "Textes  rel.  h  Pari.," 
p.  152;  "Fragm.  d'un  Repert.  de  Jurispr.  Paris,  au  XV®  s.,"  no.  23  (edited  by 
Fagniez).  Cf.  Givil  Gode,  592,  593;  Glasson,  VIII,  671;  "Proced.  civ.,"  II, 
153;  Tambour,  II,  2.36. 

«  Grenade,  30  ("Ord.,"  IV,  18);  "T.  A.  G.,  Bourg.,"  212  (Giraud,  II,  305); 
"T.  A. G.,  Bret.,"  302;  "Ghatillon,"  1371,  art.  71;  "Orleans,"  452;  "Nivernais," 
35,  14. 

'  As  to  these  custodians  or  "nans  manjans,"  cf.  Beaumanoir,  54,  9  et  seq. 

*  "Ord."  of  1667,  Title  33.  The  creditors  could  only  have  the  seals  put  on; 
that  is  to  say,  a  seal  bearing  the  arms  of  the  king,  if  the  debtor  was  absent, 
had  failed,  or  was  imprisoned  for  debts. 

"  Fine  in  ca.se  resistance  was  offered:  Beaumanoir,  30,  54;  52,  6.  If  the 
"saisie"  keeps  his  doors  and  his  chests  closed,  the  "keys  of  the  king"  must 
be  made ;  that  is  to  say,  that  the  sergeant  can  and  should  break  open  anything 
which  is  closed:  ibid.,  54,  8.  As  to  provisional  possession,  cf.  Beaumanoir, 
c.  52.    As  to  claims,  ibid.,  c.  55. 

1"  P.  de  Fontaines,  "App.,"  10,  8.  With  regard  to  claims  of  the  king  the 
debtor  cannot  stop  the  execution,  even  by  lining  the  hand  of  justice.  "Ord." 
7,  93,  371. 

592 


Topic  8]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES    [§  422 

sale  until  after  judgment  had  been  rendered  upon  the  ground  of 
his  objection.^  The  pledge  distrained  was  sold  ^  after  a  delay 
which  varied  according  to  the  Customs,  and  which  the  Ordinances 
of  1667,  33,  12,  fixed  uniformly  at  eight  days  from  the  time  when 
notice  of  the  distraint  was  given  to  the  debtor.^  The  sale  took 
place  publicly,  in  the  open  market,  ordinarily,  and  following 
announcements  or  publication.'*  The  price  was  distributed  at  so 
much  in  the  pound  among  the  creditors;  they  received  a  dis- 
tribution by  shares,^  but  this  was  not  done  excepting  in  cases 
of  notorious  insolvency,  because  in  cases  of  that  sort  the  cred- 
itors acted  collectively  against  the  insolvent;  whereas  in  the  case 
of  an  ordinary  debtor,  practice  recognized  —  at  least,  from  the 
thirteenth  century  —  the  preference  of  the  first  one  to  distrain,  a 
preference  which  is  to  be  accounted  for  by  the  fact  of  the  creditor 
physically  seizing  the  object  which  was  distrained  and  the  old 
system  of  the  possession  of  movables.^    The  other  preferences 

1  Other  incidents:  1st.  Demand  for  a  Separation  by  third  parties  who  say 
they  are  oxvTiers,  —  at  least  in  a  case  where  the  reclaiming  of  the  movables  was 
possible:  Beaumanoir,  54,  3;  "Fors  de  Beam,"  134;  "Orleans,"  456;  "Bour- 
bon," 128;  "Bretagne,"  233;  Pothier,  no.  473.  —  2d.  Opposition  on  behalf  of 
other  creditors  and  subrogation  in  the  prosecution.  Once  the  distraint  had 
taken  place,  the  creditors  of  the  person  against  whom  it  had  operated  could 
not  carry  it  out  a  second  time  upon  the  same  object;  originally  it  was  handed 
over  to  the  person  making  the  distraint,  which  prevented  another  distraint 
from  being  made,  and  afterwards  the  rule  was  kept  up  with  the  object  of 
preventing  useless  expense.  Distraint  upon  distraint  is  invalid.  But  the 
creditors  had  a  right  to  offer  opposition,  that  is  to  say,  to  have  themselves 
joined  with  the  person  making  the  distraint,  and  to  ask  to  be  paid  with  him; 
by  this  means  they  could  be  brought  in  to  the  sale;  the  person  making  the  dis- 
traint could  not  withdraw  it  to  their  detriment;  were  he  negligent,  the  others 
had  themselves  subrogated  to  him  by  means  of  a  judgment  (to-day,  subroga- 
tion of  absolute  right  following  a  summons  which  has  not  been  answered, 
which  is  more  simple).  The  "  Ord."  of  1667  prescribed  that  the  sale  should  be 
postponed  until  a  final  settlement  of  the  rights  of  those  persons  offering  oppo- 
sition should  have  been  made,  —  a  thing  which  meant  delays,  increased  ex- 
penses of  the  custodianship,  and  diminished  the  value  of  the  pledge:  Tambour, 
II,  243. 

2  Fleury,  "Inst.,"  II,  189.  — On  the  abandoned  system  of  the  acquiring  of 
the  pledge  by  the  creditor,  cf.  still  in  the  sixteenth  century  Labourt,  14,  1,  2, 
6;  previous  to  that  "Aries,"  1162-1202;  "Provence"  1366;  "Falaise,"  20, 
etc.  Conferring  of  the  pledge  upon  the  creditor  based  upon  the  appraisement 
of  worthy  people.    Post,  "Distraint  upon  Immovables";  Pothier,  "Nant.,"  19. 

^  Beaumanoir,  30,  51:  40  days  (nobles);  7  days  (commoners).  Immediate 
sale  in  some  places,  excepting  that  delivery  was  delayed:  "Ord."  of  1411; 
"T.  A.  C,  Bret.,"  322. 

*  Beaumanoir,  30,  53  (sale  by  the  creditor  after  having  summoned  the 
debtor);  "ChS-tillon,"  71,  etc.;  Declaration  of  Jan.  14,  1689  (silver  vessels). 
—  Auctioneers:  Law  of  27  Vent.,  year  XI,  l;Law  of  July  21,  1790,  6;  Sept. 
17,  1793. 

«  Beaumanoir,  34,  51;  54,  6;  "Gr.  Cout.,"  p.  233;  Boutaric,  I,  46;  Tambour, 
II,  154,  248. 

6  Beaumanoir,  34,  52;  "Gr.  Cout.,"  2, 17; '  'Paris,  N.  C,"  178;  Guy  Coquille, 

593 


§  422]  OBLIGATIONS  [Chap.  Ill 

connected  with  movables,  which  were  made  use  of  in  cases  of 
insolvency  as  well  as  in  the  case  of  an  ordinary  action,  arose, 
as  they  do  to-day:  1st,  from  the  idea  of  an  expressed  or  im- 
plied pledge  of  record;  2d,  or  else  from  special  reasons  rank- 
ing certain  claims  before  others,  but  never  causing  them  to  be 
preferred  to  the  lien  of  a  record-mortgage  (costs  at  law,  funeral 
expenses,  salaries,  the  treasurer).^ 

§  423.  Execution  upon  Immovables.-  Origin  of  Distraint 
upon  Immovables.^  —  Distraint  of  immovables  was  unknown  in 
the  old  law.^  It  was  introduced  into  legislation  in  two  ways: 
1st.  The  harshness  of  execution  carried  out  upon  the  person  was 
such  that  the  debtor  did  not  hesitate  at  any  means  of  escaping  it; 
he  was  seen  to  set  aside  for  his  creditors  the  enjoyment  of  his  land, 
and  even  its  ownership.^  What  he  did  by  means  of  a  private 
agreement  and  voluntarily  could  not  fail  to  be  imposed  upon  him 
by  law.  2d.  Procedure  upon  a  default  under  the  Carolingians 
had  as  its  consequence  the  "missio  in  bannum,"  or  confiscation  of 
the  possessions  of  the  debtor;  ^  some  outward  sjTnbol,  such  as  a 
little  straw  or  a  glove,  served  to  make  the  matter  public;  ^  the 
debtor  had  a  year  and  a  day  in  which  to  obtain  its  removal  upon 
condition  of  appearing  in  court;  when  the  year  and  a  day  had 
elapsed  the  confiscation  became  absolute,  the  possessions  became 

"Inst.,"  444.  —  In  case  of  insolvency  all  the  creditors  were  paid  at  so  much 
in  the  pound:  "Cout.  Not.,"  76,  153;  "Gr.  Gout.,"  2,  27;  Loysel,  185,  687; 
Garraud,  "Deconfiture,"  187. 

1  Loysel,  363,  683,  688,  897;  Pothier,  "Proced.,"  481;  Glasson,  VI,  606;  VII, 
673;  Dareste,  "Etudes,"  p.  90  (privileges). —  C/.  Planiol,  "Dr.  Givil.,"  II, 
754,  774. 

2  Esmein,  p.  156;  Brunner,  §  112  et  seq.;  Glasson,  III,  390;  Amira,  "Voll- 
streckungsverf.";  "O.  R.,"  I,  65;  II,  89;  Schroeder,  287,  396  (bibl.);  Fertile, 
§  242. 

^  At  Rome  the  same  means  of  execution  with  regard  to  all  possessions. 

*  "Sal.,"  50,  58;  "Edict  of  Ghilperic,"  7;  Marculfe,  "App.,"  51;  "Bai.,"  2, 
1;  7,  4.  —  Contra:  Thonissen,  "Org.  Jud.  de  la  L.  Sal.,"  3,2,  4  (the  Sahc  Law 
represses  attacks  on  the  ownership  of  land  and  admits  of  their  confiscation) ; 
Nani,  "Stud.,"  II,  112  (extrajudicial  distraint  of  immovables  among  the 
Lombards). 

6  Roziere.  "Form.," 277,374;  Murafori," Ant.it.,"  11,237;  "Ord." of  1234,2'. 

'  As  to  the  placing  outside  of  the  law,  from  whence  is  derived  the  "missio 
in  bannum,"  cf.  §  360,  supra.  The  word  banishment  ("banniment")  still  sig- 
nified distraint  in  Languedoc  in  the  eighteenth  century:  "Max.  du  Dr.  Fr.," 
1749,  72. 

'  Gntnm,  "R.  A.,"  195,  941:  "Wifa";  Lattes,  "Parole  e  SimboH"  ("  wifa," 
standing  crops);  "Rendic.  Inst.  Lomb.,"  1900.  Distraint  upon  standing  crops 
is  a  reproduction  of  the  old  custom.  "Wifatio"  practised  by  the  owner  to 
forbid  third  parties  from  going  upon  his  land  (for  example,  even  today  one 
puts  a  little  straw  at  the  end  of  a  stick  stuck  into  the  ground  in  order  to 
notify  the  shepherds  that  they  must  not  bring  their  flocks  to  pasture  in  a  cer- 
tain field)  Fertile,  loc.  cit.:  cross;  Brunner,  II,  459. 

594 


Topic  S]    EXECUTION  UPON   POSSESSIONS,  REAL   SECURITIES    [§  423 

the  property  of  the  king;  but  the  treasurer  could  not  keep  them 
without  doing  an  injustice  to  the  creditors  who  had  been  de- 
prived of  them;  ordinarily,  as  a  special  favor,  he  gave  up  to  them 
a  portion  of  these  possessions.^  At  the  end  of  the  Prankish  period 
if  the  distraint  upon  immovables  did  not,  properly  speaking,  exist, 
at  the  same  time  they  had  an  indirect  proceeding  which  had  simi- 
lar results:  ^  restricted  at  first  to  cases  of  default,  in  the  end  it  was 
applied  in  more  and  more  numerous  cases,  and  feudal  practice 
made  it  general;  confiscation,  after  having  been  an  essential  part, 
disappeared  and  left  in  its  place  only  the  distraint  for  the  benefit 
of  creditors  alone.  In  spite  of  these  modifications,  the  very  old 
Customary  law  still  sprang  from  the  principle  that  immovables 
could  not  be  distrained;  ^  and  for  a  long  time  recourse  was  had  to 

^  Capitulary  of  782,  27  (I,  70):  a  debtor  cannot  furnish  any  surety;  his 
possessions  will  be  placed  "in  bannum"  until  he  can  find  a  "fidejussor." 
"Cap.  miss.,"  802  (I,  97),  32,  36  et  seq.:  "missio  in  bannum"  of  those  who  owe 
certain  compositions;  Capitulary  of  803,  6  (I,  118).  Regulation  by  Louis  the 
Debonair.  Capitulary  of  816,  5;  818-19,  11  (I,  268,  283).  Cf.  "Cap.,"  II, 
75,  c.  3;  273,  7;  307,  3;  "Ed.  Pist.,"  864,  c.  6  ("missio  in  bannum  judicio 
scabinorum"),  etc.  Table,  see  "Bannus."  —  In  803  the  king  is  consulted  as 
to  what  shall  be  done  with  the  goods  which  had  been  seized;  later  on,  under 
Louis  the  Debonair  he  no  longer  proceeds  to  make  a  special  decision  in  each 
case,  but  it  becomes  the  rule  that  creditors  shall  be  paid  first  of  all,  and  after 
them  the  treasurer.  Moreover,  the  property  acquired  by  the  treasurer  only 
goes  to  the  creditors  by  virtue  of  a  "prseceptum"  of  the  king:  Brunner,  II,  74, 
460. 

^  For  cases  where  the  "missio  in  bannum"  applies,  cf.  Brunner,  §  112. 
The  provisions  of  the  Capitularies  are  not  general,  and  it  is  not  possible  to  say, 
if  one  adheres  to  their  texts,  that  the  proceeding  is  a  regular  means  of  execu- 
tion which  can  be  made  use  of  by  every  creditor.  But  the  tendency  to  develop 
its  application  is  manifest;  practice  had  to  round  out  legislation  upon  this 
point,  —  a  thing  which  was  all  the  more  easy  because  the  "missio  in  bannum" 
was  pronounced  by  the  count,  whereas  the  placing  outside  of  the  law  of  which 
it  is  a  modified  form  emanated  from  the  king.  Cf.  Esmein,  p.  157.  In  a  pro- 
cedure based  upon  a  hearing  of  both  parties  the  carrying  out  of  the  judgment 
was  insured  by  sureties  which  the  debtor  had  to  provide;  thus  for  a  long  time 
there  was  no  need  to  be  concerned  with  these  cases. 

'  Proofs.  —  1st.  Distraint  upon  immovables  does  not  appear  in  certain 
texts  of  the  feudal  period,  any  more  than  it  did  in  the  barbarian  laws.  Thus 
at  Metz  until  the  middle  of  the  fourteenth  century  "estault,"  which  is  the  only 
procedure  of  execution  recognized  by  the  "Ord.  des  Maiours,"  only  affects 
movables:  "N.R.H.,"  11,313;  "F.  de  B(^arn,"p.225.  — 2d.  Pledging  of  the  im- 
movables and  distraint  upon  the  income,  especially  in  the  case  of  fiefs:  Beau- 
manoir,  17,  7;  35,  2;  ".Jostioe,"  12,  6,  38;  "Ord."  of  1218,  1234,  1314.  "La 
Salle  de  Lille":  sale  of  the  right  of  user  for  a  hundred  years:  Boutaric,  I,  25.  — 
3d.  Sometimes  the  consent  of  the  debtor  is  still  required  for  the  sale  of  immov- 
ables. Privilege  of  the  Duke  of  Burgundv  at  Rouvre  in  1259  ("Ord.,"  IV, 
389);  "Hainaut,"  74;  "T.  A.  C,  Bret.,"  301;  "Toulouse,"  77;  Boutaric,  I,  69; 
J.  d'Ibelin,  185  et  seq.;  Beaumanoir,  35,  2:  the  sovereign  orders  the  debtor  to 
sell  his  immovables  within  forty  days,  and  it  is  only  if  he  refuses  to  do  so  that 
the  sovereign  must  proceerl  with  the  sale  or  leases  the  property  to  the  creditor, 
having  had  it  appraised  by  worthy  people:  P.  de  Fontaines,  21,  9;  "Jostice, 
3,  6,  2;  Boutaric,  I,  25. — 4th.  Subsidiary  character  of  distraint  upon  immova- 
bles; until  the  Edict  of  1539,  74,  preliminary  seizure  and  sale  of  movables  was 

595 


§  423]  OBLIGATIONS  [Chap.  Ill 

means  which  assumed  this  principle  as  being  in  force,  —  appro- 
priation of  revenues,  binding  immovables  by  an  agreement,  — 
which  were  indirect  means  of  compulsion.  Thus  the  "Etablisse- 
ments  de  Saint  Louis"  lay  it  down  that  the  debtor  of  the  king 
shall  not  be  imprisoned  if  he  swears  that  he  has  no  movables 
with  which  to  pay,  and  if  he  sells  his  immovables  within  forty 
days.^  There  was  another  resource  which  was  almost  as  forcible 
as  physical  compulsion:  the  law  appointed  bailiff's  men  ("come- 
stores,"  devourers)  over  the  goods  of  the  debtor,  who  lived  at  his 
expense.^  These  troublesome  guests  ruined  the  debtor  without 
any  advantage  for  the  creditor.  Often,  even,  the  debtor  had  an 
understanding  with  the  sergeant  so  that  the  occupation  by  the 
bailiff's  men  was  fictitious.  By  the  thirteenth  century  Beau- 
manoir  attacks  this  abuse,^  and  in  the  fifteenth  century  the 
bailiff's  men  have  become  the  commissioners  of  land-distraint.'* 

§  424.  Land  Distraint  and  its  Procedure.  —  Distraint  upon 
immovables  having  once  been  allowed,  for  the  various  local 
Customs  ^  there  was  substituted  a  regulation  which  was  almost 

absolutely  necessary:  Beaumanoir,  35,  2;  43,  18;  51,  9;  "Gr.  Cout.,"  2,  17,  etc.; 
"Ord.,"  I,  698;  IX,  453,  etc.;  "Jostice,"  3,  6,  2;  Boutaric,  I,  5;  II,  13;  "A.  C, 
Picardie"  (Marnier),  p.  90  etseq.;  "SummaNorm.,"  6.  —  5th.  Formalities:  for 
example,  summons  to  the  debtor  to  sell  his  immovables:  "Chatillon,"  72,  etc.; 
Loyseau,  "Deguerp.,"  3,  7,  16.  The  debtor  was  entitled  to  take  back  his  im- 
movables within  a  certain  time:  Boutaric,  I,  69.  —  Furthermore,  several  of  these 
peculiarities  are  also  to  be  accounted  for  because  of  the  relative  value  of  im- 
movables (for  example,  the  subsidiary  character  of  real  distraint):  Dig.,  42,  1, 
15,  2;  Dig.  X,  6,  5,  5,  8.  —  The  evolution  is  perhaps  still  more  striking  in  the 
English  law.  Although  the  quality  of  not  being  distrainable  is  a  consequence 
of  the  quality  of  being  inalienable,  immovables  became  alienable  in  England 
long  before  they  could  be  distrained  upon,  —  a  thing  which  gave  rise  to  frauds; 
in  fact,  according  to  the  common  law,  the  creditor  had  a  right  to  distrain  upon 
the  body  of  the  debtor,  upon  his  movables,  and  upon  the  income  of  his  immova- 
bles; if  the  latter  were  distrained  upon,  the  debtor  had  a  very  simple  means  of 
taking  away  the  benefit  of  them  from  the  creditor;  it  was  sufficient  if  he  sold  the 
land;  the  Statute  of  Westminster  II,  under  Edward  I,  allowed  not  only  the 
distraint  of  the  income,  but  the  land  itself,  up  to  the  amount  of  half  of  the  im- 
movables of  the  debtor;  the  creditor  held  them  until  he  was  entirely  paid 
(tenant  by  elegit):  Glasson,  "Inst.  Anglet.,"  Ill,  238. 

1  II,  22. 

2  See  Du  Cange,  Ragueau;  Beaumanoir,  53;  54,  9;  51,  5;  Glasson,  VI,  615. 

'  Op.  cit';  "Olim,"  II,  241;  Tambour,  II,  148  (local  privileges).  Privileges 
granted  by  the  kings  in  Languedoc;  in  P^rigord:  "quod  non  ponantur  come- 
stores":  "Ord.,"  I,  399,  694,  etc.  — C/.  "Dragonnades"  (prosecution  of  Protes- 
tants in  France). 

*  See  Ferribre,  Masuer,  loc.  cit. 

»  Analysis  in  Tambour,  II,  131,  253;  "Ass.  de  J^r.,"  "C.  des  Bourg.,"  26, 
27;  "Chatillon,"  72  (in  1371);  Beaumanoir,  34,  51;  35,  6,  etc.;  "Gr.  Cout.,"  2, 
17,24,33;  3,25;  Boutaric,  1, 16,69;  "Ord."  of  1411;  1424;  Maswer,  30.  Customs 
according  to  which  the  immovable  of  the  debtor  is  given  to  the  creditor: 
Tambour,  II,  143.  —  Fiefs  (if  there  are  no  other  possessions):  J.  d'Ibelin,  185 
et  seq.;  Ph.  de  Navarre,  27;  "T.  A.  C,  Bret.,"  295  et  seq. 

596 


Topic  8]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES    [§  425 

uniform  by  virtue  of  the  Ordinance  of  1551,  better  known 
under  the  name  of  the  "Edict  of  PubHc  Announcements."  ^  We 
may  say  that  in  a  general  way  the  carrying  out  of  execution  upon 
immovables  was  loaded  down  with  formahties;  "We  have,"  said 
Loysel,  "a  great  deal  more  affectation  and  ceremony  than  there 
was  in  the  Roman  law."  This  refers  to  the  importance  which  hold- 
ings in  immovables  had  assumed ;  but  the  expenses  of  dispossessing 
diminished  the  creditor's  security,  and  its  long  delays  discouraged 
him;  through  a  wish  to  protect  the  debtor,  his  credit  was  entirely 
removed. 

§  425.  The  Same.  —  (A)  Documentary  Right.  One  cannot  pro- 
ceed with  the  distraint  ^  excepting  by  virtue  of  some  documentary 
right,  that  is  to  say,  a  judgment  or  a  notarial  deed.^  An  executory 
force  is  naturally  attached  to  judgments.  As  to  the  notarial  deeds, 
it  is  said  that  they  signify  a  confession  of  judgment  ("paratam 
executionem"),^   thus  differing  from    deeds    under  private  seal; 

1  Isambert,  Table,  see  "Saisie  r^elle"  ("Ord."  of  1539,  etc.).  The  uniform- 
ity was  entirely  relative,  because  the  Edict  was  not  applied  in  many  provinces 
(Flanders,  Artois,  Normandy,  Lorraine,  Bresse,  Bugey,  Franche-Comt4, 
Dauphine,  Provence,  Languedoc,  Guyenne,  Beam  and  Navarre):  Tambour, 
II,  281;  Glasson,  "Proced.,"  II,  248.  —  Distraint  upon  rents  and  upon  offices, 
Edicts  of  1583,  1669,  1683;  Tambour,  II,  171,  318.  Cf.  Basnage,  "Hypoth.," 
p.  87. 

2  Obviously,  the  right  must  be  one  which  has  matured.  Delay  of  four 
months  in  the  Roman  law  and  in  the  canon  law:  Dig.  X,  1,  29,  26;  2,  26, 
15.    Texts  dealing  with  the  Customs:  Tambour,  II,  113. 

'  Loysel,  890:  "One  never  gives  up  execution  or  distraint  unless  it  is  by 
virtue  of  a  contract  protected  by  warranty,  a  judgment,  or  a  privileged  cause 
of  action  (for  example,  a  debt  due  the  king),  for  acts  of  violence  are  prohibited." 
Cf.  exceptional  cases  under  the  heads,  distraint-writ,  seizure,  alien  distraint, 
etc.  Beaumanoir,  24,  13;  "Const.  Chat.,"  8.  —  For  quite  a  long  time  even  the 
executory  right  is  not  sufficient,  and  the  creditor  has  still  to  provide  himself 
with  letters  of  claim,  the  use  of  which  is  very  limited  during  the  monarchic 
period;  these  letters  consisted  of  an  order  to  the  sergeant  to  enforce  the  rights 
of  the  creditor:  Tambour,  II,  95,  184;  "Ord."  of  1667,  27,  6.  —  Various  judg- 
ments, cf.  Tambour,  II,  72,  172.  —  No  defense  is  possible  against  this  executory 
right  unless  the  condition  of  "fining  the  hand  of  justice"  be  complied  with 
(pledges,  sureties):  see  Ragueau;  Loysel,  892.  —  Time:  Loysel,  894. 

*  "Paree,"  from  "parare"  (primitive  meaning).  One  must  take  care  not 
to  confuse  the  confession  of  judgment  with  the  clause  called  by  way  of  avoid- 
ance, by  means  of  which  the  debtor  authorizes  the  creditor  to  have  the 
immovables  that  are  the  pledge  for  his  debt  sold  at  public  auction  before  no- 
taries upon  default  of  payment  at  maturity.  By  this  means  the  creditor  may 
dispense  with  the  formalities  of  distraint  and  forced  dispossession,  which  is 
an  advantage  for  him,  because  he  thus  avoids  many  expenses  and  delays,  but 
which  can  be  very  prejudicial  to  the  debtor,  because  he  loses  valuable  guaran- 
ties (for  examjih;,  y)ubli(;ity)  of  such  a  nature  as  would  cause  his  projjcrty  to  be 
sold  at  a  higher  price.  The  Law  of  June  2,  1841,  prohibited  this  in  tlie  case  of 
immovables.  Our  old  law  allowed  a  friendly  sale  of  the  immovable  distrained 
upon  (see  Fcrricre).  A  debtor  could  also  ajjpoint  his  creditor  " i)rocurator  in 
rem  suam"  with  power  to  sell  his  projjcrty  (Dareste,  p.  456).  Although  the 
forfeiture  clause  was  proliibited,  contrary  to  the  spirit  of  our  old  legal  ideas  and 

597 


§  425]  OBLIGATIONS  [Chap.  Ill 

whereas  the  creditor  with  a  deed  under  private  seal  can  only 
obtain  execution  after  having  obtained  a  judgment  of  conviction, 
the  creditor  under  a  notarial  deed  has  the  right  to  act  directly 
against  the  debtor  through  a  distraint.  This  likening  of  the 
notarial  deed  to  the  judgment  was  devised  by  the  practitioners; 
resorting  to  the  Roman  rule  "  confessus  in  jure  pro  judicato  habe- 
tur,"  their  method  was  to  compel  the  parties  to  appear  before  the 
judge  at  the  time  when  the  debt  was  contracted;  the  debtor  ac- 
knowdedged  his  debt,  and  this  admission  made  in  the  presence  of 
the  judge  and  established  in  writing  had  the  same  force  as  a 
judgment;  in  this  way  the  creditor  found  that  he  could  avoid 
incurring  the  risk  of  an  action  and  did  not  have  to  fear  the 
chicanery  and  bad  faith  of  the  debtor.  This  custom  appears  first 
in  the  writings  of  the  Glossators  and  in  the  Italian  practice 
("  instrumenta  guarentigiata");  ^  after  this  it  spread  throughout 
Western  Europe.  In  France  the  acknowledgment  was  made  be- 
fore the  judge,  who  delivered  a  sealed  charter  setting  forth  the 
debt  and  the  acknowledgment;  the  affixing  of  the  seal,  which 
was  a  mark  of  public  authority,  made  the  deed  authentic  and 
carried  with  it  the  obligation  to  perform  in  the  name  of  the 
State.  The  notaries  who  were  charged  with  drawing  up  in  writ- 
ing the  acknowledgment  made  to  the  magistrates  soon  took  this 
acknowledgment  themselves,  at  first  in  the  name  of  the  magis- 
trates and  then  in  their  own  name,  because  of  an  expressed  or 
understood  delegation  of  authority.^  During  the  feudal  period 
the  principle  of  seigniorial  independence  had  the  effect  of  limit- 
ing the  executory  force  of  a  judgment  to  the  jurisdiction  of 
the  judge  who  had  pronounced  it.  In  order  to  have  it  carried 
out  elsewhere  it  was  necessary  to  obtain  an  order  from  the 
local  judge,  —  an  order  which  was  scarcely  ever  made  without  a 

the  texts  of  the  thirteenth  century  ("Ord.,"  I,  506,  n.  b.;  Giraud,  "Essai," 
II,  188,  212;  "T.  A.  C,  Bret.,"  296  et  seq.),  yet  a  clause  was  authorized  by  vir- 
tue of  which,  if  the  debtor  did  not  pay  at  maturity,  the  object  given  as  a  pledge 
was  acquired  by  the  creditor,  after  an  appraisal  by  persons  agreed  upon  by 
the  parties:  Beaumanoir,  43,  3;  Pothicr,  "Nant.,"  no.  19.  Now,  the  clause 
by  way  of  avoidance  did  not  offer  any  greater  dangers  than  this  clause:  Ser- 
rigny,  "R.  etr.  et  Fr.  de  leg.,"  1850,  257;  Garsonnet,  "Procedure,"  III,  467; 
Briegleb,  "Gcsch.  d.  Executivprocess,"  1845;  Fertile,  VI,  349. 

1  Viollet,  loc.  cit.,  seems  to  think  that  this  practice  is  derived  from  the  eccle- 
siastical courts. 

^  Loysel,  890;  Du  Cange,  see  "  Garentigia " ;  Ragueau,  see  "Garantie"; 
Loyseau,  "Garantie  des  Rentes,"  12;  Pothier,  "Proccd.,"  no.  438.  —  Customs 
of  the  South,  for  example  "  Ord.,"  3,  205;  4,  8,  etc.  —  Beaumanoir,  35,  6;  "  Gr. 
Gout.,"  2,  17;  Bmitaric,  II,  13,  etc.;  Tambour,  II,  82,  171,  181  (obligations 
passed  at  law). 

598 


Topic  8]    EXECUTION   UPON  POSSESSIONS,  RE.U,   SECURITIES    [§  425 

new  examination  of  the  entire  matter,  so  that  the  whole  ques- 
tion was  again  opened.^  The  monarchic  law  did  not  break 
entirely  with  this  traditional  rule,  as  logic  and  the  good  adminis- 
tration of  justice  would  have  required.  But  by  a  rather  singular 
inconsistency,  notarial  deeds  had  executory  force  in  the  entire 
kingdom,  even  when  they  did  not  have  an  indorsement,  "placet" 
or  "pareatis"  ("Ord."  1539,  5,  65).^  It  was  otherwise  with  judg- 
ments (in  spite  of  the  "Ord."  of  1560,  46,  and  1579,  172);  the 
rivalry  between  the  judicial  bodies  was  strong  enough  to  uphold 
the  tradition,  and  their  judgments  could  not  be  executed  outside 
of  the  jurisdiction  of  the  judge  who  had  pronounced  them  without 
letters  of  "pareatis"^  delivered  by  the  Keeper  of  the  Great  Seal 
or  by  the  Chancellors  of  the  Parliaments,  nor  also  without  the 
permission  of  the  local  judge.  This  was  a  rather  idle  formality, 
because  these  letters  were  delivered  without  jurisdiction  being 
taken  of  the  matter  they  dealt  with  ("Ord."  1629,  119,  and  1667, 
27,  6).'*  "If  the  executory  force  of  judgments  was  thus  limited 
in  the  interior  of  the  kingdom,  all  the  more  should  this  force  be 
refused  to  judgments  which  were  rendered  abroad";  in  this  re- 
spect notarial  deeds  were  similar  to  judgments,  in  conformity 
with  the  oldest  practice.^ — Finally,  it  is  to  be  noticed  that  execu- 
tion was  especially  directed  against  the  person,  at  least  according 
to  the  traditional  notions;  the  executory  right  given  against  the 
debtor  remained  without  any  effect  as  against  his  heirs;  it  was 
necessary  to  obtain  a  new  one.  On  the  other  hand,  the  execu- 
tory right  which  was  obtained  by  the  creditor  could  be  made 

1  "Gr.  Gout.,"  p.  214. 

^  C/.,  however,  "Paris,"  164,  1Q5;  Pothier,  no.  442  (it  is  no  longer  cus- 
tomary to  place  a  seal  upon  notarial  deeds,  although  one  still  pays  the 
fee  for  the  seal);  id.,  no.  439;  Givil  Gode,  547;  Law  of  25  Vent.,  year  XI, 
Art.  28  (authentication,  which  is  not  required  for  the  signature  of  the 
clerk  of  the  court). 

'  Tambour,  II,  197.  "Pareatis"  (obey)  is  a  word  derived  from  the  context 
of  the  hitters.  Sentences  of  the  ecclesiastical  judges  and  arbitrators,  etc. 
Cf.  Tambour,  II,  172  et  seq. 

*  The  Revolution  gave  deeds  and  judgments  executory  force  throughout 
the  whole  of  France;  Gonstitution  of  1791,  3,  5,  24  (uniform  executory  for- 
mula); Law  of  Sept.  29,  1791  (engrossed  copies  of  deeds  entitled  in  the  name  of 
the  king  and  not  in  the  name  of  the  judge,  and  ending  with  a  command 
as  to  who  should  have  them  carried  out);  Law  of  Sept.  6,  11,  1790,  20, 
21. 

»  Cf.  Civil  Code,  2123,  2128:  Brodeau,  on  "Paris,"  165  (II,  390):  one  must 
petition  by  means  of  a  new  action  before  the  local  judge.  Art.  121  of  the 
"Ord."  of  1G29  merely  sanctioned  rules  which  had  been  admitted  in  practice 
without  difficulty:  Edict  of  1778,  2;  Boullcnois,  "Por-sonn.  et  K6alit6  des 
Lois,"  p.  646;  Julien,  "Statuts  de  Prov.,"  11,442;  Pothier,  no.  441;  Glasson, 
"Proc6d.,"  II,  142. 

599 


§  425]  OBLIGATIONS  [Chap.  Ill 

use  of  by  his  heirs:   "the  dead  carried  out  execution  upon  the 
living,  and  not  the  living  upon  the  dead."  ^ 

§  426.  The  Same.  —  (B)  The  Distraint  Proper."^  The  creditor 
who  possesses  an  executory  instrument  sends  by  the  baihff  to 
the  debtor  a  summons  to  pay  the  sum  due.^  If  this  cannot  be 
done,  the  baihff  goes  upon  the  land  with  two  witnesses,^  puts  the 
land  under  the  hand  of  the  king  by  placing  upon  it  a  wisp  of 
straw  or  an  escutcheon  bearing  the  arms  of  the  king,^  places 
commissioners  there,  publishes  the  distraint  by  means  of  posting 
up  notices  before  the  main  gate  in  the  parish  where  the  land 
is  situated,  and  then  draws  up  a  report  of  the  whole  ("  return  of 
land  distraint").^  The  commissioners  left  in  possession  by  the 
bailiffs  were  originally  poor  people,  whose  responsibility  was  im- 
aginary; afterwards  they  were  officers  who  had  given  surety;  ^ 
it  was  their  duty  to  have  the  distraint  registered  and  to  proceed 
wdth  the  judicial  lease  of  the  possessions  distrained  upon,  —  a 
lease  which  has  been  done  away  with  in  our  law  because  of  the  ex- 
pense and  the  delays  which  it  gave  rise  to.^  In  this  way  the  debtor 
found  himself  dispossessed  of  his  property;  any  act  of  disposal 
over  the  land  or  the  income  was  forbidden  him.^    Thus  it  was  use- 

1  Loysel,  891  (c/.  864).  Other  motives:  to  notify  the  heirs;  debts  are  not 
incumbent  upon  all  without  any  distinction:  Tambour,  II,  106,  197  (details). 
C'/.,  assignment  of  claims,  ibid. 

^  Cf.  feudal  distraint,  which  was  originally  rather  a  restoration  of  the  fief 
to  the  lord's  list  because  of  his  lord's  right  of  ownership;  the  lord  takes  back 
his  property,  but  there  is  a  tendency  to  confuse  this  right  of  reversion  with 
the  real  distraint  carried  out  by  the  creditor  upon  the  land  of  his  debtor,  in 
proportion  as  the  right  of  the  vassal  over  the  fief  increases.  However,  a  few 
peculiarities  still  existed  even  after  the  old  law  had  died  out,  whereas  copyhold 
distraint  became  an  ordinary  distraint:  Tambour,  II,  340,  349.  —  As  to  the 
confiscation  of  the  property  which  the  vassal  holds  from  his  sovereign,  cf. 
"Ass.  de  Jerus.,"  I,  304;  trial  of  John  Lackland ;  and  the  recent  works  of  £emo«i, 
Luchaire,  Guilhiermoz. 

3  Boutaric,  II,  36;  "Ord."  of  1539,  74;  "Ord."  of  Blois,  175. 

*  As  to  possessions  which  carmot  be  distrained  upon,  cf.  Glasson,  "Proced.," 
II,  153;  Fertile,  VI,  348. —As  to  distraint  upon  fiefs,  cf.  Fertile,  VI,  346; 
Guyot,  he.  cit. 

*  "Cout.  Not.,"  118.  Escutcheon,  a  little  banner  of  cloth  or  linen  bearing 
the  arms  of  the  king:  Fothier,  no.  544  (not  in  use);  Fertile,  I,  339. 

^  Registration  in  the  office  of  the  commissioner  of  land  distraint.  Cf.  the 
existing  form  of  publication  by  means  of  the  transcription  of  the  minutes  of 
the  proceeding  of  distraint. 

'  Edict  of  February,  1626. 

*  This  lease,  which  was  practiced  under  some  of  the  Customs,  was  given  a 
general  effect  by  the  "Ord."  of  1539,  82,  and  the  Edict  of  1551,  41,  with  the 
object  of  preventing  the  commissioners  who  formerly  administered  property 
that  had  been  distrained  upon,  from  appropriating  the  issues  for  themselves 
under  pretext  that  they  were  for  disbursements  and  the  expenses  of  adminis- 
tration.   As  to  these  disadvantages,  cf.  Glasson,  II,  242. 

'  Encumbrances  of  the  issues  also. 

600 


Topic  8]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES    [§  427 

less,  and  even  impossible,  for  other  creditors  to  distrain  upon  the 
property,  which  had  already  been  placed  under  the  hand  of  the 
law;  all  they  could  do  was  to  offer  objection  in  a  petition;  "dis- 
traint upon  distraint  is  invalid."  ^ 

§427.  The  Same.  —  (C)  Public  Announcements  and  Award. 
Public  announcements  or  proclamations  were  made  after  the 
parochial  mass,  in  order  to  announce  to  the  public  that  the  in- 
heritance which  had  been  distrained  upon  was  to  be  sold  and 
awarded  by  decree,  and  to  allow  opposition  to  be  offered  by  any 
parties  w^ho  were  interested  (creditors,  mortgagees,  etc.).  Follow- 
ing this,  notices  were  posted  and  a  judgment  certifying  to  the 
public  announcement  established  the  carrying  out  of  these  for- 
malities.^ It  was  the  duty  of  the  court  to  pronounce  upon  the 
various  objections  offered,  e.g.,  petitions  to  annul  the  distraint 
of  the  land  belonging  to  some  one  else,  to  exclude  certain  prop- 
erty, to  make  an  award  only  under  the  charge  of  a  quit-rent,  or 
to  include  some  one  else  among  the  creditors.  After  having  ad- 
justed these  details,  it  enters  an  order  of  judgment.^  ]VIore 
notices  are  posted  up,  and  forty  days  after  this  order  has  been 
made  the  man  who  has  distrained  places  a  bid  in  the  clerk's 
office;  this  corresponds  to  fixing  a  price.  Within  the  forty  days 
anyone  can  make  other  bids;  they  are  read  in  court,  and  there  is  a 
provisional  award  to  the  highest  bidder;  but  it  is  only  after  it  has 
been  put  off  for  a  fortnight  three  times  that  the  final  judgment 
takes  place.^  The  judgment  vendee  must  pay  the  price  of  the 
sale  within  a  week,  and  if  he  does  not  do  this  the  land  can 
again  be  subjected  to  the  public  announcement  and  sold  at  his 
expense  as  having  made  an  excessive  bid.^  The  final  order 
makes  the  judgment  vendee  the  owner  without  delivery;  ^  it  even 
extinguishes  interests  of  which  notice  was  not  filed;  so  that  the 
judgment  vendee  can  acquire  more   rights   than   the  judgment 

1  Loysel,  899,  758. 

2  Edict  of  1582.    Control  of  distraint,  Edicts  of  1639,  1693,  1775. 

'  Opposition  could  no  longer  be  received  after  the  adjudication:  Desmares, 
272,  .54,  188;  "Cout.  Not.,"  121;  "Gr.  Cout.,"  p.  263;  Loijsel,  906;  "Paris," 
354-359  (after  a  copy  of  the  decree  had  been  made  and  sealed).  "Ord."  of 
1629,  161:  registration  of  objections;  Tambour,  II,  295. 

■•  "Tiercement"  at  "Orl6ans,"  476  (outbidding  of  the  third  party  within  a 
week).  Code  of  Civil  Procedure,  708  et  seq.  Elsewhere  the  debtor  himself 
can  take  back  his  property  within  a  year  and  a  day  ("suppression  of  decree" 
in  Languedoc,  etc.).  Cf.  "Fragm.  d'une  R6pert.  de  Jurispr.  Paris,  au  XV®  s.," 
pp.  2.5,  90;  Fertile,  VI,  343;  Peliet,  "Thdse,"  1884. 

*  See  Denisart. 

'  This  was  a  judgment.  As  to  the  voluntary  decree,  post,  "Clearing  Off." 
In  Ilainaut  seisin  must  be  taken  by  the  purchaser.    Cf.  Loysel,  203. 

GOl 


§  427]  OBLIGATIONS  [Chap.  Ill 

debtor  had.  There  is  an  exception  only  in  the  case  of  the 
lord's  feudal  right  and  the  lord's  copyhold  right,  real  servitudes, 
the  dower  of  the  wife  of  the  judgment  debtor,  an  entail  not 
yet  matured,  and  life  rents.^  In  case  he  is  evicted,  the  judg- 
ment vendee  has  only  the  right  to  demand  the  restitution  of  the 
price.^ 

§  428.  The  Same.  —  (D)  Preferences?  The  price  of  the  sale 
was  not  ordinarily  distributed  by  way  of  equal  shares;  the  court 
must  first  settle  the  order  of  preference  as  between  the  privileged, 
mortgage,  or  simple  contract  creditors,^  which  prolongs  a  proce- 
dure already  very  lengthy  and  overburdened  with  incidents.^ 

§  429.  The  Same:  Later  Law.  —  The  law  of  the  9th  Messidor, 
year  III,  and  especially  a  law  of  the  11th  Brumaire,  year  VII  (not 
the  one  relating  to  the  system  of  mortgages),  simplified  the  pro- 
cedure w^hich  was  then  called  that  of  "forced  expropriation  ";  this 
last  law  did  away  with  the  rule  that  the  decree  clears  off  mort- 
gages; the  judgment  vendee  did  not  acquire  any  rights  other  than 
those  which  the  judgment  debtor  had.^ 

§  430.  Forms  of  Realty-Mortgage.  —  The  establishment  of  im- 
movable security  met  with  obstacles,  as  did  all  alienation,  in 
the  higher  law  of  the  family  and  in  that  of  the  lord.  By  the 
Frankish  period  lands  were,  however,  given  as  a  pledge  by  debtors 
to  their  creditors  to  answer  for  the  payment  of  their  debts,  some- 
times the  absolute  ownership  (pignorative  contract,  sale  with  re- 
demption) and  sometimes  only  the  enjoyment  (land-gage).  In 
both  cases  the  land  passed  into  the  hands  of  the  creditor.  Often, 
however,  the  possession  of  the  land  was  an  embarrassment  for 
him,  and  the  debtor  had  an  interest  in  not  giving  up  possession. 
In  various  ways  they  succeeded  in  reconciling  these  needs  with  the 
necessity  of  an  effective  security  for  the  creditor;  thus,  in  France, 

1  Desmares,  220,  390;  "Cout.  Not.,"  121,  127;  "Paris,"  354  et  seq.;  Loysel, 
904;  Glasson,  VI,  612;  Petiet,  "These,"  _1884._  Cf.  "Voluntary  Decree,"  post, 
"Clearing  Off."  This  consequence  had  its  origin  in  the  form  of  the  distraint: 
"Olim,"  III,  557;  "Jostice,"  16,  2,  1;  Desmares,  413;  Glasson,  "Proc,"  II, 
245  (numerous  local  peculiarities);  Petiet,  op.  cit.  Did  confiscation  clear  off 
the  rights  of  third  parties?    "Cout.  Not.,"  35;  Desmares,  174. 

2  Loysel,  905.    Cf.  Beaumanoir,  43,  3. 

3  Fleury,  "Inst.,"  II,  198.  —  Pos<,  "Sub-orders";  Tambour,  II,  155. 

*  The  privalege  of  the  first  one  to  distrain  is  absorbed  "by  the  legal  mortgage 
in  the  case  of  immovables:  Beaumanoir,  34,  52;  24,  2;  55,  1;  "A.  C.,  Picardie," 
cd.  Marnier,  p.  91;  Esmein,  p.  164;  Tambour,  II,  311. 

5  The  Law  of  the  11th  Brum.,  year  VII,  reduces  the  delays  to  50  days. 
Cf.  Glasson,  "Proc,"  II,  247  (simplification  under  the  old  system). 

«  Intermediate  law,  Tambour,  II,  433;  Civil  Code,  2204;  Code  of  Civil  Pro- 
cedure, 613,  749;  Law  of  June  2,  1841,  wliich  simplified  the  matter. 

602 


Topic  S]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES    [§  431 

during  the  feudal  period/  wlien  execution  upon  real  property 
came  into  common  usage,  there  was  developed  a  new  kind  of 
security,  giving  the  creditor  the  same  advantages  as  he  would  have 
had  by  land-gage,  but  without  the  debtor's  giving  up  possession. 
Known  first  under  the  name  of  the  bond,-  in  the  end  it  became 
confused  with  a  Roman  institution,  the  hypothec,  for  which  anal- 
ogous precedents  can  be  found,  such  as  fiduciary  alienation  and 
the  "pignus." 

§431.  Th3  Same:  (I)  Sale  with  Redemption.  —  In  the  old 
legislation  the  pledge  of  a  piece  of  land  is  often  met  with  under 
the  form  of  true  alienation:  the  creditor  receives  the  full  owner- 
ship of  a  piece  of  land,  just  as  he  is  given  a  movable  pledge;  he 
will  restore  it  if  the  debt  is  paid  when  due;  if  not,  he  shall  have 
the  absolute  ownership  of  it.'^  During  the  Frankish  period,'^  and 
even  sometimes  after  it,  this  transaction  was  frequently  met  with. 
The  ownership  of  the  land  was  conferred  upon  the  creditor  by 
means  of  a  conditional  investiture;  most  frequently  the  condition 
is  a  condition  subsequent,  that  is  to  say,  the  creditor  becomes  the 
owner  "hie  et  nunc,"  but  ceases  to  be  so  if  the  debt  is  paid.^    It 

1  As  to  the  order  in  which  these  various  assurances  made  their  appearance 
and  their  coexistence,  c/.  Heusler,  §  101. 

2  German  law:  the  "altere  Satzung"  corresponds  to  the  land-gage  of  the 
French  law;  the  later  or  "neue  Satzung"  (of  the  thirteenth  century),  to  the 
bond;  it  is  a  copy  of  the  procedure  of  execution  upon  immovables,  and,  con- 
sequently, is  derived  from  the  process  of  outlawry.  Actually,  "Satzung" 
means  statute,  regulation;  "versetzen"  means  to  put  in  pledge.  CJ.  post, 
"History  of  the  English  Mortgage." 

^  If  the  object  perishes  or  deteriorates  the  loss  falls  upon  the  creditor,  for 
if  it  no  longer  exists  or  loses  in  value  the  debtor  will  not  claim  its  restitution : 
"Soest,"  ia  1120;  "Sachsensp.,"  3,  5,  5.  It  is  for  this  reason  that  "Liut.," 
108,  allows  the  creditor  to  demand  the  payment  of  the  debt  although  he  may 
have  become  the  owner  of  the  pledge.  —  A  creditor  who  is  the  owner  of  the 
pledge  alienates  it  or  pledges  it,  which  may  make  its  recovery  difficult  for  the 
debtor;  the  alienation  subject  to  a  suspensive  condition  does  not  present  this 
difficulty. 

4  "Cart,  dc  Redon,"  nos.  34,  35,  133,  135,  200:  "de  Cluny,"  II,  21,  etc.; 
Thevenin,  no.  120;  lioziere,  "Form.,"  nos.  374  et  seq.;  texts  in  Heusler,  espe- 
cially Muratori,  "Ant.  Ital.,"  Ill,  116;  "Cod.  Cav.,"  I,  nos.  70,  73;  "Cart. 
Langob.,"  no.  9,  etc.  Persistence  of  the  pledge  with  ownership  in  English 
law  {Glanville,  X,  6;  post,  "Mortgage"),  in  German  law  {Meiboin,  273;  Fran- 
ken,  §  13).  ( f.  Boutaric,  I,  103,  3;  "Ass.  de  Jerus.,"  "C.  des  B.,"  32;  Franken, 
p.  148.  —  Cf.  theory  of  rents:  the  assignment  of  rents  meant  their  alienation. 
Britz^  p.  890:  confusion  of  pledging  of  immovables  ("engagtires")  with  sales 
with  the  power  of  buying  back,  which  are  made  use  of  in  case  of  a  borrowing 
upon  an  immovable  pleclge  (Luxembourg). 

^  A  new  transfer  of  the  ownershif)  was  absolutely  necessary;  it  is  hardly 
credible  that  the  ownership  return(>d  of  absolute  rigbt  to  the  debtor.  But  the 
texts  are  not  very  explicit :  Heusler,  §§  93,  102,  103  (11,  13S):  transfer  without 
"resignatio"  or  "Auflassung,"  in  such  a  way  as  to  leave  the  debtor  a  real 
right  over  the  land;  in  this  case  the  "resignatio"  ought  to  take  place  after 
the  transaction  is  completed  for  the  benefit  of  the  creditor  who  has  not  been 

603 


§  431]  OBLIGATIONS  [Chap.  Ill 

may  also  happen  that  the  condition  is  a  suspensory  one ;  ^  the 
creditor  only  becomes  proprietor  when  the  debt  is  due,  if  he  is 
not  paid.  But  in  either  case  he  possesses  the  land;  he  has  the 
enjoyment  of  it  without  deducting  from  the  debt  the  fruits  which 
he  takes  ;^  he  acquires  the  absolute  ownership  in  default  of  pay- 
ment (contrary  to  the  Roman  law,  which  forbids  the  "lex  com- 
missioria");^  and  he  would  not  have  the  right  to  sue  the  debtor 
by  at  the  same  time  offering  to  restore  the  pledge  to  him.  This 
transaction,  which  was  a  dangerous  one  for  the  debtor,  because 
the  creditor  never  failed  to  demand  a  pledge  which  was  of  greater 
value  than  the  amount  of  the  sum  due,  struck  at  the  rights  of 
the  family,  and  in  the  feudal  period  struck  at  those  of  the  lord;  ^ 
ordinarily  it  gave  way  to  the  land-gage.  However,  it  did  not  dis- 
appear entirely.  This  is  one  of  the  numerous  means  made  use  of 
to  avoid  the  prohibition  against  lending  at  interest;  the  casuists 
forbade  it  under  the  name  of  yignoratim  contract;  ^  it  is  to  be 
distinguished  from  sale  with  redemption,  which  is  lawful,  by  two 
characteristics,  —  the  low  price,  and  the  immediate  reletting  of 
the  land  to  the  seller.^ 

§  432.   The  Same:  (II)  Land-Gage.  —  To  evade  the  need  for  the 

paid.  This  ingenious  system  does  not  seem  to  us  to  have  a  sufficient  founda- 
tion in  the  texts. 

1  Roziere,  no.  377.  In  Lombard  law  the  debtor  carries  out  the  "traditio 
carta}"  with  the  creditor  and  the  latter  binds  himself  in  writing  to  restore  the 
"carta";  the  debtor  keeps  the  land. 

2  The  liquidation  of  the  debt  by  means  of  the  revenues  from  the  pledge 
was  opposed  to  the  spirit  of  the  old  law,  according  to  which  the  pledge  was 
the  provisional  property  of  the  creditor,  and  the  expenses  of  cultivating  it 
and  maintaining  it,  and  its  loss  even,  were  chargeable  to  liim. 

3  Penile,  IV,  541.  CJ.  "Liut.,"  147;  "Roth.,"  247;  Du  Cange,  see  "Trans- 
actum." 

^  Consent  of  the  heirs,  repurchase:  "L.  Feud.,"  2,  5.5;  "Schwabensp.,"  32, 
6;  72,  2.  Fief  given  by  way  of  pledge,  "Pfandlehn";  Homeyer,  "Sachsensp.," 
II,  345;  Kohler,  "Ffandr.  F.,"  291. 

^  Endemann,  loc.  cit.,  Neumann,  "Wucher,"  p.  197;  Lauriere,  "Ten.  de  5 
Ans.,"  c.  5,  6;  Franken,  pp.  155,  178,  183. 

*  A  borrows  100  from  B,  at  the  same  time  giving  him  the  piece  of  land  C 
as  a  pledge;  this  is  the  same  thing  as  though  he  sold  C  to  B  for  100  with  the 
power  of  getting  back  C  for  this  price;  for  in  both  cases  A  only  recovers  C  by 
paying  100  to  B.  From  the  economic  point  of  view  the  sale  with  redemption 
is  merged  with  borrowing  upon  a  pledge,  for  the  owner  who  sells  his  land 
and  keeps  the  power  of  buying  it  back  only  does  this  because  he  has  need  of 
money.  From  the  juridical  point  of  view  the  distinction  is  a  very  subtle  one. 
The  borrower  upon  a  pledge  can,  they  say,  be  compelled  to  pay  in  the  same 
way  as  any  debtor,  whereas  nothing  compels  the  vendor  with  power  of 
redemption  to  buy  back  his  property.  The  former  keeps  the  ownership  of 
the  land  pledged,  whereas  the  owner  no  longer  has  it.  Neither  of  these  differ- 
ences existed  in  the  very  old  law.  Afterwards  these  two  transactions  having 
become  separated  from  each  other,  their  distinctive  marks  were  seen  in  the 
characteristics  pointed  out  in  the  text:  "Olim,"  III,  1,  107;  Loysel,  484; 
Lauriere,  on  "Paris,"  I,  273;. Guyot,  see  "Contrat  pign." 

604 


Topic  8]    EXECUTION  UPON  POSSESSIONS,  REAL  SECURITIES    [§  432 

consent  of  his  relatives  or  of  the  lord,  the  debtor  gave  his  lands  as 
a  pledge  to  his  creditors  in  such  a  way  that  they  only  had  the 
possession  and  enjoyment  thereof;  ^  in  fact,  he  only  thereby  dis- 
posed of  the  profits  and  income,  the  issues  or  crops;  and  this  was 
within  his  rights.-  In  the  same  way,  when  the  inalienability  of 
the  domains  of  the  crown  had  been  proclaimed,  the  kings  gave 
them  in  gage  to  their  creditors.^  The  land-gage  is  created  by 
means  of  the  seigniorial  giving  of  seisin,  like  any  other  aliena- 
tion,* and  when  these  forms  fell  into  disuse  the  gage  took  place 
by  means  of  a  physical  delivery.  In  every  case  the  debtor  was 
dispossessed;  the  creditor  acquired  the  seisin  by  way  of  pledge; 
consequently,  he  was  protected  in  his  possession  against  third 
parties,  and  even  against  the  pledgor.^  The  profits  and  income 
belonged  to  him,  sometimes  upon  condition  of  deducting  them 
from  the  capital,  "  vif-gage  "  (live  pledge),  sometimes  without  any 
credit,  as  an  absolute  loss  for  the  debtor,  "  mort-gage  "  (dead 

'  He  did  not  cease  to  be  a  vassal,  etc.  Cf.  German  and  English  law.  As 
to  freeholds,  cf.  the  authors  cited.  Conditions  for  validity:  Franken,  p.  191; 
contra,  Glasson,  loc.  cit.;  "Cart,  de  N.-D.  de  Chartres,"  no.  265.  But  cf. 
Britz,  p.  928  ("pignus  stabile"). 

2  This  is  called  a  sale  of  the  revenues,  of  the  "poil"  (the  crops),  a  granting  of 
the  usufruct:  "Cart,  de  Cluny,"  no.  908;  "Ord."  of  1204  (crusaders),  1208 
(Christian  debtors  of  Jews);  Beaumanoir,  38;  35,  2  (fief);  17,  7;  24,  4;  34,  13; 
44,  52;  68,  11;  "A.  C,  Champ.,"  4;  "St.  Dizier,"  164;  " Jostice,"  8,  3,  5;  12,  6, 
38  (minor  debtor);  "Olim,"  I,  690;  II,  369,  etc.;  "T.  A.  C,  Bret.,"  296  (not 
bound  at  the  age  of  twelve);  Boutaric,  I,  35,  78  (Esmein,  p.  165,  cites  ed.  of 
I486);  "N.  R.  H.,"  1880,  375  (immovables  pledged  atMetz:  sale  of  the  land  to 
a  fictitious  grantee  who  pledged  it  to  the  creditor);  "A.  C,  Artois,"  22;  "A.  C, 
Bourg.,"  33  {Giraud,  II,  275):  sale  for  three  years  "without  the  consent  of  the 
lord";  "Us.  de  Guisnes,"  ed.  Tailliar,  p.  343.  The  repurchase  by  a  person  of 
the  same  lineage  was  only  allowed  in  the  case  of  a  perpetual  pledge,  a  true 
aUenationin  disguise:  Beaumanoir,  44,  52;  "Bergerac,"  49;  "T.  A.  C.,  Bret.," 
220;  "A.  C,  Anjou,"  II,  239.  —  Incorporeal  immovables:  Fertile,  IV,  520; 
Peltier,  188.  —  "Pfandschilling,"  sort  of  fictitious  purchase  price:  Franken, 
108,  etc.;  Wcrminghoff,  p.  13  et  seq.  —  Warranty  due  from  the  seller. 

^  Revolutionary  period,  cf.  Law  of  Nov.  22,  1790,  of  the  10th  Frim.,  year 
II,  14th  Vent.,  year  VII;  "Code  civil  interm.,"  Table,  see  "Domaine  en- 
gag^";  Dalloz,  "Rdpert.,"  id. 

*  Conflict  between  two  pledgees  and  one  pledgee  and  a  purchaser;  the 
priority  of  talcing  of  seisin  will  determine  the  matter:  Beaumanoir,  34,  13,  14, 
15  {Peltier,  p.  184);  52;  51,  20;  "L.  d.  Droiz,"  852;  "Cout.  d'Anjou,"  XIX, 
632  (ed.  B.-B.);  "Montpellier,"  41;  "Toulouse,"  109  et  seq.,  142  et  seq.; 
Franken,  p.  116;  "N.  R.  H.,"  1885,  206  (pledging  of  immovables  by  a  clod  of 
turf  at  Metz).  WTien  the  debt  is  extinguished  the  debtor  has  a  right  to  take 
possession  of  his  property  without  having  the  seisin  conferred  upon  him  by 
the  lord.  Counter-prestation :  Beaumanoir,  34,  58  et  seq.;  Franken,  p.  103 
et  seq.  —  The  lord  could  not  evade  the  giving  of  seisin  acquired  by  virtue  of  a 
pledge:  he  could  oppose  the  alienation  by  means  of  a  repurchase. 

5  Beaumanoir,  32,  30,  13;  "L.  d.  Droiz,"  124,  630,  637;  Desmares,  31,  108, 
177;  Glanville,  13,  28  ("seisina  ut  de  vadio  " ;  it  has  but  few  consequences  in  his 
eyes).  As  to  the  "  Gewere "  in  Germany,  difficulties :  Pertile,  lY,  518;  Franken, 
p.  110. 

605 


§  432]  OBLIGATIONS  [Chap.  Ill 

pledge) :  ^  "  The  '  vif-gage '  is  one  which  is  paid  off  out  of  the  issues, 
the  'mort-gage'  is  one  which  is  not  paid  off  out  of  anything."  ^  In 
the  case  of  the  "mort-gage"  the  profits  were  the  same  as  interest 
paid  to  the  creditor,  at  least  in  proportion  to  the  amount  that  their 
value  exceeded  the  expense  of  keeping  up  and  cultivating  the  land. 
There  was  in  this  a  form  of  usury  which  had  entered  so  much  into 
the  customs  that  it  remained  there  for  a  long  while  unperceived; 
in  the  twelfth  century  the  Church  decided  to  forbid  it,  with  all 
the  more  strictness  as  it  appears  to  have  been  practised  especially 

1  English  Law :  At  the  time  of  Bradon  the  pledge  of  lands  seems  to  have 
been  in  common  use  upon  the  Continent;  but  the  practice  described  by  Glan- 
ville  is  different,  and  perhaps  it  is  in  the  pledge  of  ownership  that  the  latter 
tells  us  about  that  we  must  seek  the  origin  of  the  "mort-gage"  of  the  Common 
Law.  By  this  name  is  designated  a  true  alienation  of  the  land  to  the  creditor 
with  the  reservation  that  it  will  be  annulled  if  the  debtor  pays  at  maturiiy; 
in  case  he  does  not  pay  at  this  time  the  land  is  irrevocably  lost  to  him.  The 
first  tempering  of  this  severe  law  consisted  in  the  clause  by  virtue  of  which 
the  debtor  kept  the  enjoyment  under  the  status  of  a  tenant  at  will.  The  judi- 
cial law  of  the  courts  of  equity  destroyed  the  common-law  mortgage  by  recog- 
nizing the  mortgagee  as  only  having  a  security  for  the  paying  back  of  his 
claim,  and  by  allowing  the  debtor  to  have  all  the  rights  of  an  owner;  even  ma- 
turity did  not  mean  for  him  the  irrevocable  loss  of  the  property,  as  would 
have  happened  at  law,  but  he  had  a  right  to  take  it  back  upon  condition  of 
paying  within  a  reasonable  time.  Under  this  form  the  English  mortgage  offers 
the  greatest  analogy  to  the  French  mortgage  ("hypotheque")-  The  mere  de- 
livery to  the  creditor  of  the  title  deeds  of  ownership  constitutes  a  mortgage  in 
equity.  In  general  the  mortgage  is  no  longer  formed  in  the  feudal  manner  by 
investiture,  long  since  abandoned,  but  by  means  of  a  simple  deed.  "Since 
a  law  of  Aug.  22,  1881,  the  creditor,  instead  of  paying  himself  in  kind  out  of 
the  immovable  which  has  been  pledged,  may,  if  he  prefers,  sell  it  and  pay 
himself  out  of  the  price":  Lehr,  p.  157;  Glasson,  "Inst.  d'Angl.,"  Ill,  238;  II, 

'310;  Pollock  and  Maitland,  loc.  cit. 

2  Loysel,  485;  Du  Cange,  see  "Pignus,"  etc.;  Glanville,  10,  6,  8;  "Reg. 
Maj.,"  3,  5;  J.  d'Ibelin,  32;  Beaumanoir,  68,  11;  "Summa  Norm.,"  Ill,  11; 
P.  de  Fontaines,  pp.  115,  119;  Boutaric,  I,  72;  Blackstone,  II,  441;  Toustain, 
"Le  Mortgage  de  Norm.,"  1577;  Thellier  de  Poncheville,  "Vente  k  T.  de 
Mortgage,"  1879  (p.  17);  Huher,  IV,  786;  Periile,  IV,  518;  Franken,  p.  123.  — 
In  German  law  the  live  pledge  ("vif-gage")  is  called  "Todsate"  or  "Todsat- 
zung,"  —  that  is  to  say,  mortgage,  because  he  liquidates  ("amortit")  the 
debt.  For  example,  "altere  Satzung"  in  general,  " Reichspfandschaft."  Cf. 
pledgee  of  the  domain  in  France:  enjoyment  until  he  is  paid  back.^ — As  to 
the  assignment  of  the  revenue  of  immovables  for  the  payment  of  a  debt  (il- 
legal in  the  old  law)  cf.  Pothier,  "Hypoth.,"  no.  229. 


[On  the  history  of  the  English  mortgage,  see  now  the  essay  of  Dr.  Harold 
D.  Hazeltine,  of  Cambridge  University,  England,  first  printed  in  the  "  Harvard 
Law  Review,"  Vol.  XVII,  p.  549,  and.  Vol.  XVIII,  p.  36,  and  later  reprinted  in 
Vol.  Ill  of  "  Select  Essays  in  Anglo-American  Legal  History."  This  essay  is 
an  abridgment  of  the  author's  longer  monograph,  entitled  "  Englische  Pfan- 
drechtsgeschichte,"  being  No.  92  in  the  series  "  Untersuchungen  zur  deutschen 
Staats-und  Rechtsgeschichte,"  edited  by  Prof.  Otto  Gierke. 

On  the  general  history  of  the  pledge  and  the  mortgage  in  France  and  in 
various  systems  of  law,  see  the  essay  by  John  H.  Wigmore,"  The  Pledge-Idea; 
a  Study  in  Comparative  Legal  Ideas,"  "Harvard  Law  Review,"  Vol.  II,  p.  29. 
—  Tkansl.] 

606 


Topic  8]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES    [§  433 

by  religious  establishments.^  From  this  time  on  the  "mort-gage" 
disappeared  from  French  practice,  save  only  in  a  few  exceptional 
cases  (portion  of  younger  children  or  marriage  portion  of  daughters; 
gifts,  and  alms  given  to  the  Church).-  The  canon  law  also  forbade 
the  forfeit-clause,  that  is  to  say,  the  agreement  by  virtue  of  which 
the  creditor  retained  the  property  pledged  as  a  payment  if  the 
debt  were  not  paid  at  maturity.^  Land-gage  never  gave  the 
creditor  the  ownership  however  long  it  lasted.^ 

§433.  The  Same:  (III)  "Bond."— The  foregoing  two  kinds  of 
security  had  the  disadvantage  of  putting  the  debtor  out  of  posses- 
sion,^ whereas  the  Roman  hypothec  allowed  him  to  keep  his  lands 
without  decreasing  the  security  of  the  creditor.  The  Customary 
law  reverted  to  the  Roman  institution  by  making  use  of  the  bond  ^ 
("obligation")  by  which  the  debtor  appropriates  beforehand  his 

1  In  1164,  Dig.  X,  5,  19;  Beaumanoir,  68,  11;  Glanville,  10,  8;  "Gr.  Gout. 
Norm.,"  20.  The  transaction  is  not  annulled,  but  it  is  reduced  to  a  live 
pledge.  In  Germany  the  granting  of  a  fief  joined  to  a  pledge  in  order  to  avoid 
being  accused  of  usury.  Why  the  English  mortgage  has  been  tolerated,  cf. 
Franken,  p.  189.  —  In  1199,  example  of  a  "mortgage"  in  the  South:  Pasquier, 
"Doc.  rel.  h  la  Seigneurie  de  Boussagues,"  p.  50;  Viollct,  p.  734;  "Cart,  de 
St.-Victor,"  no.  1117;  Endemann,  II,  337. 

2  Loysel,  485;  Boutaric,  I,  25;  Beaumanoir,  22,  2;  "Glim,"  I,  449;  no.  8; 
P.  de  Fontaines,  15,  14;  Lauriere,  "Ten.  de  5  Ans.,"  4;  Franken,  p.  130;  Peltier, 
p.  203. 

^  Already  during  the  barbarian  period  the  reaction  against  the  acquiring 
of  the  ownership  of  the  pledge  bv  the  creditor  who  was  not  paid  comes  to  light 
in  the  "L.  Wis.,"  5,  6,  3,  and  in  the  "Faux  Capit.,"  VII,  299,  313;  "L.  Feud.," 
I,  27;  II,  51;  "Ordojudic."  ("incertiauct."),2, 11;  Dig.  X,  "depign.,"7;  Beau- 
manoir, 54,  6;  Ragueau,  see  "  Tresf oncer."  The  "  Verf allspf and  "  becomes  the 
"Verkaufspfand,"  but  first  of  all  the  sale  is  frequently  made  by  the  pledgee 
himself:  "Milan"  (in  1216),  15,  and  not  as  in  the  prevailing  law,  by  the  law 
and  by  means  of  public  sales.  The  law  sells  as  well  as  guarantees,  says 
Beaumanoir,  51,1.  At  Lille,  "  mort-gage  "  during  two  years  and  two  days,  after 
which  the  land  is  forfeited:  "Roisin,"  p.  61.  Intermediate  system  of  the  hand- 
ing over  to  the  creditor  of  the  property  distrained  upon  after  appraisal  until 
the  amount  of  the  debt  is  paid :  Beaumanoir,  43,  3;  54,  8;  "T.  A.  C.,  Bret.,"  296; 
"Metz,"  "N.R.H.,"IV,342;  "Aries,"  8.  Cf.  Franken,  pp.  136,  148;  "Ass.de 
Jdrus.,"  "C.  des  B.,"  32;  "Montpellier,"  40;  "Alais,"  6;  Endemann,  II,  341. 

*  Beaumanoir,  24,  4.  Cf.  English  law:  "Once  a  mortgage,  always  a  mort- 
gage." 

^  The  same  piece  of  land  may  be  bonded  with  regard  to  several  persons, 
but  it  can  only  be  gaged  to  one.  The  primitive  pledge  frees  the  debtor 
(aa  to-day,  surrender  releases  a  wrongful  holder);  the  bond  or  hypothec 
("hj-pothfeque")  is  an  accessory  of  the  present  debt;  and  the  debtor  remains 
bound  if  the  land  mortgaged  is  not  sufficient  to  pay  off  the  creditor.  This  land 
is  sold  by  judicial  sale,  whereas  the  primitive  plfedge  becomes  the  property 
of  the  creditor.  Let  us  observe  that  these  characteristics  of  the  modern 
hypothec  were  only  created  with  difficulty;  originally,  or  in  the  conservative 
Customs,  the  same  piece  of  land  can  only  be  bonded  for  the  benefit  of  one 
creditor;  if  it  is  destroyed  a  creditor  only  has  a  right  to  the  remains,  etc.: 
Stobhe,  §  107;  Huhcr,  IV,  793,  21;  Britz,  p.  924.  The  warranty  due  from  the 
man  giving  the  pledge  may  be  equivalent  to  a  personal  obligation. 

^  Bond  still  has  the  meaning  of  hypothec  in  practice  (they  say  to  contract 
a  bond). 

607 


§  433]  OBLIGATIONS  [Chap.  Ill 

immovable  property  for  the  payment  of  his  debts.^  Indi- 
vidual ownership  having  gained  strength,  and  a  debtor  being 
now  able  to  alienate  his  property  thus,  when  he  found  it  was  im- 
possible for  him  to  meet  his  obligations,  it  was  perfectly  natural 
that  he  should  allow  them  to  be  distrained  upon  and  sold,  by  a 
clause  in  the  promise  itself.  The  debtor  kept  his  lands,^  but 
at  maturity  the  creditor  who  was  not  paid  found  himself  in 
about  the  same  situation  as  though  he  had  received  them  as 
a  gage.3 

From  early  times  the  bond  could  be  general  or  special. 

§  434.  The  Same.  —  (A)  The  General  Bond  affects  all  the 
possessions  of  the  debtor,  movables  and  inheritances,  present 
possessions  or  those  to  come;  ^  it  confers  neither  a  right  against 
third  i^ersons,  so  that  conveyances,  at  least  those  for  a  considera- 
tion, made  by  the  debtor  can  be  set  up  against  the  creditor,''  nor 
a  right  of  lien,  for  in  this  matter  it  is  only  the  priority  of  actions 

1  The  bond  differs  too  much  from  the  Roman  hypothec  for  one  to  be  able 
to  see  in  it  a  resurrection  of  this  forgotten  institution.  CJ.  "Liut.,"  67.  Its 
formation  seems  to  us  rather  to  be  accounted  for  by  reason  of  custom,  in  the 
same  way  as  it  would  seem  that  the  "Jiingere  Satzung"  of  the  German  law 
is  to  be  accounted  for  (Franken,  Brunner) ;  the  latter  grew  out  of  the  procedure 
of  distraint  upon  immovables;  it  gives  the  creditor  neither  the  ownership  nor 
the  enjoyment  of  the  immovables  of  the  debtor;  but  it  places  him  beforehand, 
with  respect  to  the  time  of  maturity,  in  the  position  of  one  who  had  obtained 
a  judgment  condemning  the  debtor  and  pronouncing  the  "missio  in  bannum" 
of  his  property.  The  effect  of  the  bond  in  French  law  is  analogous.  According 
to  the  general  opinion,  the  "Jiingere  Satzung"  made  its  appearance  in  the 
towns  in  the  thirteenth  century  (peculiar  position  of  urban  property,  such  as 
houses,  which  the  debtor  cannot  abandon).  Heusler,  II,  135,  and  §  104, 
maintains  that  the  "Jiingere  Satzung"  is  as  old  as  the  "alt.  Satz.,"  for  example, 
for  a  loan,  the  creditor  wishing  to  have  a  pledge  in  his  hands;  the  other  was  ap- 
plied to  future  obligations  that  were  uncertain,  such  as  warranty  or  suretyship, 
with  regard  to  which  there  was  no  occasion  to  dispossess  oneself  "hie"  and 
"nunc"  (for  example,  p.  147:  "Furpfand,"  "subpignus"  in  the  South). 

2  Forms  of  transition:  the  pledgee  retransfers  the  possession  of  the  land  to 
the  debtor,  who  will  thenceforth  be  his  tenant,  his  vassal,'^etc. :  Huher,  IV,  788, 
8.  Pledging  of  immovables  ("engagere")  at  Neufchdtel  until  1850:  this  was 
a  sale  for  a  term  or  with  the  power  of  repurchase,  the  creditor  being  able  to 
leave  the  debtor  in  possession  of  the  land:  Ostervald,  "Lois,  us.  et  cout.  de 
Neufchatel,"  p.  230.  Cf.  also  the  English  mortgage;  G.  Durand  (tenure  at 
will);  Viollct,  p.  672. 

^  The  relationship  between  the  judicial  pledge  and  the  hypothec  comes  out 
very  clearly  in  the  exposition  of  the  Belgian  law  given  by  Britz,  p.  927:  the 
hypothec  is  formed  by  acts  of  law,  when  an  order  to  convert  into  money  has 
been  given,  by  distramt  or  attachment,  carried*  out  in  fact,  and  complaint  at 
law,  taking  possession,  and  other  similar  ways  (judicial  hypothec);  in  Hainaut, 
real  distraint  led  to  the  same  result  as  the  hypothec.  Cf.  p.  931  (privilege  of 
the  person  carrying  out  the  distraint). 

*  "Siete  Part.,"  5,  13,  5:  it  does  not  cover  the  concubine  ("barragana"), 
her  children,  her  servants,  etc.;  "Wis.,"  2,  5,  7. 

^  Beaunianoir,  70,  10;  "Artois,"  5,  1;  Boutaric,  I,  25;  Viollet,  737.  Cf. 
"jiing.  Satz."  in  German  law  (id.);  Britz,  p.  925. 

608 


Topic  S]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES     [§  436 

which  gives  the  preference.^  What  good  is  it  then?  It  serves 
to  do  away  with  the  old  principle  that  immovables  could  not  be 
distrained  upon,^  and  to  make  the  heir  of  the  immovables  himself 
responsible  for  the  debts  of  the  debtor  at  a  period  when  debts 
were  only  paid  out  of  movables.^ 

§  435.  The  Same.  —  (B)  The  Special  Bond,  instead  of  affecting 
the  entire  inheritance  of  the  debtor,  only  affected  a  particular  im- 
movable; but  it  gained  in  strength  what  it  lost  in  extent.  Already 
in  the  thirteenth  century  it  carried  with  it  a  right  against  third 
persons  "*  and  a  lien,^  and,  consequently,  had  precedence  over  the 
general  bond.^ 

§  43G.  The  Same.  —  (C)  Comparison  of  the  General  Bond  and 
the  Special  Bond.  From  the  time  when  it  was  admitted  that  im- 
movables were  subject  to  execution  the  general  bond  should  have 
disappeared.  The  practitioners  preserved  it  by  giving  it  all  the 
effects  of  the  special  bond  (fourteenth  and  fifteenth  centuries).^  We 
may  say  that  from  this  time  on  the  bond  becomes  like  the  Roman 
mortgage  (hypothec)  and  should  rather  be  so  called.^    However 

1  Beaumanoir,  35,  20;  34,  52;  54,  6. 

2  It  allows  of  distraint  where  it  would  be  prohibited:  "A.  C,  Picardie," 
p.  90,  and  where  it  is  possible  it  facilitates  the  procedure:  Beaumanoir,  35,  2; 
"Olim,"  3,  158,  3. 

^  Ordinarily  the  debtor  binds  himself  and  his  heirs:  Beaumanoir,  35,  19, 
etc.;  "Gr.  Gout.,"  p.  217.  Cf.  Loysel,  329;  Huher,  IV,  789.  In  England  these 
clauses  were  indispensable  until  1833  (specialty  binding  the  heir).  —  The 
more  recent  law  is  stated  by  Masuer,  30,  2:  the  coercion  of  "nisi"  (excommuni- 
cation) and  physical  compulsion  no  longer  existed  against  the  heir,  but  this 
is  not  so  with  the  bond,  for  the  heir  and  the  deceased  are  one. 

4  Beaumanoir,  34,  52;  38,  11;  54,  5;  70,  11  et  seq.;  "A.  C.,  Artois,"  5,  2.  — 
One  finds  written  bonds  in  which  the  debtor  promises  not  to  alienate  the  lands 
which  he  binds:  Stobbe,  II,  309  (difficulties  before  the  fourteenth  and  fifteenth 
centuries);  Fertile,  IV,  721  (Act  of  the  year  777);  Huber,  IV,  788,  9.  But  this 
promise  could  not  be  set  up  in  opposition  to  a  third  party  who  acquired  and 
was  duly  given  the  seisin.  How  was  the  creditor  recognized  as  having  a  right 
of  pursuit?  This  right  belonged  to  the  pledgee  who  had  surrendered  the  land 
pledge,  —  for  example,  by  way  of  a  lease.  It  may  happen  that  this  compli- 
cated transaction  was  implied,  and  that  the  influence  of  the  Roman  hypothec 
worked  in  the  same  direction. 

*  This  right  exists  if  the  land  has  been  alienated,  for  no  one  but  the  creditor 
can  take  it  back  from  a  third  party  who  has  acquired  it.  When  the  immova- 
ble which  has  been  alienated  is  still  in  the  hands  of  the  debtor  it  is  more  doubt- 
ful: Boularic,  p.  386  (ed.  Char.,  1606);  Esmein,  p.  186. 

«  Boularic,  I,  25;  "T.  A.  G.,  Bret.,"  308;  "A.  G.,  Bourges"  185;  "L.  d. 
Dr.,"  321;  L'Hommeau,  III,  327  et  seq.  Later  on,  liens:  Britz  (warranty  of 
Brussels). 

'  The  tie  existing  between  the  executory  force  and  the  obligatory  form  of 
deeds  must  have  contributed  towards  this  result,  just  as  did  the  existence  of 
the  general  hypothec  in  the  Roman  law.  —  Flenry,  "Inst.,"  II,  16;  the  typical 
clause :  the  special  hypothec  does  not  derogate  from  the  general  hypothec,  nor 
the  general  hypothec  from  the  special  one;  Esmein,  p.  190. 

8  The  Roman  influence  merely  hastened  and  facilitated  a  spontaneous 

COO 


§  436]  OBLIGATIONS  [Chap.  Ill 

important  the  differences  which  are  raised  between  them  may  be, 
they  do  not  prevent  the  Roman  theory  of  the  mortgage  as  a  whole 
from  being  adopted  by  our  old  law.  Let  us  observe  the  principal 
points  upon  which  they  differed  from  the  Roman  mortgage: 
(a)  the  mortgage  over  movables,  admitted  at  Rome,  was  rejected 
as  a  general  thing;  ^  (6)  whereas  in  Rome  the  mortgage  was  formed 
by  a  simple  agreement,  the  old  French  law  demanded  formalities ; 
(c)  the  judgment-hypothec  is  a  creation  of  the  French  law;  (d)  as 
also  the  "  clearance." 

§437.  The  Same:  Hypothec-Mortgage.^  (1)  Countries  of  Pub- 
lic Nam.^  —  In  the  North  of  France  the  bond  could  not  be  made 
use  of  unless  it  were  accompanied  by  formal  acts  in  the  same 
way  as  conveyance;  ^  upon  this  condition  alone  did  it  confer  a 
right  against  third  persons  and  a  lien.  The  debtor  had  to  give  up 
possession  into  the  hands  of  the  lord,  who  in  his  turn  gave  the 
seisin  to  the  creditor;  and  the  judge,  as  we  have  seen,  stepped  into 
the  place  of  the  lord.^    The  effect  of  the  intervention  of  the  court 

evolution  of  the  customary  law.  —  Cf.  as  to  the  mortgage:  Paul,  5,  28,  4; 
"L.  Rom.  Wis.,"  p. 438;  "Wis. ,"5,  6;  "Fetrus,"  11,47  et.  seq.  "Hypotheca": 
"Montpellier,"  38.  "Ponderagium":  "Toulouse,"  109;  elsewhere,  assignment, 
to  encumber,  to  hinder. 

1  Esmein,  p.  198;  Viollet,  740.^  Cf.  Fleury,  II,  20;  Britz,  p.  960;  Argou, 
4,  3  (where  it  is  admitted,  as  it  is  in  the  countries  of  written  law,  it  only  gives 
a  right  of  preference).    Cf.  mortgage  of  movables  in  England. 

2  [The  French  term  "hypotheque"  will  here  be  translated  "mortgage," 
for  the  two  terms  represent  the  single  institution  which  serves  the  same 
purpose  in  the  modern  law  of  both  countries.  The  essential  thing  about  the 
"hypotheque  "  so  far  as  the  historical  contrast  with  the  mortgage  goes,  is 
that  in  the  hypotheque"  neither  title  nor  possession  is  in  the  creditor. — 
Transl.] 

^  [For  the  term  "public  nam,"  see  ante,  page  380,  note  6.  —  Tbansl.] 

*  Seisin  giving  Customs  ("Valois,"  etc.):  endowed  rents  are  always  pre- 
ferred to  those  which  are  not  endowed;  rents  which  are  not  endowed  are 
preferred  to  debts  which  are  not  privileged:  Argou,  IV,  3. 

*  The  bond  covering  ownership  was  only  possible  in  the  case  of  feudal 
possessions  if  given  by  means  of  the  formalities  of  disseisin-seisin;  it  consisted 
in  fact  of  a  true  alienation,  and  the  latter  assumed  the  consent  and  the  inter- 
vention of  the  lord.  Cf.  the  English  mortgage,  and  the  German  "altere  Sat- 
zung."  This  was  not  the  case  with  regard  to  the  giving  of  a  bond  for  the 
enjoyment  which  did  not  involve  the  rights  of  the  lord;  but  in  this  case,  in  order 
to  acquire  the  right  to  sell  the  immovable  the  creditor  had  to  obtain  seisin 
from  the  lord,  —  that  is,  to  do  some  formal  act.  This  last  proceeding  was 
applied  to  the  bond:  "A.  C,  Picardie,"  p.  91  (the  debtor  specially  binds  his 
house;  he  gives  up  the  seisin  of  it  to  the  lord  and  then  causes  the  creditor  to 
have  the  seisin  given  him).  Beaumanoir,  54,  5,  mentions  the  consent  of  the 
lord  and  the  formation  of  a  special  bond:  Boutaric,  I,  25.  In  the  common  law 
the  necessity  for  the  consent  of  the  lord  and  for  the  intervention  of  the  lord 
was  done  away  with,  just  as  in  the  case  of  the  transfer  of  ownership:  Beau- 
manoir, 27,  8  and  9;  Desmares,  274;  "Toulouse,"  109,  Ula,  131,  142:  "ponder- 
agium" established  by  a  public  act,  with  the  intervention  of  the  magistrate 
in  the  case  of  freeholds  and  of  the  lord  in  the  case  of  fiefs  and  copyholds.  — 
Cf.  the  German  "jiingere  Satzung":  declaration  before  the  court  or  the  town 

610 


Topic  8]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES    [§  438 

was  to  make  known  the  mortgage  to  everybody;  publicity,  one  of 
the  essential  bases  of  a  rational  system  of  mortgages,  was  intro- 
duced under  cover  of  feudal  customs.^  The  specific  lien  of  the 
gage,  another  principle  which  is  no  less  important,  was  equally 
implied  in  the  public  nam  system,  because  the  debtor  must 
give  possession  into  the  hands  of  the  lord  of  only  a  certain  piece 
of  land,  and  not  all  the  land  which  one  had  or  might  have,  in  a 
vague  manner.  The  writing  on  the  registers  of  the  clerk's  office, 
in  which  the  entire  transaction  was  set  forth,  was  thus  both 
public  and  specific,  —  specific  because  the  land  which  was  mort- 
gaged was  designated  in  the  most  exact  way,  public  because  the 
registers  were  open  to  everybody.^  The  Edict  of  1771  did  away 
with  these  methods,  and  instead  placed  countries  of  public 
nam  under  the  rule  of  the  common  law  in  matters  relating  to 
the  system  of  mortgages.^ 

§  438.  The  Same:  (2)  The  so-called  "  Customary  Common 
Law."  Mortgage  is  Creatable  only  by  Notarial  Deed.^  —  No  con- 
sensus has  been  reached  either  as  to  the  date  of  or  the  reason  for 
this  rule.  Our  old  authors  offered  two  explanations,  both  of  which 
still  have  their  partisans.  —  1st.  The  mortgagees  a  result  of  the 
power  of  execution  in  the  notarial  deed  and  arises  from  the  affixing 
of  the  public  seal.    Originally,  the  bond  was  strictly  connected  with 

council,  entering  upon  public  registers.  The  influence  of  the  Roman  law  often 
caused  these  forms  to  be  abandoned. 

1  Publication  in  Italy,  in  Venice  in  1288  (registers  in  which  are  entered  all 
contracts  relating  to  land),  etc.;  Pertile,  IV,  523  (bibl.);  in  Germany,  Hamburg 
and  Liibeck,  in  the  thirteenth  and  fourteenth  centuries;  in  the  Prussian  towns: 
Law  of  Sept.  28,  1693;  Prussia,  Law  of  Feb.  4,  1722,  Dec.  20,  1783,  Code  1794. 

*  "A.  C,  Artois,"  22;  Boutaric,  I,  25;  "Verm.,"  no.  77  (ed.  B.-B.).  The 
old  forms  persisted  in  certain  Customs,  —  for  example,  "Peronne,"  260; 
elsewhere  everything  is  reduced  to  a  question  of  an  entry  in  a  register:  "Cam- 
brai,"'  5,  11.  Ordinarily  there  is  a  register  for  pledge  transactions.  A  regu- 
lating order  of  July  27,  1673,  allows  the  wife's  mortgage  to  dispense  with  the 
public  nam  as  well  as  the  minor's  mortgage  and  the  judicial  mortgage. 
Cf.  details  in  Britz,  pp.  939,  957  (Hainaut:  "refunding  of  inheritance":  the 
debtor  disinherits  himself  of  the  land  without  appointing  the  creditor  as  his 
heir,  but  it  is  understood  that  the  land  can  be  sold  at  the  request  of  the  cred- 
itor who  has  not  been  paid;  and,  if  this  is  done,  the  judge  confers  the  inher- 
itance upon  the  purchaser). 

3  The  Edict  was  not  everywhere  put  in  force;  the  Decree  of  Sept.  19,  1790, 
declares  that  thenceforth  the  registration  of  the  contract  constituting  a  mort- 
gage will  take  the  place  of  public  nam. 

*  "Toulouse,"  109  (pubhc  deed);  "Sassari,"  in  1316,  I,  46  (id.)]  "A.  C, 
Anjou,"  II,  414;  "Paris,"  164, 165;  Planiol,  "Dr.  Civil/'  II,  792,  n.  3,  cites  an 
unpublished  act  of  the  "Cart,  de  Ste.-Melaine,"  at  Rennes  in  1293;  we  find 
closely  connected  in  it  the  admission  of  the  debtor,  the  sentence  pronounced 
by  the  notary,  who  is  a  delegate  of  the  judge,  and  the  bond  agreed  to  by  the 
debtor.  Cf.  "Tract,  univ.  jur.,"  VI.  Furthermore,  A.  Favre  and  d'Argentr6 
still  maintain  that  this  rule  i3  a  mistake  on  the  part  of  the  practitioners. 

611 


§  438]  OBLIGATIONS  [Chap.  Ill 

legal  execution  on  immovables;  the  execution  itself  took  place 
either  by  virtue  of  a  judgment  or  by  virtue  of  an  agreement  fur- 
nished with  a  seal  of  the  public  authority;  the  bond,  which  was  the 
first  form  of  the  mortgage,  was  thus  derived  from  the  affixing  of 
the  seal,  which  gave  to  deeds  their  executory  force.  Neither  the 
deed  under  a  private  seal  nor  the  ordinary  verbal  agreement  could 
give  a  mortgage.  If  there  was  some  hesitation  with  regard  to 
this  doctrine,  it  was  because  of  the  influence  of  the  Roman  rules, 
according  to  which  the  mortgage  resulted  from  a  mere  contract; 
but  from  the  sixteenth  century  on,  the  Roman  theory  was  finally 
rejected  as  a  consequence  of  the  vogue  of  a  system  of  proofs 
wherein  the  notarial  deed  occupies  the  most  important  position.^ 
—  2d.  The  mortgage  is  only  the  result  of  the  ivill  of  the  parties;  it 
does  not  in  any  way  derive  its  executory  force  from  the  deeds  and 
the  affixing  of  the  seal;  if  the  notarial  deed  possesses  executory 
force  and  the  effect  of  a  mortgage  at  one  and  the  same  time,  it  is 
a  remarkable  coincidence,  and  nothing  more.^  For  a  long  time  no 
special  form  was  required  for  the  formation  of  a  mortgage;  thus  it 
could  be  created  by  a  deed  under  private  seal  ^  or  a  verbal  agree- 
ment.^ But  from  the  sixteenth  century  on,  the  necessity  of  a 
notarial  deed  was  introduced  as  a  consequence  of  the  modi- 
fications introduced  in  the  theory  of  proofs;  and  out  of  what 
was  only  a  question  of  proof,  the  courts  made  a  substantial  ele- 
ment and  a  necessity.    A  deed  under  private  seal  ^  was  only  effec- 

^  Viollet,  p.  743,  no.  1  (texts);  Masuer,  18,  6;  Brodeau  on  Louet,  II,  15; 
"Cout.  de Paris,"  II,  201  (on  Art.  107) ;  L'Hommeau,  315:  "The  mortgage  does 
not  arise  from  the  agreement  of  the  parties,  but  from  the  authority  of  the 
king";  Botirdin  on  "Ord."  of  1539,  Art.  65:  "obsigilH  regii  auctoritatem " ; 
Pothier,  no.  9;  Valin,on  "La  Rochelle,"  III,  318,  etc.;  Floury,  "Inst.,"  II,  11; 
Davot,  "Tr.  de  Dr.  Fr.,"  VII,  573;  Loysd,  504,  note;  Britz,  p.  927.  —  Deeds 
drawn  up  in  the  administrative  form,  especially  leases  of  the  property  of  the 
State,  imply  a  mortgage  according  to  the  law  of  Oct.  2S-Nov.  5,  1790,  2,  13 
and  14. 

2  This  is  the  opinion  held  by  Esmein,  loc.  cit.:  Guyot,  see  "Hypoth.," 
Denisart,  ed.  1768,  see  "Hyp.,"  nos.  14  et  seq.;  Basnage,  p.  110. 

'  "A.  C,  Picardie,"  p.  90;  Boutaric,  I,  25,  106;  "A.  C,  Bourges,"  27;  Beau- 
manoir,  35,  3;  G.  Durand,  "Specul.,"  II,  2,  298;  "Gr.  Cout.,"  p.  222;  A. 
Favre,  "De  Error  pragm.,"  6;  Imbcrt,  "Prat.,"  I,  69,  3;  Esmein,  p.  216;  Viollet, 
p.  742.  (In  the  States  General  of  1614  the  Third  Estate  asked  that  the  mort- 
gage should  only  be  created  by  means  of  a  notarial  deed:  "Rec.  de  Lalource," 
XVI,  362);  Nic.  de  Passeribus,  "De Script,  priv.,"  1712,  p.  99;  "Encycl.  mcth.," 
see  "H>T)-,"  V,  100. 

<  "Bret.  A.  C.,"  192;  "N.  C.,"  176  et  seq.;  Imbert,  loc.  cit.^ 

^  Danger  of  antedating  in  the  case  of  deeds  under  private  seal.  It  is 
true  that  the  deed  under  private  seal  acquired  a  settled  date  by  means 
of  the  counter  register,  but  the  mortgage  has  superseded  this  institution 
(established  in  1553,  done  away  with  in  1588,  and  re-established  in  1693): 
Viollet,  p.   738.      CJ.  Dumoulin,  on  "Paris,"  8,  1,   16.  —  The  counter  reg- 

612 


Topic  8]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES    [§  438 

tive  if  it  were  acknowledged  in  court,  and  in  this  case  it  imported 
the  mortgage,  according  to  a  judicial  decision  which  the  Ordi- 
nance of  Villers-Cotterets,  1539,  91,  92,  sanctioned.  Proof  by 
means  of  witnesses  was  not  admitted  where  sums  of  more  than 
one  hundred  livres  were  involved,  after  the  passing  of  the  Ordi- 
nance of  Moulins,  1566.  Under  these  circumstances  one  can 
understand  that  practice  caused  the  mortgage  to  be  formed 
exclusively  by  means  of  the  notarial  deed.^ 

As  to  these  two  views :  it  is  quite  certain  that  during  the  late 
stages  of  our  old  law  the  power  of  execution  and  the  mortgage 
were  to  be  distinguished  from  each  other;  execution  was  ob- 
tained from  the  court,  the  mortgage  depended  upon  the  agree- 
ment. But  originally  the  mortgage  was,  if  one  may  say  so,  only 
a  transposition  of  compulsory  execution;  it  has  the  same  source; 
thus,  a  notarial  deed  which  had  been  drawn  up  abroad  could 
not  give  a  mortgage  upon  property  situated  in  France,  because 
executory  force  was  not  attached  thereto.^  Nevertheless  the  will 
of  the  parties  is  established  in  a  very  exact  way  by  virtue  of  a 
deed  of  this  nature;  the  same  observation  may  be  made  with  re- 
gard to  contracts  drawn  up  before  ecclesiastical  notaries.^  One 
is  tempted  to  offer  as  an  objection  to  this  that  judgments  must 
have  carried  with  them  a  mortgage-lien,  because  they  were  fur- 
nished with  executory  force,  but  that  this  judgment  lien  did  not 
always  exist;  it  seems  to  date  only  from  the  Ordinance  of  Moulins. 
This  argument  does  not  seem  decisive  to  us;  in  fact,  the  judgment 
imported  from  the  first  a  general  bond,  —  that  is  to  say,  the  power 
of  carrying  out  execution  against  the  debtor  even  upon  his  immov- 
ables. When  for  the  bond,  properly  so  called,  was  substituted  the 
mortgage  with  the  right  of  levy  and  of  preference,  they  hesitated 
to  derive  it  from  a  judgment;  it  was  necessary  in  order  that  it 
should  come  into  existence  that  the  creditor  should  have  been 
given  the  seisin  by  the  lord,  and  the  judgment  did  not  give  the 
seisin;  it  is  only  on  the  day  when  the  system  of  "  public  nam  " 

ister  continued  to  exist  in  Normandy:  Perrin,  "Orig.  des  Dr.  d'Actes," 
1901. 

^  The  bond  under  seigniorial  seal  implied  a  mortgage  throughout  the  king- 
dom and  could  not  have  executory  force  outside  of  the  lord's  domain:  Lauribre, 
on  "Paris,"  164  et  seq. 

2  Civil  Code,  2128.  Nor  did  judgments  rendered  by  foreign  tribunals 
result  in  a  legal  mortgage.  As  to  their  executory  force,  cf.  "Ord."  of  1629,  Art. 
121;  UHommcau,  315;  Guyot,  op.  cit.;  Louet,  II,  15. 

'  Fleury,  "Inst.,"  II,  11;  Loysel,  496.  It  was  the  same  with  judgments  of 
ecclesiastical  tribunals. 

613 


§  438]  OBLIGATIONS  [Chap.  Ill 

had  been  abandoned  by  the  Customary  common  law  that  the 
judgment  Hen  was  arrived  at. 

§  439.  The  Same:  Every  Notarial  Deed  Implies  a  General  Mort- 
gage. —  The  co-relation  between  the  power  of  execution  and  the 
mortgage  naturally  led  to  this  result.  Moreover,  notaries  inserted 
in  their  deeds  the  clause  by  virtue  of  which  the  debtor  bound  all 
his  goods,  owned  in  the  present  or  to  be  owned  in  the  future.  This 
clause  became  the  rule,  and  from  the  sLxteenth  century  on  it  was 
implied  in  every  notarial  deed.^ 

§  440.  The  Same:  Judgment  Lien  (Judicial  Hypothec).  Every 
Judgment  Implies  a  General  Mortgage-Lien.  —  Formerly  the 
creditor  who  was  armed  with  a  judgment  was  similarly  situated 
to  the  man  who  had  obtained  a  general  bond.  But,  when  this 
bond  became  transformed  into  a  mortgage  with  rights  against 
third  persons  and  a  lien,  the  judgment  no  longer  produced  it,  as 
we  beheve,  because  the  seigniorial  giving  of  seisin  was  lacking;  ^ 
the  only  lien  which  the  creditor  was  recognized  as  having  by 
virtue  of  a  judicial  sentence  was  that  which  resulted  from  priority 
of  actions.^  Nevertheless,  there  was  something  repugnant  in  not 
giving  a  judgment  as  much  effect  as  a  notarial  deed.  They  began 
by  giving  a  mortgage-lien  to  a  deed  under  a  private  seal  which 
was  acknowledged,  or  even  proved,  in  court,  as  if  it  were  acknowl- 
edged before  a  notary.^  After  which  the  Ordinance  of  Moulins, 
1566,  Art.  53,  decided  that  the  lien  would  result  from  the  judg- 

1  Esmein,  p.  202;  Loyseau,  "Deguerp.,"  Ill,  1,  5;  A.  Favre,  "De  Err. 
pragm.,"  I,  3.  —  Observe  a  confusion  of  the  personal  bond  and  the  mortgage 
that  is  due  to  the  archaic  conception  of  the  bond:  "T.  A.  C,  Bret.,"  367,  194; 
Boutaric,  I,  25:  as  soon  as  the  man  is  bound  the  mortgage  is  placed.  Cf. 
the  formula,  "He  who  binds  himself  binds  what  is  his." 

2  Also  the  legal  mortgage  was  introduced  with  difficulty  into  the  countries 
of  pubUc  nams:  Louet,  II,  25;  Regulating  Order  of  July  29,  1623;  "Reims," 
180;  Ferriere,  see  "Hyp."    Cf.  Britz,  luc.  cit. 

3  Beaumanoir,  34, 52;  "Gr.  Gout.,"  p.  203;  "T.  A. G.,  Bret.,"  306;  D'Argentr^, 
on  "Bret.,  A.  G.,"  188.  There  was  a  disagreement  as  to  the  fact  upon  which 
depended  the  priority  of  actions :  was  it  the  demand  of  payment  or  was  it  the 
judgment  of  condemnation  or  the  execution  of  the  sentence  (distraint)?  The 
placing  of  property  under  the  protection  of  the  law  should  have  been  decisive 
("Gout.  Not.,"  5;  cf.  Britz,  loc.  cit.);  but  during  the  interval  between  the  sen- 
tence and  the  distraint  there  was  the  chance  that  the  debtor  might  dispose  of 
his  property  in  fraud  of  the  rights  of  the  creditor.  Furthermore,  the  prefer- 
ence which  was  given  the  most  diligent  one  had  scarcely  any  reason  for  existing 
in  equity.  After  the  "Ord."  of  1666,  Lemaistre,  "Griees,"  32,  still  maintains 
that  preference  should  be  admitted:  Imbert,  "Prat.,"  ed.  1625,  p.  346.  —  "Siete 
Part.,"  5,  13,  13:  the  "pignus  judiciale"  is  only  effective  through  delivery,  thus 
differing  from  the  "pignus"  made  by  agreement. 

^  "A.  G.,  Paris,"  78  (voluntary recognizance) ;  "Ord."  of  Villers-Gotterets, 
1539,  92,  93  (recognizance  or  verification);  "N.  G.,  Paris,"  107  (mortgage  of 
the  day  of  denial);  Imbert,  p.  378.  Cf.,  however,  Favre,  "De  Err.  pragm.," 
I,  2;  Pothier,  no.  11;  Givil  Gode,  2123;  Planiol,  "Dr.  Giv.,"  II,  849. 

614 


Topic  8]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES    [§  441 

ment  itself.  This  solution  was  justified  by  saying  that,  according 
to  the  terms  of  the  Roman  laws,  the  judgment  was  a  quasi- 
contract  between  the  pleaders;  reference  was  made  to  the  insti- 
tutions of  the  "pignus  prsetorium"  and  the  "pignus  ex  causa 
judicati  captum";  it  was  also  argued  that  this  would  insure  the 
carrying  out  of  judgments.^  In  one  sense  we  may  say  that  the 
judgment-lien  is  derived  from  the  mortgage-lien  which  was  con- 
nected with  notarial  deeds;  in  another  sense,  it  seems  that  it 
also  had  its  origin  in  the  lien  of  the  first  one  to  distrain,  which 
disappeared  with  relation  to  immovables,  being  absorbed  to  a 
certain  extent  by  the  judgment-lien.^ 

§441.  Implied  Liens  (Hypothecs).  —  The  old  law  borrowed 
from  the  Roman  legislation  the  principal  cases  of  implied  hypo- 
thecs; ^  certain  of  them  which  were  given  the  right  of  preference 
have  become  our  liens  on  immovables.^     Although  general  and 

^  Judgment-lien  in  the  Italian  practice  in  criminal  matters  in  the  four- 
teenth century.  It  was  the  same  in  France,  Edict  of  1553,  17;  "  T.  A.  C,  Bret.," 
307;  Esmein,  p.  226.  Cf.  Imbert,  p.  378  (consequently,  in  civil  matters  it  is 
reasonable  that  such  a  lien  should  also  come  into  existence  at  the  time  of 
the  contest  or  of  the  judgment ;  this  note  written  before  the  "  Ord."  of  1566  proves 
that  the  judgment-lien  did  not  yet  exist  in  civil  matters).  Ferriere,  see  "Hyp." : 
formerly  the  judgment  only  implied  a  lien  from  the  time  of  the  execu- 
tion and  putting  in  possession;  after  the  Ord.  of  Mouhns  it  comes  into  existence 
the  day  the  judgment  is  pronounced. 

2  There  is  a  great  deal  of  discussion  as  to  the  worth  of  the  judgment-lien 
in  the  existing  law  {cf.  the  Belgian  system,  Prussian  system,  etc.,  in  Planiol, 
"Dr.  Civil,"  II,  848),  but  it  is  unanimously  recognized  that  the  framersof  the 
Civil  Code  were  lacking  in  logic  when  they  attached  a  mortgage  to  private 
deeds  acknowledged  at  law,  while  at  the  same  time  they  did  not  admit  the 
old  mortgage  arising  from  notarial  deeds. 

^  Some  are  general,  others  are  special  or  limited  to  certain  property.  The 
majority  of  them  have  been  borrowed  from  the  Roman  law.  Lien  of  the 
wife  over  the  possessions  of  her  husband,  of  the  minor  or  of  the  man  deprived 
of  civil  rights  over  those  of  the  guardian  or  the  custodian,  of  communities, 
etc.,  over  the  possessions  of  their  assignees  or  administrators  (Civil  Code, 
2121),  of  the  treasurer  over  the  possessions  of  his  debtors  (liable  for  taxes, 
contract  debtors  and  accountable  agents:  "Cout.  Not.,"  131;  Desmares,  191, 
etc.;  cf.  Law  of  Sept.  5,  1807,  privilege  of  the  treasury,  etc.),  of  the  vendor 
over  the  property  sold,  of  the  coparcener,  of  the  architect  (liens.  Civil 
Code,  2103),  and  of  a  legatee  (Civil  Code,  1017).  —  There  is  already  some 
question  of  them  in  the  texts  of  the  fourteenth  century:  "Montpellier,"  12; 
"Cout.  Not.,"  20,  62;  Desmares,  94,  etc.;  "Gr.  Cout.,"  2,  17.  —  In  the  case  of 
the  Sale  for  a  Term  of  immovables,  Ferriere,  on  "Paris,"  II,  1331,  remarks 
that  jurisprudence  changed  in  1628;  the  Romanists  maintained  that  by  giving 
credit  the  vendor  renounced  every  right  over  the  land  sold  unless  a  special 
agreement  were  made  to  the  contrar}';  this  agreement,  which  became  very 
common,  must  in  the  end  have  been  implied:  "Cout.  Not.,"  141,  159;  Pasquier, 
"  Inst.,"  p.  256.  In  1207,  in  the  South,  the  vendor's  "  obligatio  "  on  lands  sold  to 
cover  the  unpaid  purchase  price:  Pasquier,  "Doc.  rel.k  la' Seign.  de  Boussagues," 
p.  59  (1901). 

*  As  to  Liens  in  general,  see  Ferriere,  Gmjot;  Pothier,  26;  Domat,  3,  1, 
5;  "Code  civ.  interm."  At  Rome  lions  assumed  a  competition  between 
contract  creditors  (Dig.,  42,  5,   32:  "  privilegia  ...  ex  causa)."     Our  old 

615 


§  441]  OBLIGATIONS  [Cuap.  Ill 

secret,  implied  liens  were  admitted  in  countries  of  public  nam, 
where  their  validity  w^as  not  subjected  to  any  formalities.^ 

§  442.  Consequences  of  the  Mortgage.  —  These  are  ordinarily 
reduced  to  three:  the  right  to  realize  by  a  sale,  the  right  against 
third  persons  taking  under  the  debtor,  and  the  right  of  lien  against 
other  creditors.  —  (A)  In  default  of  payment  the  mortgage  creditor 
does  not  acquire  the  ownership  of  the  land  mortgaged ;  as  a  general 
rule,  he  does  not  even  sell  it  through  a  friendly  transaction  ;2  he 
finds  himself  under  the  necessity  of  having  a  land  distraint  or  judi- 
cial sale  carried  out  just  as  though  he  were  a  creditor  by  simple 
contract.  Under  this  early  form  of  the  bond,  the  mortgage  only 
conferred  upon  him,  in  fact,  the  right  to  distrain,  and  the  prac- 
tices of  the  expropriation  of  the  pledge  or  the  friendly  sale  did  not 
offer  sufficient  securities  for  the  debtor.  Thenceforth  the  debtor's 
surrender  of  the  immovable  loses  its  usefulness;  the  third  party  in 
possession  may  surrender  in  order  to  escape  from  the  annoyance  of 
the  procedure  to  remove  encumbrances.^  —  (B)  When  the  creditor 
proceeds  against  a  third  party  in  possession,  the  latter  can  ordi- 
narily set  up  the  plea  of  seizure  and  sale  against  the  creditor,  — 
that  is  to  say,  he  can  oblige  the  creditor  to  distrain  and  to  sell 
the  possessions  of  the  debtor.  But,  as  during  the  delays  neces- 
sary for  this  operation  the  mortgage  may  be  barred  by  prescrip- 
tion, he  is  allowed  to  sue  on  a  "declaration  of  mortgage," 
so  as  to  stop  the  running  of  the  prescription.     The  latter  takes 

authors,  when  they  borrowed  from  the  Roman  law  the  majority  of  its  reasons 
for  preference,  qualified  them  as  liens  without  concerning  themselves  as 
to  the  basis  of  these  preferences:  "A.  C,  Anjou,"  II,  514;  "Toulouse," 
111;  "Siete  Part.,"  5,  13.  (C/.  liens  of  the  EngUsh  law.)  They  distinguished 
between:  (a)  special  hens  over  immovables,  true  privileged  mortgages; 
Pothier,  no.  33;  "Proc.  Civ.,"  no.  648;  (6)  special  liens  over  movables 
based  upon  the  idea  of  an  expressed  or  implied  pledge;  the  right  of  Detainer 
may  be  likened  to  them  ("Ord."  of  1539,  97;  1566,  52;  1667,  27,  9),  although 
the  Roman  traces  of  the  defense  of  fraud  here  prevented  the  formation  of 
a  very  clearly  defined  theory  ("N.  R.  H.,"  1884,  351);  (c)  general  hens 
bearing  at  one  and  the  same  time  upon  movables  and  immovables  (costs, 
funeral  expenses,  salaries,  claims  of  the  treasurer) ;  they  depended  upon  the 
nature  of  the  claim.    Cf.  Planiol,  "Dr.  civ.,"  II,  753  et  seq. 

1  Loysel,  498. 

^  The  early  relinquishment  released  the  debtor  just  as  giving  up  released 
the  copyholder.  Cf.  exceptional  cases  in  which  the  old  law  was  kept  up: 
Argou,  4,  3.  Clause  of  avoidance:  Stohbe,  II,  311.  English  mortgage:  1st. 
The  creditor  keeps  the  property  bound  by  means  of  an  action  of  foreclosure; 
2d.  The  tribunal  may,  if  it  prefers,  order  the  sale  of  the  property;  3d.  The 
creditor  may  be  authorized  by  a  clause  in  the  deed  to  sell  the  property  hiniself 
without  further  formahty.  In  all  cases  the  intervention  of  the  law  is  required 
in  order  that  the  creditor  may  keep  the  property:  "Once  a  mortgage,  always 
a  mortgage." 
'  _  3  Ferrihe,  see  "Hyp.";  Bntz,  p.  953.  Cf.  Kohler,  "Pfandr.  Forsch.,"  p.  22. 

C16 


Topic  S]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES    [§  443 

place  at  a  period  of  from  ten  to  twenty  years  for  the  benefit  of 
the  third  party  in  possession.  —  (C)  Between  mortgage  creditors 
preference  is  regulated  according  to  the  date  of  the  mortgages: 
The  first  come  first  (excepting  for  special  liens)  .^  The  transfer 
of  claims  or  payment  with  subrogation  can  give  a  third  party 
the  rights  of  the  original  creditor.^  It  may  also  happen  that  his 
own  mortgage  is  encumbered  with  other  mortgages,  and  this  fre- 
quently takes  place  with  a  system  of  general  mortgages  like  that 
of  the  old  law;  the  rank  then  becomes  complicated  with  sub- 
ranks,  that  is  to  say,  that  the  sum  for  which  the  creditor  has  been 
marshaled  is  distributed  between  his  own  creditors  according  to 
the  date  of  their  mortgages.^ 

§  443.  "  Clearance."  —  IMost  lands  were  encumbered  wath 
mortgages,  because  every  notarial  deed  implied  a  general  mort- 
gage over  the  possessions  of  the  debtor,  and,  as  there  was  nothing 
which  told  of  its  existence,  the  most  careful  purchaser  ran  the  risk 
of  finding  himself  evicted  by  a  mortgage  creditor  who  was  unknown 
even  to  the  vendor;  and  this  might  happen  after  a  long  period. 
Under  these  circumstances  dealings  in  immovables  became  al- 
most impossible.  The  evil  was  remedied  by  the  clearance,  or  power 
of  the  purchaser  of  a  piece  of  property  which  had  been  mortgaged 
to  free  it  from  the  mortgages  which  encumbered  it  by  paying  the 
purchase  price  to  the  creditors,  after  having  put  them  in  default 
by  giving  them  notice;  this  was  done  by  means  of  certain  formal- 
ities, and  foreclosed  them  if  they  did  not  present  their  claims  at 
this  specified  time.  They  were  reimbursed  in  spite  of  themselves, 
but  general  expediency  required  this  sacrifice  on  the  part  of  pri- 
vate interests.  This  clearance  was  invented  by  the  practitioners. 
Having  found  that  the  compulsory  decree  cleared  oft'  the  mort- 
gages, they  contrived  a  feigned  proceeding  of  distraint  in  order 
to  obtain  this  same  result:  the  purchaser  had  an  understanding 
with  a  third  party,  who  presented  himself  as  a  creditor  and  dis- 
possessed him  from  the  land  which  he  had  purchased.  This  re- 
sulted in  the  voluntary  decree,  so  called  because  the  parties  both 

^  Roman  rule:  "Prior  tempore  potior  jure";  Loysel,  492,  686.  The  same  in 
English  law  (excepting  "soudure"  or  con.soli{lation  of  mortgages). 

*  As  to  subrogation  except  in  the  case  of  the  married  woman's  mortgage, 
cf.  Beiulant,  "R.  crit.,"  XXVIII,  ;30. 

'  The  sub-ranks  were  abolished  because  of  the  expenses  and  the  delays  to 
which  they  gave  rise  (Code  of  Civil  Procedure,  775),  but  if  a  mortgaging  of 
the  mortgage  is  no  longer  admitted  in  our  law,  practice  has  introduced  assign- 
ments or  subrogations  of  mortgages  which  have  pretty  nearly  the  same  re.suit 
with  this  slight  difference,  that  they  do  not  give  rise  to  the  proceedings  of 
sub-orders. 

617 


§  443]  OBLIGATIONS  [Chap.  Ill 

agreed  to  obtain  it.^  The  procedure  there  employed  did  not  differ 
from  that  of  the  compulsory  decree  (excepting  in  what  concerned 
the  judicial  lease,  which  obviously  did  not  apply) ;  it  produced  the 
same  effects.  But  it  was  only  at  the  price  of  excessive  delays  and 
great  expense  that  the  clearance  was  arrived  at  in  this  roundabout 
way.  Once  the  institution  had  been  accepted,  the  interminable 
preliminaries  of  land  distraint  were  gotten  rid  of,  and  in  their 
place  was  substituted  the  more  simple  procedure  of  letters  of  rati- 
fication.2  The  Edict  of  June,  1771,  which  regulated  this  pro- 
cedure, gave  the  purchaser  a  means  of  causing  the  expiration  of 
the  mortgages  by  obtaining  from  the  Chancery  letters  which  rati- 
fied the  purchase;  the  creditors  who  thought  that  the  price  was 
lower  than  the  value  of  the  property  were  given  an  opportunity 
to  offer  opposition  by  means  of  certain  formalities  and  to  outbid 
this  price;  if  this  were  not  done,  the  letters  were  delivered,  and  then 
their  mortgages  were  cleared  off.^  It  is  this  Edict  of  1771  wliich 
created  the  "conservators  of  mortgages,"  whose  duty  it  was  to 
hear  these  objections.'* 

§  444.  Revolutionary  Law.  —  There  are  two  principal  defects  for 
which  the  system  of  mortgages  of  the  old  law  may  be  reproached: 
the  secret  character  of  the  mortgage,  and  the  great  number  of 
general  mortgages.  Colbert,  in  an  Edict  of  March,  1673,  which 
was  repealed  almost  as  soon  as  it  was  passed  (April,  1674)  at- 
tempted to  introduce  publicity,  —  that  is  to  say,  light,  into  the 
chaos  which  the  old  system  of  security  on  real  property  presented. 
The  nobility,  fearing  to  lose  its  prestige,  was  opposed  to  this  use- 
ful reform;  families  did  not,  any  more  than  the  State,  wish  to  have 
their  income  and  expenses  known.^    That  which  royalty  had  not 

1  "Ord."  of  November,  1441  {Isambert,  IV,  86):  clearing  off  of  rents  on 
houses  in  Paris. 

^  Origin  (see  Ferriere) :  rents  on  the  Hotel  de  Ville  in  Paris  could  be  mort- 
gaged; he  who  bought  them  paid  them  off  first  of  all  by  means  of  a  forced  decree 
and  by  virtue  of  an  Edict  of  March,  1673,  by  obtaining  letters  of  ratification 
under  the  Great  Seal  (that  is  to  say,  from  the  Chancery,  and  not  from  the 
Parliament). 

3  As  to  the  procedure,  cf.  Civil  Code,  2193  et  seq.;  Law  of  the  11th  Brum., 
year  VII. 

*  Bibl.  in  Camus,  No.  1665;  Commentaries  or  Questions  upon  the  Edict: 
Masuer,  "Obs.,"  1779;  Brohard,  1780;  Grenier,  1787;  R.,  1785;  Corail  de 
Ste.-Foy,  1785. 

6  Previous  to  this,  cf.  Ord.  of  1424  of  Henry  VI  {Isambert,  VIII,  693,  Art.  6), 
Edicts  of  1553,  1581,  1606  (fiscal  measures).  CJ.  The  Edict  of  August,  1626, 
with  regard  to  Brittany:  Girard  de  Joly,  "Offices,"  I,  212  (registration  clerks). 
The  "Ord."  of  1673  created  in  the  principal  bailiwicks  a  registry  office  where 
creditors  should  make  themselves  known  by  bringing  forward  claims;  per- 
sons setting  up  claims  were  preferred  to  those  who  did  not  do  so. 

618 


Topic  8]    EXECUTION   UPON   POSSESSIONS,  REAL   SECURITIES    [§  444 

had  the  courage  to  do,  the  Revolution  found  itself  under  the 
necessity  of  carrying  out  as  a  consequence  of  the  disturbance  of 
business  caused  by  political  events.^  By  means  of  two  celebrated 
laws  it  attempted  to  establish  a  rational  system  of  mortgages. 
The  first,  and  the  most  original,  the  Law  of  the  9th  Messidor, 
year  III,  allowed  the  owner  of  a  piece  of  land  to  take  a  mortgage 
on  himself,  for  ten  years  at  the  most,  and  up  to  the  amount  of 
three-quarters  of  the  merchantable  value  of  the  land;  the  deed 
drawn  up  by  the  conservator  of  mortgages  was  called  an  ac- 
knowledgment of  mortgage;  this  could  be  transmitted  by  way  of 
endorsement  and  constituted  an  executory  title  for  the  benefit 
of  the  bearer.  This  law  remained  a  dead  letter.^  The  Law  of  the 
11th  Brimiaire,  yearVII,  did  away  with  this  institution,  the  prime 
feature  of  which  sprang  from  the  theory  of  rent-charge  and  the 
custom  of  "assignats"  which  was  so  greatly  condemned.^  It  gave 
as  the  bases  of  security  on  real  property  the  two  principles  of  pub- 
licity and  specialty.  The  publicity  took  place,  not  by  the  copying 
of  the  deed,  as  in  the  case  of  the  transfer  of  ownership,  but  by 
the  entry  upon  a  public  register.  The  entry,  which  was  necessary 
for  every  mortgage  without  any  exception,  had  to  be  specific  with 
relation  to  the  debt  and  specific  with  relation  to  the  immovable 
which  was  mortgaged,  —  that  is  to  say,  it  had  to  indicate  in  a 
precise  manner  the  amount  of  the  debt  and  it  had  to  specify  the 
immovable,  so  that  the  real  credit  of  the  owner  could  be  exactly  cal- 
culated. The  Civil  Code  made  the  mistake  of  not  strictly  uphold- 
ing the  logical  unity  of  this  system,  so  much  so  that  during  the 
entire  nineteenth  century  it  has  been  necessary  to  contemplate 
a  recasting  of  the  title  on  Liens  and  Mortgages;  this  was  only 
partially  realized  by  the  Law  of  March  23,  1855.  —  Abroad,  the 
very  best  result  has  come  from  the  German  system  of  mortgages,* 

*  As  to  the  cadastral  survey,  cf.  Declaration  of  Nov.  23,  1765:  Bequet, 
"R/'p.  de  Dr.  adm.";  see  "Gr.  Encycl."  In  our  own  time  there  has  been 
some  thought  of  making  use  of  the  cadastral  survey,  not  only  for  the  laying 
of  taxes,  but  for  the  strengthening  of  ownership  {cf.  Flammer,  Besson,  op.  cit.). 
The  Convention  had  contemplated  creating  a  Great  Book  of  territorial  owner- 
ship: Declaration  of  the  8th  Pluv.,  year  II  (not  carried  out). 

*  Prorogued  by  the  Laws  of  the  26th  Frim.,  19th  Vent.,  19th  Prair.,  24th 
Therm.,  year  IV;  finally  suspended  by  the  Law  of  the  28th  Vend.,  year  V.  — 
"Codes  Tripier,"  cd.  Monnier,  under  Art.  2124  of  the  Civil  Code,  see  a  model 
for  an  acknowledgment  of  mortgage. 

*  One  read,  for  example,  on  an  assignment:  "Assignment  for  50  livres. 
Mortgage  on  the  national  domains."  —  As  to  rents  and  the  mortgage,  cf. 
Heusler,  II,  151;  Stohhe,  §  104. 

*  Sohm,  op.  cit.;  Viollet,  p.  747  (bibl.);  Huher,  §  157;  Besson,  "Livres  fon- 
ciers,"  1891.  —  Cf.  pledge  letters  of  credit  on  land  in  France. 

619 


§  444]  OBLIGATIONS  [Chap.  Ill 

with  its  principle  of  legality;  its  conservator,  who  is  a  true 
judge,  and  who  passes  upon  the  declarations  which  are  made 
to  him;  its  land  registers  ("Grundbiicher")  kept  by  parcels,  and 
not,  as  ours  are,  by  names  of  persons;  its  letters  or  acknowledg- 
ments of  mortgages;  its  notes  on  real  property;  and  its  nego- 
tiable drafts  on  real  property,  which  are  like  commercial  goods. 
It  had  its  origin  in  the  "neue  Satzung,"  and  in  the  theory  of 
rent-charges;  in  various  ways  it  recalls  the  Law  of  Messidor, 
year  III.^ 

»  Law  of  May  5, 1872;  German  Civil  Code,  1113. 


620 


Topic  l] 


GENERAL   IDEAS 


[§445 


CHAPTER  FOUR 
INTESTATE  SUCCESSION  AND   GRATUITOUS  CONVEYANCES 

Topic  1.  General  Ideas. 

Topic  2.  Intestate  Succession.     Various  Kinds  of  Heirs. 

Topic  3.  Acquisition  of  Heirship  and  its  Consequences. 

Topic  4.  Testamentary  Provisions. 

Topic  5.  Gifts  "inter  vivos"  and  "causa  mortis." 

Topic  6.  Coven.^nts  Relating  to  Inheritance. 

Topic  7.  Reservation  and  Legal  Sil\re. 


Topic  1.    General  Ideas 


445.  Preference  for  Intestate  Suc- 

cession. 

446.  Various  Kinds  of  Succession. 

447.  Plurality  of  Successions. 


§  448.  Countries  of  Written  Law. 
§  449.  Reservation  and  Legal  Share. 
§  450.  Gratuitous  Conveyances. 


§  445.  Preference  for  Intestate  Succession.  —  Intestate  succes- 
sion was  the  only  one  known  to  the  old  Germanic  law,  and  if 
the  will  has  come  to  take  a  place  beside  it,  it  has  not  ceased 
throughout  the  Middle  Ages,  and  even  until  "our  day,  to  have  a 
certain  superiority  over  the  will.  This  Germanic  trait  had  struck 
Tacitus  ("Germ.,"  20)  by  its  contrast  to  the  Roman  habits;  at 
Rome  no  honorable  citizen  dies  without  having  made  his  will.  In 
Germania  the  free  man  has  no  conception  of  this  act.  The  formu- 
lae of  the  Middle  Ages,  "The  appointment  of  an  heir  cannot  be 
done,"  and  "Deus  solus  heredes  facere  potest,"  attack  the  Roman 
principles  scarcely  less,  because  the  will  in  Rome  is  before  every- 
thing else  a  means  of  creating  heirs  for  oneself.  Whence  comes 
this  lack  of  wills  in  the  Germanic  custom,  and  in  the  later  law  the 
disfavor  for  an  act  which  is  so  natural  in  our  eyes?  It  is  because  it 
was  incompatible  with  the  old  ideas  of  family  joint  ownership, 
and  of  the  preservation  of  possessions  in  the  family.  The  will 
substitutes  the  wish,  or  even  the  caprice,  of  the  individual  for  the 
traditional  usage,  and  the  shortsightedness  of  a  man  for  the  wis- 
dom of  generations.    By  choosing  his  successor  to  please  his  fancy 

621 


§  445]  INTESTATE  SUCCESSION, GRATUITOUS  CONVEYANCES  [Chap.  IV 

the  head  of  the  family  runs  the  risk  of  upsetting  the  forxiiation  of 
this  group,  which  existed  before  him,  and  whose  stabiHty  in  the 
primitive  social  state  is  a  question  of  life  and  death  for  the  indi- 
viduals who  go  to  make  it  up.  Privileges,  such  as  the  preference 
of  males,  and,  to  a  lesser  degree,  the  right  of  primogeniture,  have 
their  "raison  d'etre"  in  the  superior  interest  of  the  group. 

§  446.  Various  Kinds  of  Succession.  —  Succession  under  its 
primitive  form  is  limited  to  that  narrow  circle  of  persons  who 
constitute  a  household,  to  those  relatives  who  have  lived  with  the 
deceased  under  the  same  roof,  at  the  same  table,  and  who  can  be 
likened  to  the  Roman  "sui  heredes."  If  there  were  not  any  of 
these,  the  possessions  of  the  deceased  returned  originally  perhaps 
to  the  community  of  the  village  ("vicini");  following  this,  to  the 
relatives  w^ho  did  not  live  in  a  state  of  community  with  the  de- 
ceased, to  the  lineage,  to  the  "Sippe";  in  this  case  they  devolved 
not  exactly  by  taking  into  account  the  nearness  of  the  relation- 
ship, but  by  way  of  consanguinity.  By  this  is  understood  groups 
of  relatives  who  have  a  common  ancestor.  Thus  the  deceased  and 
his  descendants  form  a  first  degree  of  consanguinity;  the  father  of 
the  deceased,  and  all  those  who  descended  from  him  (consequently, 
the  brothers  of  the  deceased,  etc.),  a  second  degree;  the  grand- 
father and  his  posterity,  a  third  degree;  and  so  on  and  so  forth. 
To  relationship  through  the  males  (or  agnatic)  was  contrasted  re- 
lationship through  the  women  (or  cognatic);  under  the  system 
which  excluded  women  from  inheriting,  the  mother  did  not  trans- 
mit anything  to  her  son,  and  the  maternal  relatives  or  cognates 
could  not  set  up  any  claim  to  the  succession  of  the  latter.  From  the 
day  when  women  inherited  it  was  possible  to  distinguish  in  the 
patrimony  of  every  decedent  between  two  masses,  —  the  mass  of 
possessions  coming  from  the  father  or  from  the  paternal  line,  and 
the  mass  of  possessions  coming  from  the  mother  or  from  the  ma- 
ternal line.  The  majority  of  the  Customs  practised  what  is  called 
"  division  "  in  the  succession  of  the  deceased,  and  conferred  the  pater- 
nal possessions  on  his  paternal  relatives  and  the  maternal  possessions 
on  his  maternal  relatives,  "paterna  paternis,  materna  maternis." 
Some  of  them  went  even  further  and  proceeded  to  a  redivision  in 
each  one  of  the  successions  which  were  thus  established;  for  ex- 
ample, the  paternal  possessions  were  subdivided  among  the  paternal 
relatives  and  the  maternal  relatives  of  the  father  of  the  deceased. 

§  447.  Plurality  of  Successions.  —  The  old  law,  as  we  have 
seen,  sought  for  the  origin  of  possessions  in  order  to  regulate  their 

622 


Topic  l]  GENERAL   IDEAS  [§  448 

devolution  by  way  of  inheritance;  it  also  depended  upon  their 
character  in  such  a  way  that  each  category  of  possessions  gave 
rise  to  a  distinct  succession;  at  the  death  of  a  person  his  patri- 
mony was  disintegrated,  and  each  fragment  followed  its  own  law: 
fiefs,  copyholds,  servile  tenures,  allodial  tenures,  movables  and 
immovables,  personal  belongings  and  acquests,  homestead  ("lar" 
in  the  Pyrenees  or  "Hantgemal"  in  Germany),  clothing  and  orna- 
ments of  the  women  ("rhedo"  in  the  barbarian  laws,  "Gerade" 
in  the  German  law),  arms  and  military  equipment  ("Heergewate," 
German).  All  these  possessions  had  their  particular  destination 
and  were  subject  to  rules  which  conformed  with  it.  The  unity  of 
the  patrimony  and  the  perpetuity  of  the  person  of  the  deceased 
by  the  heir,  —  these  fundamental  principles  of  the  Roman  system 
of  succession  were  with  great  difficulty  introduced  into  our  old 
legislation;  and,  moreover,  they  were  never  entirely  admitted; 
the  possessions  of  noble  families  had  always  their  own  special  sys- 
tem, even  in  the  countries  of  written  law;  and  in  the  countries  of 
Customs,  besides  this,  the  succession  of  personal  belongings  is  con- 
trasted with  that  of  acquests  and  movables.  Loysel  could  still  say 
while  alluding  to  the  Roman  distinction  between  the  "pagani"  and 
the  "milites,"  "The  French,  like  warriors,  have  received  various 
patrimonies  and  various  sorts  of  heirs  from  the  same  person." 

§  448.  Countries  of  Written  Law.  —  Apart  from  the  exception 
which  we  have  mentioned  with  relation  to  the  possessions  of  the 
nobility,  community  of  succession  is  the  rule  in  countries  of  writ- 
ten law,  and  possessions  devolve  upon  the  relatives  in  conformity 
with  the  probable  intention  of  the  deceased.  It  is  the  nearest 
relative  who  receives  them  on  principle,  because  it  is  he  for  whom 
the  deceased  had  the  most  lively  affection.  Privileges  in  the  in- 
terest of  the  family  were  effaced  because  of  this  new  consideration. 
The  very  simple  system  which  was  organized  by  Justinian  in  the 
celebrated  "Novella,"  118,  is  applied.  In  countries  of  Customs 
the  tendency  to  follow  the  principle  of  presumed  affection 
makes  itself  felt  only  in  the  case  of  succession  to  movables  and 
acquests.  As  far  as  the  other  possessions  are  concerned,  which 
are  often  the  most  important  of  all,  the  guiding  principle  is  the 
keeping  of  property  in  the  family.  The  Revolutionary  legislation 
unified  the  system  of  successions  by  establishing  the  equality  of  all 
possessions  and  the  equality  of  persons;  distinct  masses  were  no 
longer  separated  according  to  their  nature  and  their  origin;  they 
were  all  made  alike,  and  privileges  such  as  the  right  of  primo- 

623 


§  448]  INTESTATE  SUCCESSION,  GIL^TUITOUS  CONVEYANCES  [Chap.  IV 

geniture  or  the  right  of  the  male  Une  were  aboHshed.  However, 
one  can  say  that  the  system  of  succession  under  the  Revolution 
was  frankly  individualistic;  the  traditional  right  of  the  family  is 
shown  in  the  classification  of  heirs  and  in  the  tremendous  restric- 
tions upon  the  right  of  making  gratuitous  conveyances. 

§  449.  Reservation  and  Legal  Share.  —  The  right  of  the  rela- 
tives over  the  family  possessions  is  not  only  shown  by  the  power  to 
collect  them  by  means  of  intestate  succession,  that  is  to  say,  after 
the  death  of  their  actual  owner;  it  is  also  shown  during  the  lifetime 
of  the  latter.  Thus,  certain  barbarian  laws  recognized  the  parti- 
tion of  the  community  inheritance  between  the  father  and  the 
children  during  their  lifetime,  —  a  partition  a  curious  example  of 
which  is  furnished  by  the  parable  of  the  prodigal  son.  Another 
application  of  this  is  found  in  the  giving  up  of  possessions  of  which 
the  German  "Evelganc"  seems  to  be  a  very  old  form,  and  which 
the  Civil  Code  has  disguised  under  the  name  of  "  partition  among 
ascendants."  The  family  communities,  or  "  Ganerbschaften," 
the  carrying  on  of  the  conjugal  community  between  the  surviving 
spouse  and  the  children  born  of  the  marriage,  the  rights  of  the 
children  over  the  dower  of  their  mother,  and  entails  in  trust,  also 
bear  witness  in  various  ways  to  the  power  of  the  old  idea  with 
relation  to  the  formation  of  the  family.  But  it  is  especially  in  the 
institution  of  the  repurchase  by  a  person  of  the  same  lineage  and 
the  hereditary  reservation,  which  are  so  widespread,  that  the  rights 
of  the  relatives  come  to  light.  By  these  means  the  possessions  of 
the  family  become  almost  incapable  of  being  disposed  of  to  the 
advantage  of  the  family.  The  Roman  legal  share,  which  took  its 
place  alongside  of  the  reservation  in  countries  of  Customs,  and 
which  alone  obtained  in  countries  of  written  law,  has  an  entirely 
different  object;  it  is  established  "by  reason  of  compassion,"  it  is 
a  kind  of  provision  for  support  left  to  the  very  near  relatives. 

§  450.  Gratuitous  Conveyances.  —  In  the  old  Germanic  law 
adoption  was  undoubtedly  the  only  means  at  the  disposal  of 
individuals  for  transmitting  their  patrimony  at  their  decease  to 
people  other  than  their  relatives;  nevertheless,  it  was  possible  only 
for  a  person  who  had  no  posterity  to  do  this.  From  this  arose 
the  appointment  of  an  heir  in  the  Salic  Law,  which  was  already  no 
longer  an  adoption,  but  which  produced  analogous  results.  It 
seems  as  though  it  had  been  supplanted  by  "donationes  post 
obitum,"  which  were  very  frequent  after  the  seventh  century, 
especially  in  favor  of  the  Church.    To  these  institutions  are  re- 

624 


Topic  l]  GENERAL   IDEAS  [§  450 

lated  the  covenants  on  a  future  succession  of  the  feudal  and  cus- 
tomary periods.  They  operate  especially  in  contracts  of  marriage, 
where  they  have  served  until  our  day  to  facilitate  family  arrange- 
ments. Everj'where  else  the  \\'ill  has  replaced  them.  It  came  into 
practice  under  cover  of  and  in  order  to  assist  religious  ideas.  The 
archaic  "share  of  the  dead"  of  pagan  times,  consisting  of  horses 
and  arms,  which  were  closed  up  in  his  tomb,  or  were  cre- 
mated with  him,  has  its  counterpart  in  the  disposals  "  pro  remedio 
animse"  of  the  Christian  period.  These  pious  legacies  or  charges 
of  a  religious  character  constituted  at  first  the  entire  will.  As 
it  was  to  be  feared  that  the  natural  heirs  would  not  show  a  very 
great  zeal  in  carrying  out  the  last  wishes  of  the  dead,  because  these 
wishes  would  result  in  depriving  the  heirs  of  the  property  on  which 
they  had  counted,  the  execution  of  these  wishes  was  confided  to 
third  parties  who  were  disinterested,  "erogatores,"  "eleemosy- 
narii,"  and,  finally,  to  testamentary  executors,  in  whom  are  ordi- 
narily seen  the  successors  of  the  intermediaries  who  were  charged 
with  a  similar  role  in  the  appointing  of  an  heir.  The  Roman  will 
marks  the  last  stage  of  evolution;  it  includes  disposals  of  every 
kind,  and  charges  "pro  remedio  animae"  have  lost  a  good  deal  of 
their  importance.  One  can  say  that  this  act,  which  was  formerly 
entirely  religious,  tends  to  become  secularized.  But,  although  the 
use  of  the  will  was  widespread,  the  legatee  could  not  be  compared 
with  the  heir  at  law,  —  at  least,  in  countries  of  Customary  law: 
the  former  was  only  a  legatee,  a  successor  to  the  property,  whereas 
the  latter  perpetuated  the  person  of  the  deceased.  These  formu- 
lae are  significant  in  spite  of  their  exaggeration.  They  help  us  in 
understanding  the  small  degree  of  favor  which  the  right  of  disposal 
by  will  met  with  in  the  Revolutionary  legislation,  and  certain  super- 
annuated provisions  of  the  Civil  Code  have  no  other  derivation. 
This  did  not  prevent  the  theorists  of  natural  law,  such  as  Grotius, 
following  the  example  of  the  Romans,  from  looking  upon  an  in- 
testate succession  as  the  will  of  a  person  who  had  not  made  one. 
On  this  point,  as  on  a  multitude  of  others,  they  took  the  opposite 
view  from  the  historic  truth.^ 

^  Variations  and  controversies  abound  in  the  history  of  the  law  of  succession; 
the  work  of  criticism  is  not  yet  sufficiently  far  advanced  for  one  to  be  able  to 
trace  its  design  from  the  origin  up  to  our  time  in  exact  and  certain  character- 
istics. We  are  not  attempting  to  conceal  from  ourselves  either  the  imper- 
fections or  the  gaps  in  the  outline  which  we  here  give.  One  will  onlj'  too  often 
find  in  it  the  reflection  of  the  uncertainties  that  are  presented  by  the  origin 
of  the  family  and  that  of  ownership;  for  the  system  of  succession  has  especially 
depended  upon  the  formation  of  the  family  and  the  organization  of  ownership. 

625 


§  451]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES   [Chap.  IV 


Topic  2.    Intestate  Succession.    Various  Kinds  of  Heirs 


§  451.  The  House  and  the  Lineage. 

§  452.  (I)  The  House. 

§  453.  (A)  Privilege  of  the  Male  Line. 

§  454.  (B)  The  Right  of  Primogeni- 
ture. 

§  455.  Lack  of  Representation. 

§  456.  (II)  Lineage  (Ascendants  and 
Collaterals) . 

§  457.  Succession  to  Personal  Be- 
longings. 

§  458.  Ascendants. 

§459.  Collaterals. 


§460.  The   Same.— (A)    Nearest    in 

§  461.  The  Same.  —  (B)  Privilege  of 
the  Double  Tie. 

§  462.  The  Same.  —  (C)  Representa- 
tion. 

§  463.  The  Same.  —  (D)  Devolution. 

§  464.  The  Surviving  Spouse.  —  (A) 
Countries  of  Written  Law. 

§  465.  The  Same.  —  (B)  Countries  of 
Customs. 

§  466.  Irregular  Successions. 

§  467.  The  Revolutionary  Law. 


§  451.  The  House  and  the  Lineage.^  —  The  French  law  in  its 
last  stages  distinguishes  between  three  kinds  of  heirs :  descendants, 
ascendants,  and  collaterals.  If  these  are  all  lacking,  then  the  in- 
heritance passes  to  the  surviving  spouse  and  to  the  Treasury.  But 
this  classification  of  heirs-at-law  is  borrowed  from  the  Roman  law; 
it  does  not  conform  with  the  old  Customary  law  and  with  the  law 
of  the  barbarian  period.  As  to  this  archaic  legislation,  in  which 
the  idea  of  presumed  affection  plays  no  part,  one  can  say  that 
the  right  of  inheriting  belongs:  1st.  Primarily,  to  those  who  form 
a  part  of  the  same  family  community,  that  is  to  say,  as  a  general 
rule,  only  to  the  descendants  of  the  deceased  (heirs  of  the  body) 
upon  the  condition  that  they  live  with  him.^    2d.  Secondarily,  to 

1  Cf.  Beaumanoir,  "Assises,"  etc.:  (a)  descent  in  the  direct  line;  (6)  escheat 
in  the  collateral  line:  "Const.  Chat.,"  p.  43;  Du  Cange,  see  "Escaeta";  Pol- 
lock and  Maitland,  I,  332. 

2  To  the  family  community  belohg  above  all  others  sons  and  daughters 
and  generally  descendants  of  the  head  of  the  house;  but  it  may  also  include 
his  mother,  his  wife,  his  sisters,  sometimes  even  the  sisters  of  his  father  or 
those  of  his  mother;  the  presence  of  brothers  or  uncles  in  it  is  rare,  for  most 
of  the  time  they  leave  the  paternal  house  in  order  to  establish  themselves 
elsewhere.  The  group  of  women  occupies  a  peculiar  position.  As  to  male 
descendants,  they  may  be  qualified  as  "  sui  heredes  "  in  the  Roman  sense;  in 
fact,  they  derive  their  right  of  succeeding  less  from  their  quality  of  relatives 
than  from  that  of  being  members  of  the  community.  This  is  so  true  that  they 
no  longer  inherit  if  they  have  been  emancipated  or  expelled  from  the  house, 
"foris  familiati";  that  certain  legislations  call  the  brothers  of  the  deceased  to 
the  inheritance  to  the  exclusion  of  his  sons,  —  no  doubt  because  these  brothers 
belonged,  at  least  in  the  old  times,  to  the  same  household  and  occupied  because 
of  their  age  a  higher  position  (Ottomans,  Irish  "tanistry";  post,  "Represen- 
tation"); again,  this  is  so  true  that  in  certain  legal  systems,  —  for  example, 
among  the  "  Burgundians,"  1,  24,  51  {cf.  India,  Hungary:  "N.  R.  H.,"  Ill,  445; 
parable  of  the  Prodigal  Son),  the  sons  have  a  right  to  demand  partition  of  the 
family  patrimony  during  the  lifetime  of  their  father:  Schroeder,  pp.  324,  326. 

626 


Topic  2]    INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS   [§  452 

his  lineage,  that  is  to  say,  to  his  ascendants  and  collaterals,^  to 
those  who  form  a  part  of  the  same  league  organized  for  mutual 
defense,  but  who  do  not  live  in  the  same  house.^  Such  is  the  ordi- 
nary system  of  succession  according  to  the  Germanic  and  Custom- 
ary law.^  But  its  application  was  often  impeded  by  the  feudal 
theories.  Thus,  the  succession  to  fiefs  was  not  freely  admitted 
from  the  very  beginning;  it  was  only  with  difficulty  that  descend- 
ants (other  than  sons)  or  collaterals  were  allowed  to  partake  of 
it;  ^  the  wishes  of  the  lord  imposed  special  rules  upon  it.  In  case 
of  lands  in  servile  tenure,  mortmain  was  for  a  long  time  a  great 
obstacle  to  the  right  of  the  family.  This  right  was  not  finally 
exercised  with  its  full  freedom  excepting  over  villein  tenures; 
moreover,  some  exceptions  must  be  made  to  this.^ 

§  452.  (I)  The  House. — The  (lawful)  Descendants^  of  the  deceased 
inherited  in  preference  to  all  other  relatives.  The  family  of  which 
he  was  the  head  was  perpetuated  by  them,  sometimes  by  forming 
a  more  extended  community  with  more  members,  sometimes  by 
being  divided  up  into  colonies  surrounding  the  homestead,  w^hich 
was  ordinarily  given  to  the  eldest  son.^  Equality  between  de- 
scendants of  all  ages  and  of  both  sexes, — such  could  be  the  formula 

^  It  is  not  without  difficulty  that  the  Hneage  has  come  to  be  preferred  to 
the  "vicini"  or  to  the  treasurer:  Edict  of  Chilperic,  "Fris.,"  19,  2;  Schroeder, 
p.  324;  Ficker,  II,  375;  Geffcken,  p.  270. 

2  C/.  the  part  played  by  the  family  in  private  vengeance,  or  the  payment  of 
the  "Wergeld"  and  its  rights  in  matters  of  succession:  i/ewsZer,  II,  522;  Brunner, 
"Sippe  u.  Werg.  Add.";  Gierke,  "Genossenschaftsr.,"  I  and  II. 

^  Right  of  succession  of  the  barbarian  period:  "Sal.,"  59  and  "Cap.  extr.," 
7;  "Rib.,"  56;  "Fr.  Cham.,"  42;  "Alam.,"  57,  95;  "Fris.,"  19;  "Sax.,"  41 
et  seq.;  "Thur.,"  26-34;  "Burg.,"  14;  24;  51;  53;  75;  78;  "Roth.,"  158,  181, 
etc.;  "Liut.,"  I,  65;  "Roth.,"  153;  "Qusest.  et  Monita,"  §  4  (SaHc  Law)  and 
§  31  (Lombard  Law) ;  "Tract,  de  Ord.  Success,  ab  int.  sec.  Jus.  Langobard." 
("M.G.  H.,  L.  L.,"  IV,  605). 

*  The  Constitution  of  Conrad  II,  1037,  for  Italy,  which  was  the  point  of 
departure  for  the  theories  of  succession  of  the  "L.  Feudorum,"  secured  the 
fief  to  the  posterity  of  the  vassal:  Heuslcr,  II,  613. 

^  Details  in  the  Commentaries  on  the  "Libri  Feudorum."  Numerous 
treatises  on  feudal  law,  cf.  Camus  and  Dripin,  "Tract,  jur.  univ.,"  X;  Struve, 
Rosenthal,  Goetzman,  Lilnig,  etc.;  Pfiser,  "Lehensfolge,"  1818;  Michaelis, 
"De  Ord.  succed.,"  1818;  Homeyer,  "Sachsensp.,"  II,  2,  444;  Heusler,  II, 
610;  Stobbe,  §  315;  Fertile,  §  131;  Brunneck,  "Z.  Gesch.  d.  Grundeig.  i.  Preus- 
sen,"  1895;  "Z.  S.  S.,  G.  A.,"  1898,  210;  Pollock  and  Maitland,  I,  228;  Glasson, 
VII,  463. 

^  See  Chapter  I,  Topic  XI,  §  169  ante.  See  especially  Lombard  and  Wisi- 
gothic  laws;  PertUe,  4,  65  (Italy);  Dahn,  "Westg.  St.,"  131;  Stobbe,  §  295; 
Schroeder,  302.  Succession  to  estates  of  intestate  bastards,  cf.  Beaumanoir,  18; 
"Glossaires"  and  "Repertoires"  ;  Loysel,  see  Table.  Treatises  upon  the 
Domain,  etc.:  Viollet,  844  (the  mother's  succession:  "Cout.  loc.  d'Arras," 
1744,  p.  196,  etc.);  Britz,  687;  Kovalewsky,  p.  219;  Chaiseirmrtin,  p.  413 
("ebcnburtig");  Thevenin,  "Textcs,"  no.  35a;  "Siete  Part.,"  Table,  see 
"Spurius." 

7  Cf.  the  "stock-family"  of  Lavedan:  "N.  R.  H.,"  1900,  601. 

027 


§  452]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

of  modem  law,  which  was  in  harmony  with  the  foundation  of  the 
modern  system  of  inheritance  and  with  the  idea  of  the  presumed 
affection  of  the  deceased.  The  old  law  is,  on  the  contrary,  a  sys- 
tem of  inequalities  and  privileges,  which  are  not  arbitrary,  as  is 
sometimes  said,  but  which  are  necessary  because  of  the  superior 
interest  of  the  family.  The  principal  ones  are,  (A)  privilege  of  the 
male  line,  (B)  right  of  primogeniture,  and  (C)  exclusion  of  the 
grandsons  (all  of  which  were  done  away  with  by  the  Revolution). 
§  453.  (A)  Privilege  of  the  Male  Line.  —  In  an  age  of  violence 
like  the  barbarian  period,  the  physical  weakness  of  women  had  the 
consequence  of  making  them  incapable  of  inheriting;  to  inherit 
was  a  privilege  (if  one  can  call  a  privilege  the  right  to  pay  with 
one's  blood),  for  those  who  fought  and  who  alone  were  fit,  with 
the  lance  or  the  sword,  to  protect  the  property  of  the  family.^  If 
women,  when  they  married,  passed  into  another  family,  they 
could  not  take  with  them  any  portion  of  the  paternal  patrimony, 
and,  as  the  ties  which  united  them  to  their  natural  family  were 
broken,  their  descendants  found  that  they  had  no  more  rights 
than  these  women.  —  Such  must  have  been  the  old  Germanic  law, 
at  least  under  the  system  of  the  patriarchal  family.^  Tacitus 
does  not  mention  the  succession  of  women.  Certain  barbarian 
laws,  like  the  one  called  that  of  the  Chamavian  Franks,  42,  and 
the  Law  of  the  Thuringians,  6,  refused  to  give  the  daughters  any 
right  over  the  land  as  well  as  over  the  domestic  animals  and  the 
slaves  which  should  naturally  have  belonged  to  them;  their  broth- 
ers excluded  them,  —  even,  according  to  this  latter  law,  the  family 
relatives  to  the  fifth  degree.  After  this  degree  was  passed  the  in- 
heritance fell  into  the  female  line.^  Women  were  left,  as  though 
by  a  kindness,  their  clothing  and  their  ornaments,  which  could  not 
be  of  any  use  to  the  men  ("rhedo,"  "gerade").'^    If  there  were  no 

'  Cf.  other  persons  under  a  disability,  —  the  infirm,  monks. 

^  Cf.  other  legislations:  Post,  I,  222;  Simon,  "La  Cite  Chinoise,"  p.  48 
(1891);  Paturet,  "Cond.  de  la  Femme  dans  I'anc.  Egypte";  Dareste,  pp.  62,  74, 
112,  227,  258,  273,  314.  It  was  Mahomet  who  introduced  the  succession  of 
women  among  the  Arabs.  About  1.50  years  ago,  despite  the  "Koran,"  the 
delegates  of  the  Kabyle  Confederations  pronounced  in  a  final  manner  the 
exclusion  of  women  from  successions:  Jobbe-Duval,  "These,"  p.  160  (1874); 
Lehr,  "Dr.  Civil  Russe,"  I,  393. 

3  "L.  Thuring.,"  6;  Heusler,  II,  604. 

*  There  are  certain  possessions  which  women  receive  in  preference  to  men 
because  these  possessions  can  only  be  used  by  them,  and  the  converse  is  true. 
From  this  there  arise  special  kinds  of  succession,  about  which,  however,  there 
is  hardly  any  question  excepting  in  Saxony:  Chaisemartin,  392.  —  (A)  "  Heerge- 
wate"  ("vestis  bellica").  The  armor  is  kept  for  the  nearest  male  agnate: 
"L.  Thur.,"  31;  "Sachsensp.,"  1,  27,  2;  22,  4.    This  was  extended  to  other 

628 


Topic  2]   INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS   [§  453 

male  descendants,  then  how  should  the  daughters  be  treated? 
Two  solutions  were  possible:  make  them  serve  to  re-establish  the 
male  line,  as  in  the  Athenian  custom  of  leaving  girls  as  heirs  in 
default  of  male  issue,^  or  the  "Erbtochter"  of  the  German  law;^ 
or  else  leave  them  out  of  the  succession  entirely.  Perhaps  it  was 
this  last  course  which  was  resorted  to  originally,  especially  in  the 
case  of  land,  so  as  to  leave  the  field  free  for  the  right  of  the  "  vicini," 
or  that  of  the  people  of  the  same  lineage.  But,  little  by  little,  the 
right  of  the  daughters  was  strengthened  against  the  others  as  a 
consequence  of  the  Roman  and  Christian  influence,  and,  again,  as 
a  consequence  of  the  disintegration  of  the  agnatic  family;  and,  as 
a  consequence  of  this,  the  maternal  relatives  took  part  in  the  suc- 
cession alongside  of  the  paternal  relatives.  It  is  at  this  stage  of 
evolution  that  the  Salic  Law  seems  to  have  arrived  in  its  Title  59, 
which  is  so  much  discussed,  and  where  the  question  of  succession 
"de  alodis"^  is  involved.  This  Title,  which  is  an  addition  to  the 
tariff  of  compositions  given  in  the  early  Custom,  had  as  its  exclu- 

objects,  —  for  example,  tools,  books:  "Preuss.  Landr.,"  2,  1,  523;  Grimm, 
682.  —  (B)  "  Gerade  "  (clothing  and  ornaments  used  by  women) .  The  daughter, 
and,  if  she  be  dead,  the  nearest  female  relative,  are  the  only  ones  who  have  a 
right  to  them:  "L.  Thur.,"  32,  38  ("rhedo");  "Burg.,"  51  (14,  6):  "mala 
hereda,"  meaning  "nuptialia  ornamenta."  According  to  Gaupp,  the  "materna 
hereditas"  of  the  ".L.  Franc.  Cham.,"  42,  was  nothing  more  than  the  "Gerade" : 
Heusler,  II,  577;  Froideveaux,  "LaLoi  ditedes  Fr.  Cham.,"  p.  135;  "Sachsensp.," 
I,  27.  Extension:  ibid.,  I,  5,  3;  III,  38,  5.  —  If  there  are  no  relatives  who  are 
qualified  to  take  them,  both  of  these  kinds  of  possessions  come  to  the  judge: 
"Sachsensp.,"  I,  28;  Heusler,  II,  617;  Stobbe,  V,  130;  Ficker,  1018.  —  In  ancient 
India  the  daughters  inherit  nothing  but  the  ornaments  and  clothing  of  their 
mother. 

1  Beauchet,  "Dr.  priv6  Athdn.,"  I,  398.  Dareste,  p.  26:  among  the  Hebrews, 
girls  who  are  heiresses  are  married  by  their  nearest  male  relatives,  in  order  to 
prevent  their  family  from  becoming  extinguished:  "Ruth"  iv,  "Numbers" 
xxxvi. 

^  Schroeder,  777. 

*  Tacitus,  "Germ.,"  20:  "sororum  filiis  idem  apud  avunculum  qui  apud 
patrem  honor.  Quidam  sanctiorem  arctioremque  hunc  nexura  sanguinis 
arbitrantur  et  in  accipiendis  obsidibus  magis  e.xigunt  .  .  .  Heredes  tamen  suc- 
cessoresque  sui  cinque  liberi,  fratres,  patruei,  avunculi."  "Sui  "  does  not  mean 
his  own  heirs.  "Liberi"  and  "fratres"  include  neither  the  daughters  nor  the 
Bisters.  As  to  the  paternal  and  maternal  uncles,  they  seem  to  be  placed  in  the 
eame  line:  Brunner,  I,  80;  Amirn,  "Erbenfolge,"  219;  Schroeder,  71.  Order 
in  the  "L.  Sal.,"  59:  mother,  brothers  and  sisters,  mother's  sister,  the  nearest 
maternal  relative  ("L.  Emend.":  father  and  mother,  brothers  and  sisters, 
father's  sister,  mother's  sister,  the  nearest  relatives  of  the  paternal  line). 
Cf.  "Sal.,"  44  (right  to  the  "reipus"):  eldest  son  of  the  sister,  eldest  son  of 
the  niece,  son  of  the  maternal  cousin,  uncle  who  is  the  mother's  brother. 
"Sal.,"  58  ("de  chrenecruda"):  father  and  brothers,  the  nearest  three  in  the 
maternal  line  and  the  nearest  three  in  the  paternal  line:  Geffcken,  p.  223  (bibl.); 
Heusler,  II,  524;  Dargun,  "Mutterrecht,"  pp.  60,  153;  Opet,  op.  ciL;  Amira, 
p.  25;  Brunner,  "Z.  S.  S.,  G.  A.,"  Ill,  41;  sec  also,  A.  del  Vecchio,  "Lo  zio 
Materno,"  1891;  Pollock  and  Maitla?ul,  II,  238;  Glasson,  III,  153. 

629 


§  453]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

sive  object  the  fixing  of  the  rights  of  inheritance  of  the  maternal 
relatives.  They  are  classed  in  the  following  order:  1st,  the  mother; 
2d,  the  brother  or  sister  born  of  the  same  mother;  3d,  the  sister 
of  the  mother;  4th,  the  nearest  maternal  relatives  after  the  former,^ 
It  is  quite  natural  to  assume  that  this  classification  was  borrowed 
from  that  of  the  paternal  relatives,  so  that  the  two  groups  of  heirs 
called  upon  to  divide  the  succession  would  be  symmetrical.  Noth- 
ing is  said  about  the  paternal  relatives  because  their  rights  were  not 
contested;  but  the  scribes  to  whom  we  owe  manuscripts  which 
give  a  more  recent  text  of  the  Salic  Law  thought  it  would  be  a  good 
thing  to  show  the  paternal  and  the  maternal  relatives  together 
(cf.  "lex  emendata").  They  limited  themselves  to  reserving  land 
for  the  paternal  line  ("virilis  sexus")  and  in  the  latter  to  the 
brothers  of  the  dead  (brother  of  the  whole  blood  or  brother  of  the 
same  blood):  "de  terra  viro  in  muliere  hereditas  non  pertinebit." 
Title  59  says  nothing  on  the  subject  of  the  daughters  of  the  de- 
ceased; it  assumes  that  the  latter  has  left  no  posterity  ("si  filios 
non  dimiserit");  everything  would  lead  one  to  believe  that  they 
were  excluded  by  their  brothers,  not  only  from  the  land,  but  even 
from  the  entire  succession,  with  the  exception  of  the  "ornamenta 
muliebria"  (cf.  "L.  Fr.  Cham.");  if  there  were  no  sons  the  daugh- 
ters undoubtedly  took  the  other  possessions,  but  not  the  land  (cf. 
"L.  Rib.  Thur.").  The  exclusion  of  women,  which  was  at  first 
absolute,  was  soon  restricted  to  that  which  was  later  on  called  the 

*  The  inferior  status  of  women,  which  was  commonly  admitted  until  quite 
recent  times,  has  just  been  brought  up  for  discussion  again,  —  especially  by 
the  partisans  of  the  matriarchate.  They  base  their  arguments  on  Titfe  59 
of  the  SaUc  Law  (Dargun,  Heusler,  Opet,  Ficker).  But  it  is  difficult  for  them 
to  explain  why  the  maternal  uncle  has  gradually  ceased  to  be  mentioned,  and 
why  the  brother  of  the  deceased  succeeds  with  his  sister;  it  is  also  singular 
that  we  do  not  find  the  matriarchate  in  the  order  of  succession  which  is  told 
of  by  Tacitus.  Among  the  Lombards  and  the  Visigoths  it  is  well  established 
that  the  right  of  women  progressed  by  becoming  better  developed.  In  the 
Visigothic  law  especially  the  equahty  of  the  sexes  is  of  recent  date  (which 
weakens  M.  Glasson's  recent  remark  that  the  oldest  barbarian  laws  treat 
women  better  than  the  more  modern  ones):  Code  of  Euric,  320;  "Wis.," 
4,  2,  1,  9;  Zeumer,  "N.  Arch.,"  26.  Preference  of  males  in  the  Anglo-Saxon 
law  and  in  the  "gavelkind"  of  Kent:  Pollock  and  Maitland,  II,  258.  The 
interpretation  of  Title  59  of  the  Salic  Law  which  we  borrow  from  Brunner, 
"Z.  S.  S.,"  1900,  "G.  A.,"  1,  is  ingenious,  but  rather  on  the  order  of  guesswork, 
and  is  open  to  a  serious  objection:  why  grant  a  privilege  to  the  father's  sister 
and  to  the  mother's  sister?  "Rib.,"  56.  Perhaps  because  they  have  not 
left  the  house,  whereas  the  brothers  have  gone  away  from  it.  Cf.  the  Lombard 
law.  But  this  should  have  been  specified.  Let  us  observe  that  the  Customary 
law  sometimes  grants  the  daughters  privileges  in  the  succession  or  in  the  mar- 
riage portion  of  their  mother:  Pertile,  IV,  §  126  (succession  of  women).  Cf. 
"L.  Fr.  Cham.,"  42;  Froideveaux,  p.  135  (various  interpretations);  Law  of 
Burchard  of  Worms,  c.  10  (in  1024). 

630 


Topic  2]   INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS   [§453 

personal  belongings  of  the  succession  as  contrasted  with  the  ac- 
quests of  immovables.^  Also,  while  the  older  text  of  the  Salic  Law 
only  contained  the  word  "terra"  by  itself,  we  read  in  the  later 
texts  "terra  salica,"  an  expression  the  original  meaning  of  which  is 
very  doubtful,'^  but  which  certainly  in  the  seventh  and  eight  cen- 
turies is  synonymous  with  "terra  aviatica"  (land  of  the  ancestors, 
"avi"),  as  is  said  in  the  law  of  the  Kipuarians,  56,  4,  in  a  provision 
which  corresponds  to  that  of  the  Salic  Law,  and  which  may  be  con- 
sidered as  the  official  interpretation  of  the  latter,  —  at  least  as 
applying  to  the  period  of  its  redaction.  Finally,  the  Edict  of 
Chilperic,  in  596,  decided  that  daughters  should  inherit  the  land 
if  there  were  no  sons,  sisters  if  there  were  no  brothers,  in  such  a 
way  as  to  exclude  the  "vicini,"  and  also  undoubtedly  the  more 
distant  collaterals.^ 

*  According  to  Heusler,  II,  578,  the  privilege  of  the  male  line  was  extended 
in  Saxony  and  was  appUed  even  to  acquests  and  cattle,  and  to  agricultural 
implements  as  being  accessories  to  the  land.  In  the  South  of  Germany,  on 
the  other  hand,  the  principle  of  the  equality  of  the  sexes  was  admitted,  ex- 
cepting in  the  case  of  the  "Ansedel,"  "Hantgemal."  Thus  among  the  Ala- 
mans  ("Schwabensp.,"  128,  148a);  in  time  the  privilege  of  males  over  the 
dwelling  house  became  a  right  of  primogeniture  or  a  household  right  ("  Berne," 
1614,  2,  12,  6).  On  the  "Handgemalgut,"  cf.  Heusler,  I,  232.  "Handgemal" 
means  "Hand  Zeichen"  (manual  sign,  "chirographum"),  and  "Stammgut," 
Schroeder,  432. 

2  Outline  and  bibl.  in  Geffcken,  p.  226:  Du  Cange,  see  "Fusus."  Various 
opinions:  1st.  "Terra  salica,"  just  as  one  says  "lex  saUca,"  has  the  same  mean- 
ing as  "terra"  in  general.  The  Edict  of  Chilperic  says  "terra,"  and  nothing 
more:  Dares^e,  p.  411;  "Roisin,"  p.  6.  —  2d.  Salic  land  means  "terra  aviatica." 
—  3d.  House  and  enclosure,  something  like  the  manor  and  the  homestead  of 
feudal  times,  —  that  island  of  individual  ownership  pointed  out  by  Tacitus 
in  his  description  of  a  system  of  collective  ownership.  "Sala"  means  house: 
"Alam.,"  81,  1;  "Sal.,"  16,  2  ("salina");  "Dipl.,"  II,  284,  333.  Eccard  in  his 
"Coram,  s.  L.  Sal.,"  cites  a  Florentine  commentary  according  to  which  the 
Salic  Law  or  "selilant"  was  that  "qua;  ad  salam  sivedomumcurtispertinet": 
Gucrard,  "Polypt.  d'Irminon,"  p.  483.  In  the  ninth  century,  in  the  region 
of  the  Rhine,  the  seigniorial  manse  as  contrasted  with  the  tributary  manses 
is  called  Salic  land.  Cf.  Viollet,  p.  824  (bibl.);  Glasson,  III,  149;  Stobbe,  V, 
88;  Heusler,  II,  576  (cf.  "  Hantgemal  ").  —  The  problem  has  become  a  compli- 
cated one  for  recent  authors  because  they  have  connected  it  with  the  obscure 
question  of  the  formation  of  the  ownership  of  land  following  the  invasions. 
Cf.  on  this  subject:  Meitzen,  "Siedelung  u.  Agrarwesen  d.  West,  und  Ostger- 
manen,"  1895.  Sohm  compares  the  "terra  salica"  to  the  Anglo-Saxon  folk- 
land;  on  the  other  hand,  for  Schroeder,  p.  212,  this  is  the  land  which  is  acquired 
by  virtue  of  a  "pra3ceptum  regis,"  whether  the  king  made  a  gift  of  part  of  the 
crown's  domain  or  whether  he  gave  permission  for  the  occupation  of  unoccu- 
pied lands;  this  would  also  be  the  nobleman's  property,  "ethel,"  "odal," 
which  was  granted  to  the  Germanic  princes  in  the  same  way  as  the  conferring 
of  an  office,  and  which  soon  became  hereditary;  these  Salic  lands  are  contrasted 
with  the  "Hufe"  ("Hof")  or  "sors"  ("los,"  "hlot"),  with  the  portions  of 
land  coming  from  the  community  of  the  village  and  reverting  back  to  this 
community.  Cf.  Heusler,  II,  525,  575.  On  the  Norwegian  "odal"  (personal 
belonging)  cf.  "Z.  S.  S.,"  1901,  "G.  A.,"  109. 

'  If  there  were  no  sisters,  did  the  right  of  the  "vicini"  still  continue  to 

631 


§  453]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

But  the  principle  of  the  inequahty  of  tlie  sexes  was  not'  abol- 
ished in  the  PVankish  law.^  The  father  was  only  authorized  to  do 
away  with  this  principle  by  calling  back  to  the  succession  the 
daughters;  it  depended  upon  him  whether  they  should  compete 
with  the  sons.  A  celebrated  formula  of  IMarculfe,  II,  12,  shows 
that  the  inspiration  in  this  was  taken  from  the  Christian  and 
Roman  ideas;  the  father  gives  the  same  rights  to  his  sons  and  his 
daughters  as  regards  his  inheritance,  contrary  to  that  which  he 
calls  the  "impious  old  custom":^  "Sicut  mihi  a  Deo  sequaliter 
donati  estis,  ita  et  a  me  sitis  sequaliter  diligendi  et  de  res  meas 
sequaliter  gratuletis  tam  de  alode  paterno  quam  de  comparatum 
vel  mancipia."  ^ 

In  the  next  stage,  the  feudal  system  ^  was  opposed  to  the  suc- 
cession of  women  because  they  were  incapable  of  rendering  the 
military  and  court  services  connected  with  the  possession  of  a  fief.^ 
But  the  principle  of  the  inheritability  of  fiefs  led  to  the  trans- 
mission of  these  possessions  in  the  same  way  as  others.  Women 
could  aspire  to  them  on  condition  of  rendering  the  feudal  services 
by  means  of  a  representative,  and,  as  their  most  natural  repre- 
sentatives were  their  husbands,  from  this  there  developed  a  right 
for  the  lord  to  impose  a  marriage  upon  his  female  vassal  until  she 
attained  sixty  years.  However,  on  this  point  the  feudal  deeds 
and  the  Customs  were  divided:  sometimes  they  admitted  the 
succession  of  women  (or  of  cognates)  (feminine  fiefs),  sometime 
it  was  rejected  (masculine  fiefs)  in  order  to  allow  only  the  males 
(or  the  agnates)  to  inherit.    As  a  general  thing,  women  only  took 

exist?  The  Edict  is  silent.  The  end  of  its  §  3  seems  to  contemplate  acquests 
to  which  the  "vicini"  could  lay  no  claim:  cf.  title  45,  "L.  Sal.,"  "de  migr."; 
Geffcken,  p.  270  (bibl.);  Gierke,  op.  cit.;  Meitzen,  I,  588;  Chaisemartin,  412. 

1  The  sons  who  took  the  succession  were  charged  with  the  nourishing  and 
support  of  their  sisters,  if  they  did  not  marry;  if  they  did  marry,  the  sons  had 
to  furnish  them  with  the  customary  marriage  portion. 

*  The  "  Sachsenspiegel "  was  condemned  by  the  papacy  because  of  its 
exclusion  of  daughters.  CJ.  as  to  the  Roman  law:  "Petrus,"  I,  6;  "Ass.  de 
J6r.,"  I,  275,  ed.  V. 

3  Pasquier,  "Inst.,"  p.  512. 

*  "L.  Feud.,"  1,  1,  3,  8:  "filia  non  succedit  in  feudonisi  investitura  fuerit 
ut  fiUi  et  fihaj  succedant."  Thus  there  resulted  a  particular  system  for  each 
fief  until  a  common  law  came  to  be  established.  Cf.  French  entails,  especially 
fee  tails  in  England:  "Summa  Norm.,"  25;  Littleton,  IS.  In  the  latter  country 
in  1100  there  was  absolutely  no  doubt  that  women  could  succeed  to  fiefs  held 
by  military  tenure:  Pollock  and  Maitland,  II,  260.  In  France,  cf.  Beaurnanoir, 
14;  "Jostice,"  12,  7,  3;  Durand,  "Spec,"  p.  311;  "Const.  Chat.,"  68,  75; 
"Cout.  Not.,"  71;  "Gr.  Cout.,"  p.  290;  "T.  A.  C,  Bret.,"  232;  Loysel,  634; 
Pothier,  VIII,  100.  —  Cf.  Venice,  Statute,  4,  25;  "Const.  Sic,"  II,  26. 

'  Cf.,  however,  ladies  who  held  fiefs  sitting  in  feudal  courts,  daughters  or 
widows  taking  part  in  the  pohtical  assemblies:  Loysel,  608;  Beaurnanoir,  41,  27. 

632 


Topic  2]    INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS   [§  453 

if  there  were  no  males  of  the  same  degree.^  "If  there  were  a  son 
only  a  day  old  and  there  were  forty  daughters,"  says  Philip  of 
Navarre,  69,  "  they  would  have  no  right,  for  a  daughter  cannot  be 
the  lawful  heir  before  a  son."  On  the  other  hand,  in  the  case  of 
possessions  of  people  who  were  not  nobles  the  principle  which 
prevailed  in  the  Customary  law  was  that  of  equality  between  men 
and  women. ^ 

In  many  places,  however,  the  privilege  of  the  males  subsisted 
in  the  form  of  excluding  from  the  inheritance  daughters  endowed 
in  marriage.^  The  mere  departure  from  the  family  was  originally 
sufficient  to  make  them  lose  every  right  of  inheritance,  whether  they 
were  endowed  or  not;  when  it  no  longer  had  this  effect,  they  were 
looked  upon  as  being  sufficiently  provided  for  when  they  received 
the  marriage  portion.  Sometimes  the  exclusion  took  place  as 
matter  of  law,  sometimes  it  resulted  from  a  clause  of  renunciation 
of  succession  inserted  in  the  marriage  contract.^  Sometimes  the 
Custom  compelled  them  to  be  contented  with  a  chaplet  of  roses  '° 
as  their  entire  marriage  portion;  sometimes  the  marriage  portion 
had  to  be  a  proper  one  ("marriage  in  conformity"  in  Normandy). 
Finally,  the  marriage  portion  is  designated  under  the  name  of 
the  legal  share,  in  localities  where  the  loss  of  the  rights  of  inherit- 
ance is  made  subordinate  to  the  receiving  of  the  entire  legal  share.^ 

1  Loysel,  634  et  seq.  Foreclosure  of  descendants  (whether  males  or  not) 
by  the  women:  Beaumanoir,  14,  28;  "Cout.  Not.,"  71;  Loysel,  325;  Blackstone, 
II,  14. 

2  "Summa  Norm.,"  24;  Beaumanoir,  14,  11.  Contra,  Alsatian  "colonges." 
In  certain  places  there  was  a  right  of  preference  for  males  among  nobles, 
affecting  common  tenures  as  well  as  fiefs:  Glasson,  VII,  467. 

'  It  was  a  Roman  custom  to  bequeath  the  marriage  portion  to  the  daughter 
while  disinheriting  her:  Dig.,  34,  1,  10,  2;  33,  5,  21;  Esmein,  "N.  R.  H.,"  8,  4. 
Exclusion  of  daughters  who  had  had  a  marriage  portion  in  the  Lombard  laws: 
"Roth.,"  181;  "Liut.,"  Ill,  102  (cf.  daughters  "in  capillo,"  with  their  hair 
hanging  down,  —  a  distinctive  sign  of  the  unmarried  woman,  and  daughters 
"in  casa,"  who  had  not  left  the  house);  Fertile,  IV,  51;  in  the  Italian  statutes, 
with  the  effect  of  keeping  the  property  in  the  family.  See  La  Mantia,  "Storia 
d.  Legislaz.  Ital.,"  I,  242  et  seq.;  Fertile,  IV,  56,  62;  Briinneck,  p.  83;  Viollet, 
p.  826;  and  in  the  Customs  of  the  South  of  France:  "Montpellier,"  90;  "Mar- 
seille," II,  54  {ed.  Fresquet);  "Giraud,"  II,  248;  "Bergerac,"  55;  Gide,  p.  441; 
Tardif,  p.  60.  Cf.  De  Ribhe,  op.  cit.,  p.  1003.  —  As  to  the  Customs  of  the  North, 
cf.  "Touraine,"  284.  Fosl,  "  Inconsistency  of  the  (Quality  of  Heir  and  Donee." 
—  "N.  R.  H.,"  1877,  22;  Chaisemartin,  S90;  De  Maulde,  "Proces  politiques 
sous  Louis  XII,"  1885  (unpublished  documents):  rights  of  Anne  of  France. 

*  Loysel,  341;  Fasquier,  "Inst.,"  p.  509.  These  renunciations  should  have 
been  cancelled  according  to  the  Roman  law,  because  they  affected  future 
successions;  but  cf.  as  to  this,  Sexte,  1,  18,  2;  Gui  Fape,  "Quest.,"  227;  Meynial, 
"N.  R.  H.,"  1901. 

*  Ragueau,  see  "Chapel,"  "Serpol"  (trousseau);  Laboulaye,  407. 

*  Loysel,  639:  "The  king  must  i^rovide  marriages  for  his  sisters  and  daugh- 
ters."    "Honeste  dotare"  say  the  Italian  statutes.    Cf.  a  fitting  marriage  in 

633 


§  453]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

The  idea  of  the  physical  weakness  of  women  had  long  ceased 
to  be  sufficient  to  account  for  their  incapacity  of  inheriting 
(legal  or  by  agreement);  public  order,  which  was  better  as- 
sured owing  to  the  more  active  part  played  by  the  State,  pro- 
tected women  from  violence.  Other  motives  accounted  for  the 
inferiority  of  their  condition.  The  expressed  or  implied  clauses 
in  the  contract  of  infeudation  were  often  the  foundation  of  this 
inferiority;  and,  finally,  the  desire  to  prevent  the  parceling  of  the 
family  inheritance  acted  very  strongly  in  this  direction.^  Daugh- 
ters and  younger  sons  were  sacrificed  to  the  elder,  not  in  the  per- 
sonal interest  of  the  latter,  but  in  the  interest  of  the  family.  It  is 
true  that  the  right  of  primogeniture  could  have  been  granted  to 
daughters;  if  it  was  refused  them  in  order  to  be  reserved  for  the 
men,  it  was  because  when  they  married  they  ceased  to  represent 
the  family  and  took  a  new  name;  it  was  also  because  under  vari- 
ous circumstances  it  is  difficult,  or  even  impossible,  for  a  woman 
to  carry  on  the  role  of  the  head  of  the  family.^ 

§  454.  (B)  The  Right  of  Primogeniture,  frequently  found  in  the 
old  legislations,  where  it  is  connected  with  religious  ideas  and  the 
worship  of  ancestors,  with  which  the  "child  of  duty"  is  especially 
charged,  and  which  is  mentioned  in  the  Bible  where  Esau  gives  it 
up  to  Jacob,  "Genesis,"  xxv,  is  barely  noticed  in  Tacitus,  "Germ.," 
with  relation  to  only  one  of  the  tribes  of  Germania,  the  Tencteres, 
and  does  not  figure  at  all  in  the  barbarian  laws  (any  more  than  it 
figured  in  the  Roman  laws).^  One  would  have  expected  to  see  it 
there;  with  equal  partition  the  house  is  not  stable  and  is  divided  up 
in  each  generation.  But  perhaps  this  is  only  in  appearance  because 
the  sons  of  the  deceased  often  live  in  joint  possession.  Family  com- 
munities make  up  for  the  absence  of  primogeniture;  ^  they  are 

Normandy:  "T.  A.  C,  Norm.,"  80;  "Summa,"  24, 14;  Le  Poittevin,  "N.  R.  H.," 
1889;  Fertile,  IV,  60.  In  Corsica,  in  1571,  I,  43:  arbitration  with  three  near 
relatives.  Elsewhere  it  is  the  legal  share  that  must  be  paid  them.  As  to  widows 
cf.  herein  "Second  Marriages";  Fertile,  IV,  62;  post,  "Marriage  Contract": 
in  countries  of  customs,  "No  one  has  a  marriage  portion  who  does  not  wish  it," 
whereas  in  countries  of  written  law  there  exists  an  obligation  to  furnish  a 
marriage  portion. 

1  This  motive,  which  is  found  at  an  early  period  in  the  documents,  has 
long  maintained  the  inferiority  of  women  in  the  matter  of  succession,  even 
in  countries  where  the  effects  of  the  Roman  law  have  been  felt  the  most,  — 
for  example,  in  Italy.  In  Sweden,  where  Birger  Jarl  called  women  to  the  suc- 
cession in  1262,  to  the  extent  of  one-third  of  the  inheritance,  the  equahty  of 
the  sexes  was  only  proclaimed  in  1845. 

2  Loysel,  Table,  see  "Femmes";  Benumanoir,  "Jost.,"  id. 

»  Cf.  "Sal.,"  43;  "Cap.  extr.,"  7;  "Div.  imperii,"  817.    Succession  to  the 
throne  of  Lothaire  in  954:  Loysel,  328.  — C/.  "Alam.,"  91;  "Bai.,"  1,  1;  15,  9. 
*  "Roth.,"  167;  "Liut.,"  70;  Capitulary  of  818,  6,  11;  of  825,  6  (I,  282, 

634 


Topic  2]    INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS    [§  454 

preparing  for  it;  in  fact,  the  brothers  have  the  eldest  among  them 
as  their  natural  head;  they  Uve  "sub  seniore  fratre."  ^ 

With  the  feudal  system  the  right  of  primogeniture  finally  ap- 
pears.^ 1st.  Originally,  it  is  established  in  the  interest  of  the 
lord.  The  fief  is  indivisible  because  the  rendering  of  feudal  serv- 
ices, and  especially  the  military  services,  would  have  been  affected 
had  there  been  a  partition.^  The  fief  is  granted  to  the  eldest  be- 
cause he  has  that  natural  superiority  over  his  brothers  which  is 
given  him  by  age  and  experience,  because  he  has  been  associated 

330).  As  to  the  "Gemeinderschaften,"  "Ganerbschaften,"  "  Genossenschaf- 
ten,"  c/.  post,  "Legal  Persons";  Heusler,  I,  51;  Brunner,  I,  70;  Schroeder,  326; 
Frommhold,  11;  Huber,  "  Gemeindersch.  d.  Schweitz,"  1897  ("Unters."  by 
Gierke);  Pollock  and  Maitland,  II,  260;  Maitland,  "Domesday  Book,"  145. 
Example  of  Thanes  holding  the  land  in  common  with  one  of  them  as  "senior" 
(although  there  is  no  right  of  primogeniture).  These  tenures  recall  the  par- 
tition of  the  Norman  and  Angevin  law.  Contra,  see  Guilhiermoz,  pp.  204, 
205,  who  wishes  to  connect  "parage"  with  "patrem";  which  would  be  very 
difficult,  as  we  see  it,  because  "patrem"  has  given  us  the  word  "pere"  (father), 
while  "paratre"  is  a  scientific  word.  In  the  same  way  the  Provengal  "par- 
atge"  cannot  be  derived  from  "paire,"  but  comes  from  "par,"  meaning  equal. 
"N  holds  from  a  lord  *en  parage,' "  seems  to  us  to  mean  that  N  holds  his  land 
from  such  and  such  a  lord  upon  condition  that  there  shall  be  equality  of  lineage 
among  his  sons.  Communities  are  even  found  in  the  South  (Roussillon,  Guy- 
enne,  Provence).  Cf.A.de  Brandt,  p.  40;  "Z.S.  S.,"  1901,  "G.A.,"  373;  Ver- 
delot,  p.  28. 

1  Feudal  primogeniture,  just  as  elsewhere,  the  commoner's  right  of  younger 
sons,  would  thus  seem  to  have  very  important  precedents  in  the  family  com- 
munity ("Hausgenossenschaft,"  "Were,"  or  group  of  relatives  living  together). 
Cf.  post,  "Anerbenrecht,"  indivisibility  of  commoners'  tenures  (see  note  4, 
"  Anerbenrecht,"  page  637  );  Dultzig,  68,  108, 117;  Brentano,  "Zukunft,"  1895, 
444;  Pick,  "Bauerl.  Erbfolge,"  1895;  Brandt,  p.  64;  post,  "Countries  of  Writ- 
ten Law";  Sumner  Maine,  "Inst,  primit.,"  p.  123  (gavelkind),  154;  Dareste, 
"N.  Et.,"  286,  297,  304. 

2  The  right  of  primogeniture,  so  to  speak,  preceded  the  heritability  of 
fiefs,  for  the  grantor  at  the  death  of  the  vassal  frequently  renewed  the  grant 
for  the  benefit  of  the  elder  son  of  the  latter.  Once  fiefs  became  hereditary, 
a  period  of  uncertainty  and  hesitation  was  reached,  which  was  escaped  from 
more  or  less  quickly  according  to  locality.  The  Breton  Assize  of  1185  is  one 
of  the  first  legislative  acts  upon  this  matter,  and  it  must  have  been  preceded 
by  an  Anglo-Norman  law  of  Henry  II,  which  has  not  come  dow^l  to  us,  but 
which  must  have  prohibited  the  partition  of  baronies  and  fiefs  of  the  hauberk, 
at  least  among  males:  "L.  Henrici,"  I,  70,  21;  Glanville,  7;  Braclon,  fo.  64; 
"T.  A.  C,  Norm.,"  8,  83;  "Summa,"  23  et  seq.,  99;  "Cout.  de  1.583,"  335; 
Planiol,  "N.  R.JI.,"  1887,  145;  Pollock  and  Maitland,  II,  258;  Guilhiermoz, 
p.  214.  If  there  were  several  fiefs  the  eldest  son  only  took  one  of  them.  The 
indivisibility  of  fiefs  was  still  more  necessary  for  the  Normans,  established  in 
a  hostile  country,  or  for  the  Crusaders  in  Palestine:  Ph.  de  Nav.,  69,  71;  J. 
d'Ibelin,  68,  148,  156,  182.  To  tenure  by  descent  and  the  system  of  homage 
to  the  eldest  (applied  in  the  Duchy  of  Normandy,  cf.  Guilhiermoz,  p.  202) 
should  be  likened  the  joint  lords'  domain  of  the  South:  Dognon,  "Inst,  du 
Languedoc,"  p.  16,  the  Catalonian  system:  "  Usat.  Barchin.,"  31,  the  German 
system  derived  from  the  Law  of  Conrad  the  Salic,  1037:  "Sachsensp.,"  Lehr, 
29,  2,  and  the  "L.  Feud.,"  1,  2;  4,  1.  Cf.  Glasson,  VII,  430;  "N.  R.  H.,"  1885; 
Heusler,  II,  614  ("Gesammtbelehnung");  Loysel,  611,  638;  Schroeder,  401, 
409. 

*  As  to  the  dismembering  of  the  fief,  cf.  Guilhiermoz,  p.  195. 

635 


§  454]  INTESTATE  SUCCESSION,  GRATUITOUS  CON\'EYANCES  [Chap.  IV 

I:-' 

with  his  father  —  at  least,  in  fact  —  in  the  carrying  out  of  feudal 
duties  longer  than  his  brothers,  because  it  is  to  the  interest  of  the 
lord  to  maintain  this  situation,  and  because  at  the  same  time 
transmission  by  inheritance  takes  place  to  his  advantage  more 
readily.  On  the  other  hand,  in  the  succession  to  rural  tenures, 
reasons  of  a  different  kind  often  caused  the  youngest  son  to  be 
preferred  (minority,  youth,  belonging  to  the  household).-^  2d.  The 
indivisibility  of  large  fiefs  and  of  important  manors  had  a  political 
reason;  they  were  small  States  whose  parceling  would  have 
caused  many  difficulties;  the  administration  of  justice  and  sov- 
ereignty cannot  be  divided.  3d.  In  the  last  stages  of  the  law, 
neither  the  interest  of  the  lord  nor  political  interest  are  brought 
into  play,  because  the  feudal  military  service  has  come  to  an  end 
and  centralization  has  taken  away  all  independence  from  the 
manors;  ^  the  right  of  primogeniture  still  persists  in  the  interest  of 
the  family.  And,  since  at  the  period  when  it  was  established  the 
old  constitution  of  the  family  was  weakened  in  many  places,  it 
scarcely  had  that  absolute  and  severe  character  which  one  is  only 
too  liable  to  attribute  to  it.  Each  of  the  foundations  which  it  had 
had  was  found  to  be  undermined  with  such  rapidity  as  not  to  have 
been  capable  of  producing  its  full  effects  for  any  length  of  time. 

1  Ultimogeniture.  —  1st.  In  a  system  of  collective  ownership  the  elder  sons 
have  a  share  and  a  separate  hearth ;  only  the  youngest  son  lives  and  works  with 
his  father;  he  is  near  him  at  the  time  of  his  death  and  becomes  the  guardian 
of  the  hearth,  —  a  very  important  role  in  the  Animist  Religion  (gallowa 
puppets  made  out  of  mandrake  roots  gathered  under  a  gibbet  and  given  as  a 
sort  of  domestic  god  to  the  younger  son,  reservation  of  the  hearth  itself 
to  the  youngest  son  of  all  in  the  gavelkind  of  Kent,  legend  of  "Hop  o'  my 
Thumb").  —  2d.  The  youngest  of  the  sons  keeps  the  paternal  house  because 
he  has  not  been  able  to  create  a  separate  establishment  for  himself;  he  has  a 
greater  need  for  it,  and  it  is  a  just  compensation  for  his  work,  —  3d.  The 
eldest  son  is  often  a  rival  of  his  father,  wiio  has  become  old;  it  is  not  the  same 
with  the  Benjamin,  upon  whom  the  father  lavishes  liis  affection.  —  Brittany 
("quevaize,"  meaning  right  of  the  youngest  child):  B.  de  Richebourg,  4412; 
Furic,  "Usem.  de  Cornouaille,"  1644,  p.  61.  England:  Hoel  the  Good,  "C. 
Ven.,"  I,  16;  borough  English,  Year  Book,  1,  Edw.  Ill,  f.  12  (in  1327).  Artois, 
Picardy,  Hainaut,  Brabant,  Friesland,  Westphalia,  Alsace,  Switzerland,  etc.  In 
ancient  India  and  in  the  Caucasus  it  co-exists  with  the  right  o'f  primogeniture, 
and,  a  still  stranger  thing,  it  does  not  exclude  a  privilege  for  the  benefit  of  the 
brothers  coming  between  them;  it  is  true  that  Gautama  does  not  take  this 
last  verj^  seriously:  "Let  the  middle  brother,"  says  he,  "receive  besides  a  share 
equal  to  that  of  the  others  some  old  beast  of  burden  with  only  one  eye  and  with  a 
horn  or  a  tail  missing":  Ernouf,  "France  judic,"  1882-83,  1,  p.  313  (according 
to  Elton);  Pollock  and  Maitland,  II,  277;  Kovalewsky,  p.  224;  Grimm,  p.  475; 
HexisUr,  II,  579;  Huher,  IV,  559;  Stohhe,  §  283,  321;  Schroeder,  p.' 736;  Viollet, 
p.  724,  n.  1;  842;  Bonvalot,  "Dr.  de  juv.,"  1901;  Post,  I,  223;  II,' 188;  Dareste, 
273;  "N.  Et.,"  271;  Michelet,  59;  Bntz,  669;  Glasson,  VII,  498;\DuUzig,  111; 
Chaisemnrtin,  p.  446;  see  Ragueau. 

*  In  the  eighteenth  century  it  is  still  said  that  the  baronies  are  indivisible. 

636 


Topic  2]    INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS    [§  454 

The  eldest,  instead  of  takins;  the  entire  fief,  is  charged  with  the  en- 
dowment of  the  younger  children  and  the  giving  of  a  marriage  por- 
tion to  the  daughters,^  and  no  longer  has  anything  but  a  reference 
legacy  and  a  share  for  his  profit:  the  principal  manor  and  the 
homestead  as  a  reference  legacy,  and  two-thirds  or  one-half  of  the 
fief  by  way  of  share  to  his  profit.^  The  dividing  up  of  the  fief 
could  only  be  avoided  with  the  assistance  of  entails  in  trust. 
From  the  thirteenth  century  the  right  of  primogeniture  is  found  to 
be  very  much  restricted:  there  is  no  right  of  primogeniture  among 
the  daughters  ^  or  the  next  in  the  collateral  line,  nor  is  there  any 
with  respect  to  plebeian  possessions.^  Already  it  has  become  only 
an  exception;  equal  partition  is  the  rule,  following  the  custom  of 
the  Roman  law.^ 

1  Springfeldius,  " de  apanagio, "  1663;  see  "Dig.  Ital.,"  Maffert,  "These," 
l^QQ.  —  D' Argentre,  "Advis  s.  le  Part,  des  Nobles,"  1570. 

2  "Paris,"  13;  "Orleans,"  89;  "Touraine,"  260;  Glasson,  Guilhiermoz,  op. 
cit.;  "Confer,  des  Cout.  de  Guenois,"  pp.  183  and  700;  Ferricre,  on  "Paris,"  13 
et  seq.  Besides  the  texts  that  are  cited  therein,  cf.  "A.  C,  Bord.,"  57;  "Ver- 
mandois,"  ed.  B.-B.,  161,  168;  "A.  C,  Anjou  et  Maine,"  id.,  Table;  "A.  C, 
Bourgogne,"  in  Giraud,  II,  pp.  296,  272. 

3  "T.  A.  C,  Norm.,"  9.    Contra:  Ponthieu,  Lavedan,  etc.    Cf.  Iivein,  7715. 
*  Beaumanoir,  14;  "T.  A.  C,  Norm.,"  8;  "Bourg.,"  etc.:  even  for  fiefs:  cf. 

gavelkind  of  Kent,  —  an  old  custom  whose  keeping  up  and  development  are 
to  be  accounted  for  by  the  commercial  prosperity  of  this  county:  Pollock 
and  Maitland,  I,  165;  II,  269  (bibl.).  —  However,  according  to  some  of  the 
Customs,  plebeian  tenures  belonging  to  a  noble  are  partitioned  in  the  same  way 
as  noblemen's  tenures.  The  indivisibility  of  plebeian  tenures  has  also  been 
established  in  the  interest  of  the  family  or  has  continued  to  exist  as  a  relic  of 
the  family  community:  Viollet,  840,  841  (primogeniture  in  Normandy) ;  Glasson, 
VII,  419,  470;  "Bareges,"  1;  Soule,  27;  Labourt,  12;  Merlin,  "Rapports," 
21;  Nov.,  1790;  Sagnac,  p.  218.  —  Germany,  system  of  the  "  Anerbenrecht": 
Stobbe,  §  322  (V,  3S.2);  Heuslcr,  II,  616;  Blondel,  "Et.  sur  les  popul.  rurales  de 
I'Allem.,"  p.  IQl  ■,Verdelot,  "These,"  1899;  £/.  v.  Dulzig,  "Deutsch.  Grunderbr.," 
1899  (bibl.);  ("Z.S.S.,"  1900,  "G.A.,"279);  Frommhold,  op.  cit.,  and'' Ancrh.," 
1886.  L.  Brentano,  and  after  him  Pick,  op.  cit.,  see  in  the  "Anerbenrecht"  a 
seigniorial  institution  and  connect  it  with  the  "Hofrecht."  But  this  theory 
is  contested  by  the  majority  of  legal  historians,  who  make  the  "Anerbenrecht" 
a  consequence  of  the  family  community;  from  this  would  have  sprung  the 
estates  in  tail  and  estates  to  youngest  sons,  appanages,  recompenses  or  "Ab- 
findungen"  owed  by  the  "Anerbe"  —  who  takes  the  whole  of  the  inheritance 
—  to  his  brothers,  and  marriages  or  marriage  portions  to  the  daughters,  unless 
they  be  excluded  from  the  paternal  house  because  of  the  dower  which  they  ac- 
quire when  they  marry:  Stobbe,  §  324  (bibl.  on  the  "  Abfind"),  290;  Boissonnade, 
"Anc.  Cout.  du  Japon,"  1894,  p.  13.  — As  to  daughters  in  Lombard  law  see: 
Kjer,  "Dansk  og  Langob.  Arveret,"  1901  (C.  R.  in  "Z.  S.  S.,"  1901,  "G.  A.," 
367).  —  Chaisemartin,  p.  442.  —  Repurchase  of  the  eldest,  Decree  of  Nov.  30, 
1793. 

^  Equality,  which  did  not  exist  between  older  children  and  younger  chil- 
dren, existed  still  less  between  Children  of  Different  Marriages.  Very  often, 
in  fact,  in  the  old  Customary  law,  the  mother's  dowor  was  limited  to  the 
children  who  were  issue  of  the  marriage  so  as  to  exclude  the  children  of  the 
other  marriages.  The  application  of  the  old  laws  to  second  marriages  pro- 
duced an  analogous  result.  The  father's  possessions  were  thus  partitionedj 
to  make  use  of  the  old  expression,  "par  ventr6es."    As  to  these  institutions, 

637 


§  454]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

Under  the  form  which  it  had  assumed,  primogeniture  had  become 
too  much  reduced  to  give  the  French  nobihty  any  real  power. 
And  the  Revolutionary  laws  and  the  Civil  Code  in  abolishing 
primogeniture  only  generalized  the  common  law  of  the  Customs.^ 
In  vain  was  it  attempted  to  re-establish  this  right  in  1826  by 
means  of  legislation;  this  resurrection  met  with  a  very  lively 
opposition  in  the  shape  of  public  opinion.  But  there  are  still 
families  where  the  eldest  son  is  appointed,  that  is  to  say,  the 
eldest  son  is  provided  for  at  the  expense  of  his  brothers  to  the  ex- 
tent that  the  law  will  allow,  and  often  beyond  this,  as  had  already 
been  formerly  done  in  countries  of  written  law.^  The  School  of 
Le  Play  proposed  regulating  the  freedom  to  make  a  will  in  such  a 
way  as  to  allow  the  father  of  a  family  to  choose  among  his  children 
the  one  who  is  most  worthy  to  carry  on  his  work  and  so  to  avoid 
the  parceling  up  of  a  patrimony  which  has  been  built  up  with  diffi- 
culty. It  is  also  with  this  latter  end  in  view  that  many  French 
families  have  adopted  the  course  of  having  an  only  son;  but  this 
system,  which  Malthus  was  naive  enough  to  vaunt  under  the 
name  of  "moral  restraint,"  is  inspired  rather  by  base  selfishness 
than  by  real  pride;  they  shrank  from  having  the  care  of  children. 
Individuals  have  gained  nothing  by  substituting  this  for  the 
right  of  primogeniture  and  the  State  has  lost  a  great  deal.^ 

cj.  Tyost,  "Marriage  Contract."  In  the  Netherlands  they  are  described  as  a 
right  of  devohition;  and  it  was  by  virtue  of  this  very  right  that  Louis  XIV 
claimed  the  Netherlands  themselves  in  the  name  of  his  wife,  Maria  Theresa 
(War  of  the  Devolution,  imi):  Britz,  670;  Slohhe,  V,  101;  Ficker,  IV;  II,  457. 
Decree  of  18  Vend.,  year  II. 

1  Decree  of  March  15,  1790;  April  8,  1791  (abolition  of  the  rights  of  primo- 
geniture and  preference  of  males).  Mirabeau's  speech  (read  an  hour  after  his 
death  in  the  Constituent  Assembly,  on  April  2,  1791);  Laferriere,  p.  220; 
Sognac,  p.  518;  Sevin,  "Orig.  Revolut.  du  Code  Napoleon,"  1870,  350  et  seq.; 
Brandt,  op.  cit.,  p.  69.  — Estates  in  tail,  Decl.  1806,  1808;  Peerage,  "Ord." 
1815,  Law  of  May,  1826  (entails);    R.  Foelix,  XVI,  11. 

2  It  is  to  be  observed,  in  fact,  that  the  Roman  principle  of  equal  parti- 
tion {Argou,  II,  21)  had  departed  from  this:  (a)  by  means  of  testamentary 
provisions  conferring  some  advantage  on  the  eldest,  even  in  the  families  of 
plebeians;  {h)  by  certain  Customs  ("Beam,"  "Bigorre,"  "Pays  Basque") 
conferring  the  family  possessions  upon  the  eldest  son  or  eldest  daughter  im- 
partially, and  describing  the  younger  sons  as  slaves:  A.  de  Brandt,  "Droit 
et  Cout.  des  Popul.  rurales  de  la  France  en  mat.  successorale,"  1901,  p.  29. 
Cf.  Lagreze,  Cordier,  etc.;  Lespinasse,  "R.prat.,"  1879  {Cayolars).  —  Flammer, 
"Dr.  Civil  de  Geneve,"  p.  18:  customs,  being  stronger  than  the  laws,  kept 
up  the  right  of  primogeniture,  which  had  been  prohibited;  the  youngest  sons 
remained  bachelors  and  became  the  men  servants  of  the  eldest,  or  else  emi- 
grated: Th.  dc  Montauge,  "L'Agr.  Toulous.,"  118. 

'  It  is  a  good  thing  in  our  opinion  for  each  one  of  the  children  to  receive 
a  portion  of  the  father's  possessions:  but,  if  this  partition  results  in  the  ruin 
of  some  enterprise,  and  means  the  liquidation  or  the  selling  at  a  very  low  price 
of  an  industrial  or  commercial  establishment,  it  fails  to  attain  its  object,  and 

638 


Topic  2]    INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS   [§  455 

§  455.  Lack  of  Representation.  —  In  the  very  old  law  repre- 
sentation was  not  admitted,  either  in  the  direct  line  or  in  the  col- 
lateral line:  (a)  grandsons  did  not  share  with  sons  who  were 
brothers  of  their  predeceased  father  in  the  succession  of  their 
grandfather;  (b)  all  the  more  reason  why  if  a  brother  died,  his 
brother  succeeded  to  him  and  excluded  his  nephews  who  were  the 
sons  of  another  predeceased  brother.  In  our  day,  on  the  con- 
trary, and  before  this  in  Rome,  grandsons  or  nephews  represented 
their  father  and  had  the  same  rights  of  succession  as  he  had,  be- 
cause the  affection  of  the  grandfather  or  the  uncle  was  carried 
back  to  them.  In  the  old  Germanic  law  it  seems  that  two  reasons 
were  opposed  to  representation:  1st.  When  brothers  lived  in  a 
community,  the  death  of  one  of  them  did  not  at  the  moment  con- 
fer any  right  on  his  sons;  the  circle  of  interested  parties  contracted, 
and  that  was  all.^  2d.  Leaving  out  all  question  of  a  community, 
the  uncle  was  preferred  to  the  nephew  because,  owing  to  his  age 
and  his  position,  he  was  more  fit  to  fill  the  part  of  head  of  the  fam- 
ily. This  is  so  true  that  in  certain  legislations  sons  are  excluded 
from  the  succession  of  their  ow^n  father  by  their  uncles,  who  are 
brothers  of  the  latter  (tanistry  in  Ireland).^  —  The  cause  of  the 
uncles  should  not  have  prevailed,  because  it  was  in  opposition  to 
the  general  aspect  of  the  law  of  inheritance.^    From  the  year  596, 

it  would  be  better  to  confer  the  entire  patrimony  upon  the  eldest  or  one  of 
the  other  sons  charged  with  setting  up  his  brothers  and  giving  a  marriage 
portion  to  his  sisters.  We  do  not  condemn  the  system  of  equal  partition,  but 
we  do  criticise  its  unintelligent  application.  The  care  of  avoiding  the  disad- 
vantages that  it  carried  with  it  should  be  left  to  the  tribunals  and  to  the 
father  of  the  family  subject  to  their  control.  It  would  be  a  mistake,  moreover, 
for  one  to  imagine  that  this  reform  and  other  more  radical  ones,  such  as  the 
introduction  of  the  freedom  to  bequeath  by  will  or  the  establishment  of  the 
right  of  primogeniture,  would  change  the  existing  customs:  De  Bonald,  "La 
Famille  et  le  Dr.  d'Ainesse,"  1826;  Noiret,  "Morcell.  et  Reconcentr.,"  1901; 
Brandt,  op.  cit.,  p.  69  et  seq.  (details  as  to  the  actual  application  of  the  old 
Customs);  Verdelot,  p.  614;  Regnier,  "These,"  1900. 

1  Gierke,  II,  949;  Dultzig,  69.  The  grandsons  who  were  the  issue  of  a  son 
who  was  married  and  had  an  establishment  outside  of  the  house  could  not  com- 
pete with  their  uncles  who  remained  connected  with  the  family  community 
to  which  they  themselves  no  longer  belonged. 

^  There  are  no  traces  of  this  .system  in  the  barbarian  laws;  but  it  was  some- 
times applied  to  the  succession  to  the  throne  under  the  Merovingians  (the 
children  of  Clodomir);  Viollet,  "Inst,  pol.,"  I,  246;  "Mc';m.  s.  la  Tanistry" 
("Ac.  Inscr.,"  32,  2,  275).  Application  to  the  fief  in  Poitou:  D'Espinmj, 
"N.  R.  II.,"  1896,  477;  Dc  la  Menardiere,  "Succession  de  Frfire  h,  Frere  dans 
la  T.  A.  C.  de  Poitou  " ;  Chaisemartin,  398 :  The  inheritance  remains  in  the  heart 
of  the  family;  Grimm,  5:  a  child  "in  sinu  avi."  Cf.  Heusler,  loc.  cit.  "Z  S  S 
G.  A.,"  1901,  372. 

»  Roman  law:  "Cod.  Th6od.,"  5,  1,  4.  Cf.  "Nov.  Just.,"  118;  Papien, 
10;  "Burg.,"  14,  75,  78;  "Wis.,"  4,  .5,  4;  4,  2,  18  ("Ant.,"  327);  Grimoald,  5-; 
"Liut.,"  3;  "Sax.,"  46.  —  When  the  grandsons  compete  only  among  them- 

639 


§  455]  INTESTATE  SUCCESSION,  GIL\TUITOUS  CONVEYANCES  [Chap.  IV 

the  "Dec.  Childeberti "  allowed  grandsons  "exfilio"or  "exfilia" 
to  represent  their  father  or  their  mother  in  the  succession  of  the 
grandfather.  It  is  not  certain  that  this  law  was  applied;  and, 
in  fact,  we  are  in  possession  of  later  formulae  of  the  recalling  to 
succession  of  grandsons  wherein  it  is  apparent  that  legally  they 
would  not  have  inherited.^  In  Germany  it  is  reported  that  the 
question  was  settled  in  942  before  Otto  I  by  the  duel  at  law;  the 
champion  among  the  nephews  took  the  succession.^ 

During  the  feudal  period  representation  combined  with  the 
right  of  primogeniture.  The  grandson  of  the  predeceased  eldest 
son  enjoyed  the  same  privileges  as  his  father  and  kept  the  succes- 
sion to  the  fief  from  his  uncles.  This  was  a  solution  which  was 
not  without  its  disadvantages,  because  it  sometimes  resulted  in 
giving  the  lord  a  child  for  his  vassal,  and  because  it  might  make 
of  a  minor  the  head  of  the  State.  The  law  was  not  sufficiently 
well  settled  to  avoid  conflicts  taking  place  between  uncles  and 
nephews,  like  the  one  which  arose  between  John  Lackland  and 
his  nephew,  Arthur  of  Brittany ;  the  tragic  death  of  the  latter 
was  only  a  temporary  development  of  that  which  was  called  the 
"casus  regis."  The  misfortunes  which  overthrew  John  Lackland 
seemed  to  be  a  just  judgment  from  God  upon  the  usurping  uncle; 
and,  in  fact,  in  the  fourteenth  century  representation  prevailed  in 
England.^  In  France,  during  the  thirteenth  and  fourteenth  cen- 
turies, there  is  a  divergence  between  the  Customs,  and  in  the  six- 
teenth century  representation  is  with  difficulty  admitted  in  the 
collateral  line.^    The  Decree  of  April  8-15,  1791,  generalized  repre- 

selves  because  the  sons  have  predeceased  them,  the  partition  by  heads,  "per 
capita,"  is  a  logical  consequence  of  the  family  community.  It  was  practi-sed 
first  of  all,  it  would  seem.  Cf.  "Sal.  Herold"  (59),  62,  6,  and  "M.  G.  H.,  L.  L.," 
IV,  590;  "Sax.,"  46;  Stobhe,  V,  96;  Heusler,  II,  5S3.  After  the  Frankish  period 
partitioning  by  stocks,  "per  stirpes,"  which  is  in  accord  with  the  system  of 
assumed  affection,  is  substituted  for  partition  by  heads:  "Rib.,"  48;  Roziere, 
141 ;  Chaisemartin,  410.  —  If  the  deceased  only  leaves  nephews,  sons  of  several 
brothers,  they  inherit  from  their  common  ancestor  and  partition  by  heads 
according  to  Azon  {id.  Diet  of  Spire,  1529):  they  come  in  by  representation 
and  partition  by  stocks  according  to  Accursius  {id.  Civil  Code,  742);  Pasquier, 
"Inst.,"  487;  Stobbe,  V,  114.    Cf.  Civil  Code,  787. 

1  Roziere,  "Form.,"  131  et  seq.;  Sirm.,  22;  Marculje,  II,  10,  etc.;  TMvenin, 
Table. 

2  "  M.  G.  H.,  S.  S.,"  Ill,  440.  It  does  not  seem  that  very  much  account  was 
taken  of  this  decision:  "Sachsensp.,"  1,  5,  1;  "Schwabensp.,"  8. 

3  "T.  A.  C.  Norm.,"  12;  Marnier,  p.  25;  "Summa,"  23,  5;  Glanville,  VII,  3; 
Bracton,{o.  267 /i;  Brunner,  43;  Pollock  and  Maitland,  11,  281.  — "N.  R.  H.," 
1893,  5. 

*  Beaumanoir,  14,  23;  Desmares,  238,  282.  Representation  in  the  collateral 
line  was  not  admitted  until  1580  in  the  "Cout.  de  Paris,"  319.  Certain  of  the 
Customs  still  rejected  it  even  in  the  direct  line:  "Ponthieu,"  8;  " Boullenois," 

640 


Topic  2]    INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS    [§  456 

sentation  in  the  direct  line  of  descendants,  and  tlie  Decree  of  tlie 
17th  Nivose,  year  II,  Art.  77,  established  it  indefinitely  in  the 
collateral  line  in  conformity  with  a  small  number  of  the  Customs. 
The  Civil  Code  only  admits  it  in  the  direct  line  and  in  favor  of 
the  descendants  of  brothers  and  sisters,  following  the  example  of 
the  "Novella,"  118,  and  of  the  Custom  of  Paris. 

§  456.  (II)  Lineage  (Ascendants  and  Collaterals).^  —  If  there 
were  no  descendants,  the  succession  seems  to  have  devolved  in  the 
old  times  upon  the  lineage  of  the  deceased,  in  order  of  kindred  or 
groups  of  relatives  having  each  a  common  ancestor  (thus  my  kin- 
dred includes  my  entire  posterity,  son,  grandson,  etc.).-    If  there 

75,  etc.;  Loysel,  321.  Unlimited  representation  in  the  collateral  line:  "Anjou," 
224;  "Auvergne,"  12,  9.  Cf.  public  law:  Guyne,  "Tr.  de  la  Repr6s.,"  1727, 
1779;  "Champagne,"  id.  1720;  "Mignot,"  id.  1777;  Gerhardi,  "Orig.  de  la 
Regie:  Representation  a  lieu  a  I'lnfini,"  1767;  Ricard,  "Tr.  de  la  Repres.  et 
du  Rappel,"  "CEuvres,"  1685,  1783.  —  On  the  recalling  to  succession  c/.  ylr^ow, 
I,  439;  this  can  be  done  by  means  of  some  deed;  distinction  between  the  re- 
calling in  terms  of  law  (that  is  to  say,  according  to  the  Roman  law),  and  not 
in  terms  of  law,  —  the  latter  merely  having  the  same  effects  as  a  legacy : 
Pasquier,  512. 

1  On  computation  of  relationship  cf.  Heusler,  II,  586;  Stobbe,  V,  62,  and 
authors  cited.  Especially  will  one  find  very  full  details  in  Ficker,  I,  277-475 
(he  distinguishes  in  Germanic  law  four  kinds  of  calculation:  1st,  by  groups  of 
brothers;  2d,  by  groups  of  cousins;  3d,  by  degrees;  4th,  by  taking  into  account 
the  line  which  contains  the  greatest  number  of  degrees);  cf.  II,  22;  XLII,  68. 

—  "Stemmata"  or  "arbores  cognationum"  drawn  up  after  the  manner  of 
the  Roman  law,  —  especially  Paul,  IV.  10,  in  the  "L.  Rom.  Wis.";  Girard, 
"Textes,"  p.  427  et  seq.  The  " Lectura  of  Joh.  Andrece  "super  arboribus  con- 
sanguinitatis"  was  very  well  known.  —  In  Germanic  law  relationship  is  figured 
differentlj^;  it  is  represented  in  the  form  of  the  human  body;  each  member  or 
each  joint  constitutes  a  degree:  "Genu,  Geniculum":  "Sal.,"  59;  "Rib.,"  56. 

—  "Jostice,"  p.  228. 

2  The  system  of  degrees  of  consanguinity  considered  by  Mayer  and  Eich- 
horn  at  the  beginning  of  the  nineteenth  century  as  the  basis  of  the  German  law 
of  succession,  and  discarded  afterwards  by  Siegel  and  Wasserschlebcn,  reckoned 
many  partisans,  beginning  with  the  works  of  Brunner,  Gierke  and  Heusler; 
however,  Amira  and  Ficker,  even  to  this  day,  still  refuse  to  admit  it.  If  it  is 
rejected,  the  Germanic  system  of  succession  is  nothing  but  confusion :  no  guiding 
principle  can  be  found  in  it.  The  existence  of  this  system  of  consanguinity 
seems  to  have  been  established  especially  among  the  Lombards,  the  Anglo- 
Normans  and  the  Frisians:  "Roth.,"  153.  Cf.  "  Liut.,"  17;  Thevenin,  "Textes," 
no.  55;  Glanville,  VII,  3;  Bracton,  f.  68 &;  "Fleta,"  VI,  2;  Bntton,  VI,  3,  4; 
"Summa  Norm.,"  23;  "T.  A.  C.,  Bret.,"  220;  "A.  C.,"  566;  "N.  C.,"  594; 
Brunner,  "Erbf.,"  15;  "Sippe  u.  Verg.,  pass."  Moreover,  the  term  "parentela" 
has  in  the  barbarian  laws  more  the  indefinite  meaning  of  our  word  "parente" 
(relationship):  Heusler,  II,  594;  Huher,  IV,  548;  Ficker,  II,  55,  304,  387,  616; 
Homeyer,  "Parentelenordn.,"  1860;  Stobbe,  V,  62;  Kohler,  "Z.  V.R.,"  VII,  201 
(India) .  The  very  fact  of  the  computation  of  relationship  not  by  degrees,  but  by 
lines,  bears  witness  to  the  favoring  of  the  system  of  degrees  of  consanguinity;  for 
it  would  harv'e  been  strange  not  to  have  applied  it  under  circumstances  of  so  great 
importance  as  the  devolution  of  an  inheritance.  Cf.  Law  of  the  17th  Niv., 
year  II  (orders  of  heirs,  calling  to  mind  the  degrees  of  consanguinity):  Dnreste, 
p.  290;  Kohler,  "Abh.,"  341;  Schroeder,  327  (bibl.).  Criticism  of  Ficker  in 
Dnltzig,  56.  This  system  has  persisted  in  the  successions  of  noblemen  in 
Germany:  "Sachsensp.,"  1,  3,  3.     It  is  not  formulated  "ex  professo"  in  a 

641 


§  45G]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [ Chap.  IV 

were  no  descendants  of  the  deceased,  the  kindred  of  his  father  — 
that  is  to  say,  the  relatives  who  were  issue  of  the  latter  —  were 
called  to  the  succession.  When  this  kindred  was  exhausted  they 
passed  to  the  kindred  of  the  grandfather,  etc.  This  system,  with 
the  strict  application  of  the  agnatic  principle,  has  left  traces  in 
the  Customs  of  the  Middle  Ages;  but  it  has  been  replaced  in  a 
general  way  by  systems  which  are  less  logical  and  which  tend  to 
become  like  the  Roman  rules.  According  to  the  latter,  the  as- 
cendants succeeded  and  shared  with  the  brothers  and  sisters  (or 
nephews  of  the  full  blood)  of  the  deceased  ("Novella,"  118,  of 
Justinian);  if  there  were  none  of  these  the  succession  devolved 
upon  the  nearest  collaterals,  without  any  distinction  being  made 
according  to  the  nature  and  the  origin  of  the  property:  personal 
belongings  and  acquests,  movables  and  immovables,  were  treated 
in  the  same  manner  and  formed  one  single  mass.  This  classifica- 
tion of  relatives,  based  upon  the  presumed  affection  of  the  de- 
ceased, was  accepted  in  countries  of  written  law.  The  Custom  of 
Toulouse  was  the  only  one  which  deviated  from  it,  because,  as 
concerned  this  matter,  just  as  in  the  matter  of  the  "privilege  of 
the  double  tie"  (of  relationship),  the  law  enacted  previous  to 
the  reforms  of  Justinian,  that  is  to  say,  the  Theodosian  law,  had 
remained  in  full  force:  the  paternal  relatives  excluded  the  maternal 
relatives.  As  to  the  countries  of  Customs,  they  followed  the  rules 
of  the  written  law,  —  at  least,  in  the  case  of  succession  to  movables 
and  acquests.^ 

§  457.    Succession    to    Personal    Belongings,-    in    countries    of 

single  text;  they  limit  themselves  to  applications  of  it.  As  to  its  abandonment, 
cf.  Heusler,  II,  608.  —  Dareste,  "N.  Et.,"  p.  92  (Greece);  Post,  II,  190;  Lardy, 
"Legisl.  civiles  des  Cantons  Suisses,"  1877,  gives  tables  of  the  computation 
of  relationship  according  to  the  Germanic  systems  (degrees  of  consanguinity, 
etc.);  Stintzing,  "Gesch.  d.  Popul.  Lit.,"  I,  151  (on  the  "arbores"). 

1  Glasson,  VI,  427.  —  Cf.  especially:  Beaumanoir,  12,  14,  18;  "Jostice," 
pp.  235,  252;  "Const.  Chat.,"  19;  "Cout.  Not.,"  91;  Desmares,  93;  "Summa 
Norm.,"  23  et  seq.;  "T.  A.  C,  Bret.,"  220.  — As  to  acquests,  cf.  Ficker,  II,  no. 
570.  —  Jarriand,  op.  cit.;  Escarra,  "Succ.  aux  Biens  r^els  dans  les  Cout. 
Anglo-Norm.,"  1903  ("These"). 

2  See  especially  the  treatises  on  personal  belongings  by  Renusson  in  1700 
and  by  Pothier  in  1777.  —  Dufounna7itelle,  "These,"  1882;  Viollei,  845; 
Glasson,  VII,  471;  Schroeder,  733;  "Z.  S.  S.,"  1901,  109  (Norway);  Ficker,  II, 
404;  III,  469.  —  Formation  of  the  theory  of  personal  belongings,  cf.  varia- 
tions, ibid.,  V,  164,  244,  292.  Old  tendency  towards  uniformity  in  the  system 
of  personal  belongings  in  the  matter  of  succession,  repurchase,  and  the  com- 
munity. In  the  seventeenth  century  this  tendency  had  long  since  ceased,  as 
is  proved  by  Lebrun,  and  as  was  inevitable  in  the  progressive  disintegration 
of  the  rights  of  the  family.  —  As  to  the  "Stammgiiter"  or  family  possessions 
of  the  German  nobility,  which  are  transmitted  in  the  male  line,  cf.  Verdelot, 
"These,"  p.  90.  —  "Z.  S.  S.,"  1881,  "G.  A.,"  1898. 

642 


Topic  2]   INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS   [§  457 

Customs,  may  be  summed  up  according  to  the  final  law  in  the 
"  splitting  "  or  division  of  personal  belongings  into  two  parts,  the 
one  coming  from  the  father  or  the  paternal  family,  the  other  com- 
ing from  the  mother  or  the  maternal  family.  Each  mass  returns 
whence  it  came,  —  "paterna  paternis,  materna  maternis."  ^ 
The  older  law  sprang  from  the  idea  that  only  paternal  personal 
belongings  were  included  in  the  succession;  the  mother  of  the  de- 
ceased, being  excluded  from  the  paternal  inheritance,  had  brought 
nothing  into  it,  which  resulted  in  the  maternal  line,  the  relatives 
by  the  distaff  or  the  spindle  ("Spillmagen,"  "  Kunkelmagen ") 
having  nothing  to  claim  in  the  hereditary  possessions;  the  rela- 
tives by  the  sword  or  by  the  spear  ("Schwertmagen,"  "Speer- 
magen")  ^  being  alone  called  to  collect  them.  In  conceding  to 
women  important  rights  of  succession,  the  maternal  line  was 
eventually  allowed  to  take  the  possessions  in  the  succession  which 
came  from  the  mother;  to  make  the  paternal  relatives  benefit 
thereby  would  have  been  to  sacrifice  one  family  to  the  other. 
Thus  there  was  established  in  the  new  law  the  repartition  between 
the  two  lines,  but  not  without  falterings  and  compromises.^  The 
Edict  of  Mothers,  1567,  repealed  in  1729,  attempted  for  a  little 
time,  but  without  any  success,  excepting  in  Provence,  to  intro- 

1  "Cart,  de  Redon,"  in  871;  Statute  of  Burchard  of  Worms,  1;  "L.  Feud.," 
2,  11;  "Ass.  de  Jer.,"  "C.  des  B.,"  58;  "Cout.  Not.,"  12;  "A.  C,  Picardie," 
156;  Doutaric,  I,  76;  "Ord.,"  V,  156;  D'Espinay,  "Cartul.  Angevins,"  p.  245. 
—  The  South:  "Beam,"  1551,  wills;  Lavedan,  6;  Jarriand,  "N.  R.  H.,"  1890, 
240;  "  R.  Q.  hist.,"  1890, 214  (succession  of  persons  not  having  attained  puberty, 
Quercy,  Confluent).  —  Pollock  and  Mailland,  II,  297.  —  Schroeder,  735  (bibl.); 
Stobbe,  V,  105;  Heusler,  II,  527;  Ficker,  II,  404;  III,  nos.  705,  745  (equality 
of  both  lines  originally;  extension  of  this  rule  from  acquests  to  personal  be- 
longings: nos.  570,  586).  Splitting,  resplitting  and  resplitting  again,  in  such 
a  way  as  to  divide  the  mass  into  eight  parts,  in  certain  Customs.  —  The 
"Schwabensp.,"  148,  cites  the  Bible,  "Numbers,"  xxvii,  8.  —  "Montpellier," 
58. 

^  Heusler,  II,  606.  Peculiarities  of  the  German  law  on  the  subject  of  the 
"Vatermagen"  and  "  Muttermagen "  and  of  the  distinction  formerly  estab- 
lished between  these  classes  of  relatives  and  the  "Schwertmagen"  and  "Spill- 
magen,"  etc.:  "Sachseasp.,"  I,  71,  1;  "Schwabensp.,"  148  (128),  275  (225). 
Sometimes  the  male  agnates  exclude  the  women  and  sometimes  the  paternal 
line  excludes  the  maternal  line,  etc.:  Ficker,  III,  518,  590,  4,  1;  5,  "Z.  S.  S.," 
1883,  "G.  A.,"  1;  Stobbe,  V,  106;  Pertile,  IV,  71,  76.  As  to  the  succession  of 
the  "Muttermagen,"  cf.  Drunner,  "Berlin,  Akad.,"  1894,  II,  p.  1293;  Adam, 
" Thronfolgerecht  der  Kognaten,"  1897.  See  also  "Toulouse,"  124.  Some- 
times the  maternal  relatives  only  have  one-third.  Sometimes  the  father  takes 
to  the  exclusion  of  the  mother:  Chaisemartin,  p.  390;  Giraud,  "Essai,"  I,  112. 

'  Exclusion  of  daughters  in  the  collateral  line  (of  equal  degree):  J.  d'Ibelin, 
175;  "Jostice,"  12,  6,  28;  "Cout.  Not.,"  71;  "Const.  Chat.,"  68;  "Gr.  Cout.," 
II,  25  (p.  279);  Lo!/.se;,634  et  seq.;  "Paris,  A.C.,"  16;  "N  C,"  25;  Pothier,  VIII, 
100  (ed.  Bug.).  —  Barring  of  descendants  (whether  males  or  not)  of  the  women: 
Loysel,  ibid.;  "Touraine,"  284;  "Auvergne,"  12,  25;  Beaumanoir,  14,  28.  Cf. 
' '  Primogeniture, "  "  Representation. ' ' 

643 


§  457]  INTESTATE  SUCCESSION,  GItVTUITOUS  CONVEYANCES  [Chap.  IV 

duce  into  the  countries  of  written  law  this  rule,  which  was  so 
contrary  to  Roman  legislation.^ 

§  458.  Ascendants.^  Rule:  "  Personal  Belongings  do  not  As- 
cend." ^  —  This  rule  has  been  extended  in  two  directions.  (A)  For- 
merly it  signified  that  ascendants  did  not  succeed  to  their 
descendants;  they  were  excluded  by  the  collaterals,  and  even  by 
the  Treasury.'*  Is  this  peculiarity  of  the  Customary  law  to  be 
accounted  for  by  the  influence  of  the  rule,  "fiefs  do  not  ascend"  ?  ^ 
This  could  be  readily  understood,  because  at  a  given  time  the  ma- 
jority of  lands  were  fiefs  and  copyholds.^    Must  one  rather  see 

1  Mellier,  "Sommaire  explicatif  de  I'Edit  du  Roi  par  lequel  il  ordonne  que 
dorenavent  les  Meres  ne  succederont  a  leurs  Enfants  es  Biens  provenus  de 
Cote  paternel,  mais  seulement  es  Meubles  et  Conquets  provenus  d'ailleurs," 
1575;  Bouhier,  "Tr.  de  la  Succ.  des  Meres,"  1726;  Argou,  II,  22;  VioUet,  847. 

2  As  to  the  rights  of  ascendants,  cf.  especially  Picker,  II,  399;  III,  nos.  702, 
740,  9175;  Britz,  V,  678.  —  Texts  of  the  Customs  in  Gu^nois,  II,  15.  —  Fertile, 
IV,  69. 

3  Tacitus,  "Germ.,"  20;  "Burg.,"  14,  53,  78;  "Thur.,"  6.  On  the  other 
hand,  the  "L.  Sal.,"  59,  calls  fathers  and  mothers  to  the  succession:  "Rib.," 
58;  "Wis.,"  4;  "Alam.,"  92;  "Roth.,"  170;  "Fris.,"  9;  Greg.  Tours,  IX,  93. 
Charters,  for  example,  that  of  Saint-Omer,  "Ord.,"  IV,  251;  "Lib.  pract. 
Rem.,"  39;  "L.  Henr.  I,"  70;  Glanville,  VII,  1,  10;  Chaisemartin,  401;  Picker, 
II,  457  (details  and  special  system);  III,  364,  607;  Stohhe,  V,  107;  Fertile,  IV, 
71  (mother).  Exclusion  in  China,  Greece,  and  among  the  Slavs:  Dareste, 
"Nouv.  Et.,"298,  90. 

^  "Cout.  Not.,"  185,  90,  194;  "Gr.  Cout.,"  p.  369;  "Paris,"  312;  Loysel, 
322;  "Ass.  de  J6r.,"  "C.  des  B.,"  Abridgment,  58;  Commentary  on  "Roth.," 
153.  The  personal  belonging  is  defined  as  being  the  property  which  the  de- 
ceased holds  from  his  ascendants  by  means  of  succession  or  gift.  If  it  is  a 
piece  of  property  that  has  been  given,  the  reversion  restores  it  to  the  ascendant. 
If  it  is  a  piece  of  property  that  has  come  to  him  by  succession,  the  ascendant 
is  dead  and  can  no  longer  reclaim  it.  The  rule,  "Personal  belongings  do  not 
ascend,"  seems  at  first  blush  to  be  inapplicable.  But  this  merely  appears  to 
be  so.  There  are  exceptional  hypothetical  cases,  it  is  true,  where  it  is  liable 
to  apply.  N  dies  leaving  a  personal  belonging  which  came  to  him  from  his 
father  (who  predeceased  him),  and  which  was  an  acquest  of  the  latter's;  can 
the  paternal  grandfather  of  N  succeed  to  this  personal  belonging  in  prefer- 
ence to  the  collaterals?  Or,  again,  can  my  father  take  in  my  succession  the 
personal  belongings  coming  from  my  paternal  uncle,  whose  succession  he  had 
renounced,  etc.?    Masuer,  32,  8;  Pasquier,  "Inst.,"  499. 

6  <'L.  Feud.,"  1,  14;  2,  11;  2,  50;  J.  d'Ibelin,  185;  Blackstone,  II,  14;  Glas- 
son,  VII,  462.  The  fief  could  only  go  to  the  descendants  of  the  grantee  from 
the  point  of  view  of  the  grantor;  the  ascendants  of  the  first  vassal  were  thus 
excluded  from  it.  If  it  were  a  matter  of  a  fief  that  had  been  granted  in  former 
times,  an  ascending  inheritance  of  the  present  vassal  belonged  to  the  posterity 
of  the  original  vassal ;  but  the  fief  had  escaped  him  to  go  to  his  descendants,  and 
he  himself  could  not  take  it  back.  This  same  reasoning  applied  in  the  case 
of  copyholds.  —  Italy:  right  of  ascendants  to  freeholds,  but  exclusion  of  the 
mother  (and  of  brothers  born  of  the  same  mother):  Commentary,  on  "Roth.," 
153;  Texts  in  Fertile,  IV,  70;  "Z.  S.  S.,"  1901;  "G.  A.,"  374  (Kier,  etc.) 

8  Brunner,  "Erbf.,"  22,  suggested  an  explanation  of  this  rule  drawn  from 
a  passage  in  Glanville,  7,  1,  10:  "Nemo  ejusdem  tenementi  simul  potest  esse 
hseres  et  dominus."  The  vassal  who  wishes  to  dispose  of  his  fief  for  the  bene- 
fit of  his  son  is  only  free  to  do  so  during  his  lifetime  by  means  of  subinfeudation; 
thus  he  grants  it  to  his  son  as  a  fief  held  under  a  mesne  lord  that  has  passed  to 

644 


Topic  2]    INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS    [§  458 

therein  a  formula  previous  to  the  feudal  system,  demonstrating  the 
fact  that  the  succession  of  ascendants  was  a  physical  impossibility? 
Because  one  of  two  things  must  have  taken  place, —  either  the 
descendants  had  not  left  the  paternal  house,  and  in  this  case  they 
possessed  nothing  of  their  own,  or  else  they  had  left  the  paternal 
house,  and  then  the  ties  which  united  them  to  their  descendants 
were  broken.  But,  according  to  this  last  hypothesis,  it  is  not  very 
easy  to  see  why  these  ties  between  them  and  the  collaterals  still 
remained.  Whatever  its  origin  may  be,  this  rule  was  too  contrary 
to  the  spirit  of  the  new  law  to  last  very  long;  it  was  abandoned, 
and  with  the  exception  of  brothers  and  sisters  the  ascendants 
were  preferred  to  any  of  the  collaterals.^  In  the  past,  legal  rever- 
sion had  helped  in  supporting  this  rule.  —  (B)  At  this  point  the 
rule,  "Personal  belongings  do  not  ascend,"  should  have  disap- 
peared. It  was  preserved  by  giving  it  a  new  meaning;  it  meant 
that  the  paternal  personal  belongings  did  not  come  to  the  mater- 
nal relatives,  and  vice  versa,  —  at  least,  if  there  remained  no 
person  of  the  line  for  which  the  personal  belonging  had  been  ap- 
propriated. In  this  case  the  property  devolved  from  one  line  upon 
the  other.  Thus  understood,  it  was  a  useless  repetition  of  the 
maxim,  "Paterna  paternis,  materna  maternis."  ^ — (C)  Legal  re- 
version for  the  benefit  of  the  ascendant  donor  is  not  connected, 
as  has  been  thought,  with  the  provisions  of  the  Roman  laws  relat- 

the  heirs  of  the  body  or  to  the  collaterals;  it  is  only  upon  failure  of  heirs  that 
it  reverts  back  to  the  original  grantor:  "Etabl.  de  Norm.,"  ed.  Marnier,  25. 
"Assise"  of  Count  Geffroi,  1187.  —  In  Normandy,  at  the  beginning  of  the 
thirteenth  century,  this  theory  did  not  exclude  the  right  of  ascendants  to  suc- 
ceed. In  England,  following  the  Statute  "Quia  Emptores"  (18,  Edward  I),  it 
was  possible  for  a  vassal  to  grant  a  portion  of  his  fief  without  subinfeudating 
it;  and  thenceforth  the  obstacle  which  stood  in  the  way  of  the  right  of  ascend- 
ants to  succeed,  —  which  was  that  "  No  one  could  be  heir  and  lord  of  the  same 
tenement  at  the  same  time,"  —  disappeared.  Britton,  II,  310,  163  (according 
to  him,  the  inheritance,  which  is  the  important  thing,  descends  and  never 
ascends).  Cf.  Pollock  and  Maitland,  II,  284  (a  means  of  weakening  the  con- 
sequences of  the  right  of  primogeniture).  Assuming  that  the  rule,  "Nobody 
can  be,"  etc.,  had  its  influence  upon  the  Anglo-Norman  law,  it  could  not  account 
for  the  principle  in  the  other  legal  systems  that  "  Fiefs  do  not  ascend,"  and  still 
less  for  the  analogous  principle,  "Personal  belongings  do  not  ascend." 

1  The  rule,  "So  long  as  the  stem  has  a  stock  it  does  not  fork,"  Loysel,  334, 
expresses  the  preference  for  ascendants  before  collaterals:  "Paris,"  325. — 
Cf.  Chaisemartin,  399  ("Schoossfall" );  "Sachsensp.,"  VII,  17. 

2  Benumanoir,  14,  22,  23,  24:  The  personal  belonging  which  has  come  from 
the  father  passes  to  the  paternal  grandfather,  although  the  hitter  is  excluded  by 
the  brothers  and  sisters  of  the  deceased  with  regard  to  movables  and  acquests 
(they  are  one  degree  nearer).  Contra:  "Gr.  Gout.,"  p.  369;  Desmarei^,  293. 
Cf.  "Pari,  aux  Bourg.,"  p.  119.  On  these  contradictory  texts,  cf.  Fickcr,  ITT, 
580;  Lauriere,  on  Loysel,  334;  on  "Paris,"  312.  Succession  of  ascendants  to  the 
usufruct  in  certain  of  the  Customs:  Argou,  II,  22.  Cf.  Civil  Code,  754;  Polhier, 
11,1. 

645 


§  458]  INTESTATE  SUCCESSION,  GR-\TUITOUS  CONVEYANCES  [Chap.  IV 

ing  to  the  restitution  to  the  "  paterf amihas "  of  the  "  dos  "  by 
succession  in  the  direct  Hne/  in  case  of  a  dissokition  of  the  mar- 
riage owing  to  the  predecease  of  the  wife.  Nor  can  it  be  derived 
from  the  pre-Justinian  any  more  than  from  the  Justinian  law;  in 
fact,  the  restoration  of  the  "  dos  "  by  succession  in  the  direct  hue 
had  ceased  to  be  made  use  of  at  the  time  of  the  invasions;  ^  thus 
it  is  not  from  the  Theodosian  legislation  that  it  could  have  been 
borrowed.  Justinian  gave  this  institution  a  sort  of  artificial  life, 
but,  as  the  influence  of  the  Justinian  law  only  made  itself  felt 
rather  late  in  France,  and  as  reversion  was  there  practised  be- 
fore this  period,  it  was  not  borrowed  from  the  Justinian  legisla- 
tion to  any  greater  extent  than  this.^  In  reality  it  is  only  a 
survival  of  the  old  Germanic  law,  according  to  which  a  gift  was 

1  Dig.,  23,  3,  6  (Pomponius);  "Cod.  Just.,"  6,  61,  1  and  2;  Mitteis,  "Reichs- 
recht,"  251;  "Cod.  Theod.,"  3,  5,  9  ("wedding  gifts"  restored  to  all  who  gave 
them);  "Novella,"  25  of  Leo  the  Philosopher  (ninth  century). 

2  Without  having  been  abrogated,  the  old  law  was  no  longer  apphed. 
This  is  the  result  of  the  texts  inserted  in  the  "Papien"  and  the  "Brev. 
d'Alaric";  "Novella,  Theod.,"  II,  14,  1,3;  "Novella,  Valentinian,"  111,34, 
8,  9,  10;  "Novella  Major,"  6,  6,  7;  Pajnen,  26,  10;  "Ed.  Theod.,"  54;  Mitteis, 
op.  cit.,  248.  —  "Cod.  Euric,"  321;  "L.  Wis.,"  4,  2,  13.— C/.  "Cod.  Just.,"  3, 
38,  12  (which  does  not  contemplate  a  right  of  reversion  to  the  mother) ;  5,  13, 

I,  13;  "Novella,"  22,  23;  "Petrus,"  I,  3:  no  legal  reversion;  acquiring  of  the 
marriage  portion  by  the  surviving  husband,  unless  there  be  an  agreement  to  the 
contrary;  "Toulouse,"  88,  113  et  seq. 

^  Reversion  in  the  barbarian  laws  ("Sax.,"  42;  "Alam.,"  54,  2;  Heusler, 

II,  318,  326;  "Wis.,"  3,  1,  5;  4,  5,  3;  5,  2,  4.  Cf.  "Bai.,"  15,  8;  "Burg.,"  62, 
2),  later  on  in  the  "Schwabensp.,"  15;  in  the  Scandinavian  law  ^mira,  "N.  O.," 
I,  529;  II,  655;  in  Flanders  and  in  Friesland.  In  the  Anglo-Norman  law  the 
reversion  was  admitted  formerly  {Glanville,  7,  18,  3;  Delisle,  "Jug.  de  I'Echiq.," 
no.  537),  unless  the  property  had  been  granted  as  a  fief  by  the  donor  to  the 
donee,  because  no  one  can  be  heir  and  lord  of  the  same  tenement ;  this  perhaps 
explains  why  it  has  disappeared  from  the  English  law  (Glanville,  7,  1,9);  the 
"Summa  Norm.,"  119,  also  rejects  it.  Sicilian  law:  "Catane,"  14;  "Messine," 
12,  reversion  of  Norman  origin:  Briinneck,  35.  In  the  French  sources  the 
reversion  is  frequently  found  in  the  twelfth  and  thirteenth  centuries,  and  rarely 
in  the  fourteenth  and  fifteenth  centuries,  as  a  consequence  of  the  influence  of 
the  rule,  "Personal  belongings  do  not  ascend,"  or  else  because  the  old  concep- 
tion of  the  gift  has  been  abandoned;  the  reversion  is  generally  found  in  the 
second  half  of  the  sixteenth  century  because  of  the  influence  of  the  Roman  laws, 
and  because  the  rule,  "Personal  belongings  do  not  ascend,"  had  changed  in 
meaning.  In  the  "Cout.  de  Paris,"  it  disappears  between  the  "Const.  Chat.," 
18,  and  the  "N.  C,"  of  1580,  313;  "Cout.  Not.,"  185;  Desmares,  293;  "Gr. 
Cout.,"  p. 369;  "N.R.H.,"  1891, 188.  Municipal  charters,  Laon,  etc. ;  "Ord.," 
XI,  186,  233,  236,  etc.;  P.  de  Fontaines,  15,  14;  "Jostice,"  253;  "Reims," 
1520,  6;  "A.  C,  Champ.,"  10;  "Vitry,"  26;  "Amiens,  T.  A.  C,"  63,  70,  82; 
Marnier,  "Picard.,"  15;  Guynes,  ed.  Taillar,  p.  213;  "L.  de  Droiz,"  857. 
On  "Olim,"  I,  715,  cf.  Glasson,  VII,  506;  Brunner,  p.  699  (the  text  contem- 
plates the  right  of  reversion  in  the  most  formal  manner  under  the  form  of  a 
succession  by  some  special  right,  and  it  is  sought  to  do  away  with  it  by  de- 
jiarting  from  the  rule,  "Personal  belongings  do  not  ascend  ").  Thus  we  believe 
that  M.  Glasson  is  mistaken  in  denying  the  existence  of  the  right  of  reversion 
during  the  feudal  period,  whether  it  be  in  countries  of  written  law  or  in  coun- 
tries of  Customs:  "Schwabensp.,"  I,  16. 

646 


Topic  2]   INTESTATE  SUCCESSION.    VARIOUS  KINDS.  OF  HEIRS   [§  458 

first  of  all  looked  upon  by  the  donor  as  a  conditional  act,  an  act 
of  generosity  which  was  only  meant  for  the  donee  himself,  and, 
at  the  very  most,  for  his  children  or  his  descendants;  if  he  had 
no  posterity,  the  property  which  had  been  given  reverted  back 
to  the  donor.  This  conception,  which  was  abandoned  for  ordi- 
nary gifts,  subsisted  in  the  case  of  gifts  made  by  ascendants  to 
their  descendants,  no  doubt  because  there  was  found  therein  an 
opportunity  to  keep  the  property  in  the  family.^  —  In  countries 
of  written  law  the  reversion  took  place  more  fully;  there  was 
seen  therein  the  same  effect  as  an  implied  condition  subsequent 
would  have,^  and,  consequently,  the  property  reverted  to  the 
donor  free  from  every  charge.^  The  countries  of  Customs  gave 
the  ascendant  lesser  rights,  perhaps  because  whatever  advan- 
tage he  lost  by  way  of  reversion  he  recovered  by  way  of  repur- 
chase and  the  reservation.  Reversion  was  looked  upon  as  the 
exercise  of  a  true  right  of  intestate  succession;  ^  the  donor  only 

1  Celebrated  controversy  among  the  Glossators  to  decide  whether  the  mar- 
riage portion  ought  to  be  restored,  even  in  case  there  were  cliildren.  Bul- 
garus,  who  agreed  with  the  texts,  maintained  this;  Martinus,  who  was  of 
a  more  practical  turn  of  mind,  denied  it.  The  wife  of  Bulgarus  having  died 
without  leaving  any  children,  the  father-in-law  of  this  jurisconsult  consulted 
Martinus.  "If  I  were  in  Bulgarus's  place,"  said  the  latter,  "I  would  not  give 
you  back  the  marriage  portion;  but  in  his  case,  unless  he  contradicts  himself, 
he  should  give  it  back  to  you."  Martinus  thought  that  he  had  found  a  very 
good  opportunity  of  confounding  his  rival.  But  this  was  not  so  at  all.  Bul- 
garus restored  the  marriage  portion  without  hesitation,  to  the  great  disappoint- 
ment of  Martinus.  Thenceforth  the  opinion  of  the  latter  prevailed  in  practice, 
for  the  disinterestedness  of  Bulgarus  found  few  imitators;  and  we  must  indeed 
admit  that  the  object  of  the  marriage  portion  is  to  provide  for  the  mainte- 
nance of  children.    Cf.  the  Edict  of  1456  as  regards  Provence. 

2  The  reversion  of  the  old  law  took  place  "ipso  jure"  in  the  South  as  well 
as  the  North;  at  Rome  the  "pater"  only  had  an  action  for  the  restoration  of 
the  marriage  portion  by  succession  in  the  direct  line.  The  reversion  belonged 
not  only  to  the  paternal  ascendants,  but  to  the  maternal  ascendants,  and  some- 
times to'- every  relative;  it  was  applied  to  every  gift,  and  not  merely  to  the 
marriage  portion.  If  the  donee  had  children,  the  reversion  did  not  take  place; 
this  was  not  so  in  the  case  of  marriage  portion  by  succession  in  the  direct  line. 
We  can  see  how  the  reversion  differed  from  the  Roman  institution  that  must 
have  served  as  its  prototyi^e.  Judicial  law  saw  in  these  differences  happy 
innovations  and  invoked  the  not  very  serious  reason  given  by  Pomponius, 
Dig.,  23,  3,  6,  in  order  to  justify  the  Roman  rule,  "  Ne  et  filia)  amissa;  et  pecuniae 
damnum  sentiret."  Beaumanoir  reproduced  it:  "One  is  more  easily  recon- 
ciled to  one  loss  than  to  two,"  says  he,  "and  one  must  encourage  gifts  for  the 
benefit  of  children";  he  states  that  there  were  controversies  as  to  the  existence 
of  the  reversion  (14,  23).    Cf.  Ficker,  III,  588;  Argou,  II,  22. 

'  Excepting  for  the  mortgage  over  the  marriage  portion,  which  the  wife 
of  the  donee  had,  Civil  Code,  951. 

^  Perhaps  the  reversion  to  the  stock,  of  personal  belongings  in  the  collat- 
eral succession,  was  the  decisive  analogy  which  directed  the  jurisconsults  of 
the  countries  of  Customs.  Perhaps  they  should  have  made  of  the  reversion 
a  method  of  succession  in  order  to  avoid  the  difficulties  which  would  have 
resulted  from  the  restoring  of  ownership  carried  out  by  the  donee  in  accord- 

647 


§  458]  INTESTATE  SUCCESSION,  GR.A.TUITOUS  CONVEYANCES  [Chap.  IV 

took  back  the  property  which  had  been  giv^en  if  he  found  it  still 
in  the  hands  of  the  donee  and  in  the  same  condition  as  when 
it  was  given;  conveyances,  grants  of  mortgages  and  servitudes, 
could  be  set  up  against  him,  as  against  every  heir;  and,  as  every 
heir  does,  he  contributed  to  the  payment  of  debts;  his  right  only 
affected  the  immovables  which  were  personal  belongings,  and  in 
order  to  exercise  this  right  he  had  to  accept  the  inheritance;  all 
the  more  did  he  have  to  be  called  upon  to  collect  it  (which  ex- 
cluded relatives  of  an  illegitimate  child). ^  —  AboHshed  by  the 
Law  of  the  17th  Nivose  of  the  year  III,  reversion  was  admitted 
again  by  the  Civil  Code,  Art.  747,  under  its  customary  form, 
that  is  to  say,  by  way  of  an  anomalous  succession.^ 

§  459.  Collaterals.^  —  The  system  of  succession  as  affecting  col- 
laterals can  be  summed  up  for  countries  of  written  law  in  the 
following  principle:  The  nearest  relative  of  the  deceased  is  pre- 
ferred to  the  furthest  removed,  excepting  for  the  application  of 
the  privilege  of  the  double  tie  and  representation.  The  same 
rules  apply  in  countries  of  Customs  for  movables  and  acquests, 
but  they  are  not  applied  exactly  to  personal  belongings,  as  we 
shall  see. 

§  460.  The  Sams.  —  (A)  Nearest  in  Degree.^  This  rule  met 
with  so  many  obstacles  that  it  passed  almost  into   the  condi- 

ance  with  the  complicated  proceedings  of  disseisin-seisin;  it  is  obvious  that 
these  proceedings  were  inconsistent  with  the  revocation  of  the  right  of  the 
donee,  "ipso  jure."  In  countries  of  written  law  the  question  of  the  transfer  of 
ownership  was  more  simple. 

1  Loysel,  333  (hihl.) ; see Fer Here,  Guyot,  etc.;  Pothier,  "Don.,"  3,  4;  "Succ," 
2,  3. 

2  Cf.  Civil  Code,  Art.  747,  766,  351,  352.  —  Reversion  by  agreement, 
ibid.,  951,  952. 

^  Although  the  collaterals  have  always  been  excluded  by  the  descendants 
from  the  ordinary  succession,  this  was  not  so  with  regard  to  the  right  to  the 
"  Wergeld":  a  part  of  it  was  reserved  for  them,  because  they  assisted  in  taking 
vengeance  for  the  death  of  their  relative:  Brunner,  "Z.  S.  S.,"  1882,  "G.  A.," 
1,  and  "D.R.G.,"II,  136.  Bri^z,  p.  670:  at  Tournay,  the  "honorable reparation" 
for  homicide  all  goes  to  the  eldest  son,  whereas  the  "profitable  reparation" 
(pecuniary)  is  equally  divided  among  the  children.  —  Conversely,  the  suc- 
cession of  collaterals  was  not  organized  among  the  Franks,  —  at  least,  in 
the  case  of  land,  — before  the  Edict  of  Chilperic;  the  land  was  redistributed 
among  the  "vicini"  in  conformity  with  the  system  of  collective  ownership 
which  had  continued  to  exist  where  the  Franks  were  found  to  be  grouped 
together  in  "vici"  {Heusler,  II,  575;  Schroeder,  320),  a  system  destined  to 
disappear  rapidly  when  it  came  in  contact  with  the  Romans:  Dareste,  "Nouv. 
Et.,"  pp.  304,  324,  90,  343;  post,  II,  179,  196;  Margais,  "Par.  Succ.  en  Dr. 
Mus.,"  1899;  "R.de  Leg.,"  Ill,  54.  —  C/.  "Succession  to  the  Throne":  "Ass. 
de  Jer.,"  II,  395,  ed.  B. 

*  The  reckoning  of  degrees  of  relationship  was  made  in  certain  Customs 
according  to  the  Roman  laws,  and  in  others  according  to  the  Canon  law;  but 
in  the  end  the  Roman  method  prevailed  almost  everywhere.  —  "Ass.  de 
J6r.,"  "C.  des  B.,"  53  et  seq. 

648 


Topic  2]    INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS   [§  460 

tion  of  an  exception.^ —  (a)  "  Paterna  paternis,  materna  maternis,"^ 
and  by  applying  this  maxim  the  paternal  personal  belongings  go 
to  the  collateral  who  is  furthest  removed  in  the  paternal  line 
rather  than  to  the  nearest  collateral  or  ascendant  in  the  maternal 
line,  and  vice  versa.  One  collateral  thus  could  not  prevail  over 
another  by  reason  of  his  being  of  a  nearer  degree,  excepting  if 
they  were  both  in  the  same  line.^  —  (6)  As  a  general  thing,  resort 
to  the  origin  of  possessions  is  compulsory  and  prevents  taking 
into  account  the  proximity  of  the  degree.  In  this  respect  the 
Customs  vary  a  great  deal:  ordinarily,  three  principal  systems  are 
to  be  distinguished:  1st.  According  to  Customs  relating  to  the 
stock  ("Tours,"  "Mantes,"  "Reims,"  etc.),^  the  personal  be- 
longing passes  to  the  descendants  of  the  first  person  who  ac- 
quired it;  it  returns  to  the  stock  from  which  it  has  been  detached.^ 
As  many  successions  as  there  were  personal  belongings  having  a 
distinct  origin,  together  with  very  complicated  inquiries  as  to 
the  genealogy  of  each  one,  —  such  were  the  vices  of  this  sys- 
tem, which  system  was  the  most  faithful  to  the  conception  of 
the  conservation  of  possessions  in  the  family.  2d.  According  to 
Customs  of  the  side  and  line  ("Paris,"  "Meaux,"  and  the  majority 

1  See  "Privilege  of  the  Male  Line";  Ficker,  II,  257  (one-third  to  the  women)- 

2  In  Friesland,  in  Switzerland  and  at  Hamburg  partition  by  halves  of  al^ 
the  property  among  both  hnes,  as  is  done  according  to  the  Civil  Code,  733 ; 
Britz,  681,  686. 

^  Competition  between  ascendants  and  brothers  and  sisters.  (A)  Countries  of 
uritten  law.  Brothers  and  sisters  of  tlie  whole  blood  compete  with  ascend- 
ants. —  (B)  Countries  of  Customs.  The  Customs  are  divided.  Generally 
brothers  and  sisters  are  excluded  by  ascendants  from  the  succession  to  mov- 
ables and  acquests  and  exclude  the  ascendants  from  the  succession  to  personal 
belongings:  Argou,  II,  22;  Stobbe,  V,  108.  Customs  according  to  which  the 
mother  is  excluded  by  the  father,  and  even  by  the  brothers  and  sisters; 
brothers  and  sisters  of  emancipated  children  exclude  the  father  and  mother; 
brothers  and  sisters  living  in  a  community:  at  the  death  of  one  of  them  the 
succession  goes  to  the  community,  etc.;  Heusler,  II,  185  {cf.  608):  if  the  ties 
of  blood  prevail  the  father  and  mother  are  preferred;  on  the  contrary,  the 
intcrestof  the  house  may  give  the  brothers  and  sisters  the  ascendancy :  "Sal.," 
69;  "Rib.,"  56;  "Alam.,"  95;  "Fris.,"  19;  "Sachsensp.,"  I,  17  (preference 
of  the  father  and  mother);  "Burg.,"  51,  2;  78,  1  (preference  of  brothers  in 
the  succession  of  the  brother  who  has  partitioned  the  family  possessions 
with  his  father);  Fertile,  IV,  70;  Lehr,  "Dr.  Scandin.,"  382;  "Dr.  Russe,"  I, 
414;  Britz,  078;  Law  of  Niv.,  year  II;  Civil  Code,  748.  —  "Ass.  de  Jerus.,"  II, 
284,  ed.  B.;  "Siete  Part.,"  7,  13,  4. 

*  Chnisemartin,  404:  "The  property  should  go  whence  it  came."  "Jus 
recadentia?,  revolutionis,"  "Ruckfallsrecht."  Thus  the  family  community  is 
reconstituted:  Blackstone,  II,  14;  Ficker,  III,  463;  Lecoq,  "Qu.,"  87;  Lauriere, 
on  "Paris,"  329;  Britz,  682. 

^  Stock,  trunk,  root,  branches,  bough,  — so  many  expressions  drawn  from 
the  use  of  genealogical  trees.  The  lineage  is  a  series  of  relatives,  and  side  and 
line  are  understood  to  apply  to  the  paternal  or  maternal  side,  and,  in  one  of  these 
sides,  to  the  line  to  which  the  first  acquirer  belongs:  Ficker,  II,  188;  HI. 

649 


§  460]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

of  the  others),  the  personal  belonging  goes  to  any  relatives  of  the 
first  person  acquiring  it,  descendants  first  of  all,  and  if  there  are 
none,  then  to  collaterals;  if  the  first  person  acquiring  it  has  left  no 
descendants  the  personal  belonging  goes  to  the  family  of  his  brother 
or  of  his  uncle,  —  to  an  inheritance  to  which  it  had  never  be- 
longed, however.  This  system,  which  was  a  little  more  simple 
than  the  preceding  one,  was  still  very  complicated,  3d.  The 
Customs  of  the  side  only  ("Chartres,"  etc.)  gave  the  nearest 
paternal  relative  of  the  deceased  all  the  paternal  personal  be- 
longings, and  to  the  nearest  maternal  relative  all  the  maternal 
personal  belongings.  Thus  the  difficulties  of  application  were 
done  away  with,  but  at  the  -risk  of  despoiling  one  family  for  the 
benefit  of  the  other;  thus  In  the  paternal  line  are  found  the  rela- 
tives of  the  grandfather  and  the  grandmother;  the  personal  be- 
longings coming  from  the  grandfather  may  pass  to  the  relatives 
of  the  grandmother,  if  they  are  nearer  related  to  the  deceased.^ 

§  461.  The  Same.  —  (B)  Privilege  of  the  Double  Tie.^  This 
Roman  prerogative,  which  was  based  upon  the  conception  of  pre- 
sumed affection,  gave  the  brothers  and  sisters  of  the  whole  blood 
the  entire  succession  in  preference  to  half-brothers,  that  is  to  say, 
descendants  of  the  same  blood  or  descendants  of  the  same 
mother.  Certain  of  the  Customs  applied  this  rule  to  successions 
to  movables  and  acquests,  and  it  was  sometimes  even  extended 
to  collaterals  other  than  brothers  and  sisters.^  With  relation  to 
personal  belongings  the  privilege  of  the  double  tie  could  not  be 
conceived  of;  but  the  brothers  or  relatives  of  the  whole  blood  took 
in  both  lines,  because  they  belonged  to  both  lines;  descendants  of 
the  same  blood  or  descendants  of  the  same  mother  only  took  a 
share  in  one  line,  the  one  to  which  they  belonged. 

§  462.   The'  Same.  —  (C)  Representation  in  the  collateral  line 

1  Argou,  loc.  cit.;  Britz,  681  (Antwerp,  Ostend,  etc.). 

2  Guyne,  "De  la  Repres.  et  du  Double  Lien,"  1779;  Mignot,  id.,  1777; 
Serres,  "Inst.,"  p.  297.  —  Law  of  the  17  Niv.,  year  II,  Art.  89  (suppression); 
Civil  Code,  733;  Britz,  684. 

_^  The  Customs  are  very  much  divided;  some  do  not  admit  it:  "Paris"  (id., 
Civil  Code,  733),  "Melun,"  "Sens";  others  only  allow  brothers  and  sisters 
to  enjoy  it:  "Saint-Quentin,"  "Dreux,"  and  nephews  as  well,  " Orleans ";  there 
are  some  that  apply  it  without  Hmit:  "Blois,"  "Montargis";  Loysel,  335; 
Pasquier,  "Inst.,"  495;  Argou,  II,  23;  Britz,  684.  —  Same  hesitation  in  for- 
eign countries:  Brunner,  "Erbfolg.,"  28;  Pollock  and  Maitland,  II,  300  (bibl.). 
The  English  common  law  absolutely  excludes  relatives  of  the  half  blood,  even 
from  the  succession  to  personal  belongings;  but  in  the  time  of  Bracton,  fo.  65, 
6,  they  disputed:  Blackstone,  II,  14;  Chaisemartin,  403;  "Sachsensp.,"  I,  3;  II, 
20;  "Schwabensp.,".3;  Stobbe,  V,  116;  Heiisler,  II,  612;  Picker,  III,  444,  213; 
Lattes,  " Dir.  Cong.  Lomb.,"  p.  262.—  Also,  Loysel,  335;  " T.  A.  C,  Bret.,"  p.  479. 

650 


Topic  2]    INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS    [§  4G3 

was  rejected  by  certain  Customs  and  admitted  in  others,  and  then 
it  was  sometimes  admitted  to  infinity  and  sometimes  within  limits 
fixed  by  law,  —  that  is  to  say,  to  nephews  and  nieces,  following 
the  Roman  law.  "  The  more  the  Customs  advanced  towards  the 
North,"  says  Lebrun,  3,  5,  2,  3,  "the  more  were  they  hostile  to 
the  right  of  representation." 

§  463.  The  Same.  —  (D)  Devolution.  Collaterals  to  infinity 
inherited,  no  matter  of  what  degree  they  were,  in  the  last  stages 
of  the  Customary  law,  and  even,  according  to  the  Law  of  the  17th 
Nivose,  year  11.^  But  in  old  times  relationship  was  limited  in  its 
effects  over  inheritance;-  the  barbarian  laws  and  certain  of  the 
Customs,  being  connected  with  the  Roman  or  Germanic  methods 
of  computation,  refused  the  right  to  inherit  to  those  beyond  the 
5th,  6th  and  7th  degrees,  and  sometimes  even  the  10th  degree. 
Sometimes,  even,  the  clauses  in  feudal  grants  or  enfranchise- 
ments of  serfs,  restricted  the  right  of  inheritance  still  more.  The 
Civil  Code,  in  Article  755,  declares  that  beyond  the  12th  degree 
relatives  do  not  inherit.  This  is  a  solution  by  way  of  compromise 
between  the  system  of  presumed  affection  and  that  of  the  rights 
of  relationship.  —  If  there  are  no  relatives  in  one  line  the  personal 
belongings  which  would  have  reverted  to  the  lord  belonged  first 
of  all  to  him;^  it  is  only  in  the  sixteenth  century  that  devolution 
from  one  line  to  another,  or,  rather,  the  passing  of  personal  be- 
longings to  the  heir  of  movables  and  acquests,  was  admitted.'* 
"Where  one  branch  fails  the  lineage  inherits,"  Loysel,  342.  "Fis- 
cus  post  omnes  etiam  in  centesimo  gradu." 

»  "Berry,"  19,  1;  Law  of  17  Niv.,  year  II,  Art.  75. 

■  The  limitation  of  relationsliip  does  not  very  well  agree  with  family  soli- 
darity; but  originally  it  may  be  that  there  was  no  succession  outside  of  the 
circle  of  the  "sui,"  which  would  give  three  degrees  (sons,  brothers,  nephews). 
The  other  restrictions  are  drawn  from  the  Roman  law:  "Thur.,"  34;  "Rib.," 
56,  3,  etc.  (5th  degree);  "Sal.,"  44,  9  (Gth  degree);  "Wis.,"  4,  1,  7;  4,  2,  11; 
"Bai.,"  15,  10;  "Roth.,"  1.53;  "Schwaben.sp.,"  14;  Gratian,  c.  2,  C,  35,  q.  5 
(7th  degree);  "Sachsensp.,"  I,  33;  Beaumanoir,  14,  3  (4th  degree).  —  The 
10th  degree  is  only  the  5th  canonic  degree  reckoned  in  the  Roman  way: 
"Inst.  Just.,"  3,  5,  in  fine;  Glanville,  VII,  1;  Bracton,  fo.  67,  372  b.  The  limi- 
tation of  Hilationship  is  in  accord  with  the  custom  of  representing  it  by  means 
of  the  human  body,  and  not  by  using  genealogical  trees:  Chaisemartin,  387; 
Brunner,  44,  37;  Heusler,  II,  591;  Schroeder,  319;  Stobbe,  §  287;  Pollock  and 
Maitland,  II,  305;  Picker,  I,  475;  Valroger,  "Celtes,"  p.  468  (second  cousins); 
Dareste,  "Etudes,"  329. 

«  Desmares,  184;  "Cout.  Not.,"  92;  Lecoq,  "Q.,"  87;  Boutaric,  I,  78; 
Masuer,  33.  Sometimes  the  same  rule  is  applied  to  the  succession  to  the 
movables:  "Ohm,"  II,  787,  418;  CI.  Liger,  431;  Zeeland,  "Z.S.S.,"  III,  "G.  A.," 
31;  Masuer,  32,  8.    Exclusion  of  the  ascendants  by  the  Treasurer. 

*  Dumoulin,  on  J.  Lecoq,  S7;  "Paris,  N  C,"  330;  Loysel,  342;  Lauribre,  on 
"Paris,"  330;  Glasson,  VII,  477;  Picker,  III,  464. 

651 


§  464]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

§  404.  The  Surviving  Spouse.^  —  (A)  Coimtries  of  Written  Lnw.^ 
If  there  are  no  lawful  relatives  the  surviving  spouse  succeeds  to 
the  predeceased  spouse;  if  there  are  relatives,  he  only  has  a 
right  to  the  poor  man's  fourth  in  conformity  with  the  "Authentic," 
"Praeterea":  the  surviving  spouse  who  is  poor  takes  one-quarter 
of  the  inheritance  of  the  predeceased  spouse  who  is  rich,  when 
there  are  at  least  three  children;  the  share  of  a  male,  if  there  are 
more  children.  This  quarter  is  usufruct  if  there  are  children  and 
ownership  if  there  are  none.  In  the  eighteenth  century  courts 
restricted  the  right  of  the  surviving  spouse  to  a  mere  allowance 
for  life,  even  when  there  were  collaterals. 

§  465.  The  Same.  —  (B)  Countries  of  Customs.^  Originally, 
if  no  family  survived,  the  Treasury  was  preferred  before  the  sur- 
viving spouse,  who  had  to  be  contented  with  the  portion  of  the 
survivor  which  was  established  for  his  benefit.  But,  when  atten- 
tion was  paid  to  the  notion  of  the  presumed  affection  of  the  de- 
ceased in  order  to  regulate  his  succession,  under  the  influence  of 
the  Roman  ideas,  it  led  to  a  recognition  of  a  reciprocal  right  of 
succession  between  the  spouses,  giving  a  preference  over  that  of  the 
lord  or  the  Treasury,^  and  which  was  of  the  same  nature  as  that  of 
relatives.^  The  Law  of  November  22  to  December  1,  1790,  gen- 
eralized the  succession  of  the  surviving  spouse  if  there  were  no 
relatives  living.^ 

1  Post:  "Rights  of  the  Widow"  (bibl.) ;  Guyot,  see  " Quarte" ;  Sevres,  "Inst.," 
Ill,  10,  3;  Louet,  "F.,"  22;  "V.,"  13,  etc.  —  Viollet,  853;  Stobbe,  §  294;  Fertile, 
§  127.  — Dareste,  "Nouv.  Et.,"  pp.  304-327;  "Z.S.S.,"  1898,  "G.  A.,"  107; 
Ficker,  IV. 

2  Roman  law:  "  Bon.  possessio  unde  vir  et  uxor";  "Cod.  Theod.,"  5,  1,  9; 
"Cod.  Just.," 6, 18,  1  (Authentic  "prseterea");  "Novella,"  53,6;  22,  14;  117,  5; 
"Novella,"  106  of  Leo.  —  "Siete  Part.,"  VII,  13,  7. 

5  Loysel,  340:  "The  wife  does  not  succeed  to  the  husband,  nor  the  husband 
to  the  wife";  Bacquet,  "Aubaine,"  34;  "Norm.,"  146;  "Maine,"  286.  —  Ordi- 
narily, the  Customs  remain  silent,  which  proves  that  they  know  nothing  of 
succession  between  spouses:  "Ass.  de  Jerus.,"  "C.  des  B.,"  186:  "No  man  is 
his  own  heir  at  his  death,  as  is  his  wife."  She  excludes,  says  this  text,  invok- 
ing "  Genesis,"  ii,  24  ("Vir  et  uxor  unum  corpus"),  even  the  sons  and  daughters 
and  fathers  and  mothers  and  brothers  and  sisters.  But  it  seems  that  she  only 
acquires  a  limited  ownership.  Cf.  c.  187.  In  the  same  way  at  Liege,  by  virtue 
of  the  marriage  agreement,  the  surviving  spouse  takes  all  the  possessions  left 
by  the  other;  but  the  right  of  devolution  prevents  his  abusing  this  favor  to 
the  prejudice  of  the  children:  "Z.  S.  S.,"  loc.  cit.  (one-half  to  the  widow,  one- 
third  to  the  dead). 

"  "Berry,"  19,  8;  "Poitou,"  299;  Louet,  "F.,"  22  (Order  of  1582).  For- 
feiture in  case  of  the  wife's  adultery  and  of  a  separate  maintenance  decreed 
against  the  husband. 

*  Pothier,  "Cout.  d'Orleans,"  Introduction  to  Vol.  XVII,  no.  35:  the  spouse 
has  the  seisin.  Contra:  Civil  Code,  767;  Britz,  693,  690:  he  is  the  necessary 
heir  (Flanders). 

6  I,  4.    Cf.  Law  of  March  9,  1891. 

652 


Topic  2]    INTESTATE  SUCCESSION.  .  VARIOUS  KINDS  OF  HEIRS   [§  46G 

§  466.  Irregular  Successions.  —  In  a  strict  system  of  individual 
ownership  ^  the  possessions  of  a  person  who  has  died  without  rela- 
tives capable  of  succeeding  him  should  be  "res  nuUius,"  which 
could  be  seized  upon  by  the  first  corner.^  But  this  rather  imprac- 
tical solution  was  discarded  from  the  time  of  the  Frankish  period ;  ^ 
the  royal  Treasurer  appropriates  the  possessions  in  case  of  the 
failure  of  heirs,  no  doubt  following  the  example  of  what  took  place 
at  Rome^  and  because  of  the  royal  patronage  over  individuals 
who  had  no  family.  The  right  resulting  from  failure  of  heirs  ^ 
which  belonged  to  the  lords-justices  (lay  or  ecclesiastical,  indi- 
viduals or  towns),  passed  away  as  a  consequence  of  the  feudal 
movement,  and  the  king  only  kept  it  in  those  localities  where  he 
himself  administered  justice.  Alongside  of  this  right,^  and  acting 
almost  as  different  interpretations  of  it,  are  the  rights  of  succes- 
sion to  the  estate  of  deceased  aliens  and  of  succession  to  the  estate 
of  an  intestate   bastard,^   and   even  the  right    of    confiscation.^ 

1  Cf.  Rights  of  the  "vicini":  Heusler,  II,  616. 

2  At  Rome,  usufruct  "pro  herede." 

3  "Sal.,"  44,  10;  60,  2;  62:  "Fris.,"  19,  2;  "Bai.,"  15,  10,  4;  "Roth.,"  223: 
Brunner,  "D.  R.  G.,"  II,  48,  71;  Zeumer,  "Forsch.  D.  Gesch." 

*  Girard,  "Man.,"  p.  878. 

^  The  heirs  could  at  first  only  claim  successions  that  were  vacant  within  a 
year  and  a  day  ("Ass.  de  Jer.,"  "C.  des  B.,"  196),  then  during  10  and  30  years: 
"T.  A.  C.,  Norm.,"  21,  2;  "Sachsensp.,"  I,  28;  "Montpellier,"  114.  As  to  the 
prescription  running  against  the  petition  of  the  heir,  see  Ferrikre,  Guyot,  — • 
"Abr.  de  C.  des  B.,"  34  et  seq. 

*  Administration  of  vacant  successions  by  the  public  officers,  but  only 
since  the  twelfth  century,  for  up  to  that  time  they  are  simply  conferred  upon 
the  lord:  "Fribourg  en  Beam,"  4;  " Saint- Antoine  en  Rouergue,"  1144; 
"Albi,"  20.  The  custodians  pay  the  debts:  "L.  d.  Droiz,"  897  (appointment 
of  a  "curator"  by  law  if  the  creditors  ask  for  it).  Details  in  R.  Caillemer, 
p.  .58.  Cj.  in  the  existing  law  the  distinction  between  a  vacant  succession 
which  nobody  claims,  not  even  the  State,  and  for  which  a  "curator"  is  named, 
and  the  succession  to  which  the  heirs  have  failed,  which  escheats  to  the  State: 
Guyot,  Ferriere,  see  "Curateur  k  Succ.  vacante."  In  fact,  there  is  a  vacancy 
as  soon  as  the  heirs  of  the  first  degree  have  renounced:  Fothier,  Introduction 
to  Vol.  XVII,  "Gout.  d'Orleans,"  no.  67. 

'  One  does  not  find  in  failure  of  heirs  the  penal  character  which  distinguishes 
confiscation,  and  from  this  difference,  which  was  scarcely  perceptible  originally, 
there  resulted  in  time  the  two  opposite  systems:  Blnckstone,  II,  16,  18. 

8  With  the  confiscation  of  the  possessions  of  a  man  condemned  to  death  or 
to  banishment  will  naturally  bo  connected,  although  there  is  no  penal  con- 
demnation, that  confiscation  which  affects  the  succession  of  usurers  ("T.  A.  C., 
Norm.,"  49,  Dauphin6,  Savoy,  for  example  "Evian,"  4;  "Fribourg  en  Uecht," 
57),  of  suicides,  persons  dying  intestate  or  unconfessed  ("desperati"),  both 
guilty  towards  the  State  or  the  Church.  The  unconfessed:  "Summa  Norm.," 
20;  "Et.  de  St.  Louis,"  I,  93;  Boutanc,  I,  39;  Du  Cange,  see  "Intest."  The 
intestate  is  only  a  sort  of  unconfessed  man;  he  has  not  made  any  provi- 
sions for  the  salvation  of  his  soul;  his  succession  was  first  of  all  confiscated, 
and  when  legislation  became  miklcr  they  limited  themselves  to  distributing 
his  property  for  pious  uses:  GlanviUe,  VII,  16.  The  "intcstia"  of  Roussillon 
are  probably  only  a  relic  of  persons  in  mortmain.  As  to  suicides,  cf.  Loysel, 
837:  "The  man  who  puts  himself  to  death  in  despair  has  his  property  confis- 

653 


§  466]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Ciiap.  IV 

The  prerogative  of  the  lord-justice  found  itself  limited  in  two 
directions:  1st.  As  a  general  thing,  it  only  aflFected  allodial  holdings 
and  movables,  because  fiefs  and  copyholds  reverted  to  the  lord 
who  had  granted  them;  these  kinds  of  possessions  were  never  un- 
occupied and  without  an  owner. ^  2d.  Successions  resulting  from 
failure  of  heirs  were  often  divided  between  the  lord  and  the  chari- 
table organizations;  ^  they  were  appropriated  for  public  charges, 
especially  for  the  succor  of  the  poor,  as  an  accidental  and  un- 
foreseen resource  which  humanity  prescribed  should  be  used  to 
benefit  those  who  had  been  disinherited  by  fortune.  If  the  lord- 
justice  divided  the  inheritance  with  the  poor,  all  the  more  should 
he  indemnify  the  creditors  of  the  inheritance,  at  least  within  the 
limits  of  the  assets  which  he  collected  ("intra  vires ").^  Such  was 
the  general  custom  based  upon  equity;  but  it  was  rather  difficult 
to  justify  from  the  strict  legal  point  of  view,  because  the  lord 
seems  rather  like  a  grantee  by  some  special  right  or  a  privileged 
occupier  than  an  heir  ^  {cf.  Law  of  Nov.  22,  —  Dec.  1,  1790,  1,3). 
§  467.  The  Revolutionary  Law  began  by  abolishing  the  ine- 
qualities which  resulted  from  the  right  to  the  preference  of  males 
and  the  right  of  primogeniture  (nobles'  possessions,  D.  March  15, 

cated  by  his  lord."  His  movables,  at  least,  were  confiscated,  and  sometimes 
his  immovables  themselves;  and  CI.  Liger,  Art.  1435,  establishes  the  appU- 
cation  of  the  archaic  right  of  ravaging  to  the  lands  of  the  suicide.  In  time 
distinctions  were  drawn  according  as  to  whether  the  suicide  was  conscious  or 
unconscious  of  his  act,  and  whether  the  suicide  did  or  did  not  take  place  in 
order  to  escape  a  capital  punishment.  Cf.  Dig.,  48,  21;  "Summa  Norm.," 
20;  "Et.  deSt.  Louis,"  I,  92;  "T.  A.  C,  Bret.,"  296;  "A  C,  Bord.,"  41;  Beau- 
manoir,  69,  12  (Table,  see  "Suicide");  "Gr.  Gout.,"  p.  664;  "Ohm,"  I, 
442,  6,  etc.;  Boutaric,  I,  39;  II,  15  (rejects  confiscation);  Bracton,  II,  504 
("felonia  deseipso");  "Fleta,"  I,  Bi;  Britton,  I,  7.  Diversities  in  German  law : 
"Sachsensp.,"  II,  31,  1;  Brunnenmeistcr,  "Quell,  d.  Bambergensis,"  p.  93. 
Rights  of  the  executioner  over  the  condemned  whom  he  executes:  "Gr. 
Gout.,"  657.  As  to  "Hagestolzen,"  or  unmarried  men,  cf.  "Z.  S.  S.,"  1901, 
"G.  A.,"  1.    Succession  of  emigrants,  cf.  "Lois  civiles  interm." 

1  Glamille  calls  the  lord  "ultimus  heres":  Glasson,  VII,  463;  "T.  A.  C., 
Norm.,"  88  et  seq.;  "Schwabensp.,"  I,  32  et  seq.;  159. 

2  Details  and  texts  in  R.  Caillemer,  p.  75;  Britz,  691.  In  England  the  suc- 
cession of  the  intestate  was  in  the  end  distributed  under  the  supervision  of  the 
Ghurch:  Pollock  and  Maitland,  II,  356. 

^  Cf.  in  R.  Caillemer,  p.  119,  the  discussion  of  this  question:  "Roth.,"  223: 
the  king  does  not  pay  debts;  Fertile,  IV,  134,  127;  "Ohm,"  II,  328.  Cf.  to 
the  contrary:  "Lunas,"  7;  "Riom,"  5;  "Aries,"  83,  etc. 

*  We  may  observe  a  tendency  of  the  old  law  to  confer  the  succession  of  a 
person  upon  the  body  or  the  estabhshment  to  which  that  person  belongs;  for 
example,  the  succession  of  a  monk  to  his  monastery,  and  that  of  a  patient  to 
the  hospital  where  he  was  cared  for.  Viollet,  487 :  the  Charite  of  Lyons  adopted 
its  orphans.  Law  of  the  15th  Pluv.,  year  XIII,  Art.  8.  The  Vestry  Board  re- 
ceives the  possessions  of  the  priest.  The  possessions  of  (secular)  ecclesiastics 
belonged  first  of  all  to  the  Church;  later  on,  in  the  fourteenth  century,  their 
relatives  succeeded  to  them:  Loysel,  343  et  seq. 

654 


Topic  2]   INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS   [§  467 

1790;  plebeians'  possessions,  D.  April  15,  1791,  which  were  passed 
in  spite  of  the  protestations  of  the  deputies  from  Normandy  and 
Beam).  In  the  countries  of  written  law  the  Novella,  118,  does 
not  recognize  the  Customary  privileges,  but  freedom  to  make  a  will 
allowed  their  re-establishment;  this  freedom  was  attacked,  and  if 
the  opposition  of  the  Romanists  and  the  deputies  from  the  South 
for  a  time  prevented  the  reform  from  coming  to  a  head,  on  the 
25th  of  October,  1792,  the  Convention  did  away  with  trust-entails 
and  renunciations  to  future  successions;  and  on  March  17,  1793, 
it  abolished  the  power  to  leave  by  will  to  the  direct  line;  the 
Decree  of  the  5-12  Brum.,  year  II,  and  the  I7th  Niv.,  year  II, 
restricted  within  the  narrowest  limits  the  portion  which  could  be 
disposed  of. 

This  last  law,  which  can  be  called  the  "  Succession  Code  of  the 
Convention,"  contains  two  other  series  of  provisions: 

(a)  Devises  aiming  to  maintain  the  old  rules  were  annulled, 
dating  from  July  14,  1789,  and  partitions  of  successions  which 
had  vested  since  that  date  were  to  be  remade  according  to  the 
new  principles.  We  see  that  the  Law  of  Nivose,  like  that  of 
Brumaire,  also,  had  a  retroactive  effect.  At  the  same  time  that 
they  proclaimed  in  the  Declaration  of  the  Rights  of  Man  that 
the  retroactiveness  of  laws  was  a  crime,  the  members  of  the  Con- 
vention applied  it  to  matters  of  succession,  either  out  of  hatred  of 
the  Old  Regime  or  else  under  the  influence  of  deputies  who  were 
interested  in  this  iniquitous  measure;  they  did  not  want  for  soph- 
isms whereby  to  justify  themselves  in  their  own  eyes;  they  pre- 
tended that,  dating  from  1789,  equality  had  been  established,  and 
that  all  they  did  was  to  apply  a  pre-existing  principle.  This  was 
the  distinction  of  a  casuist,  which  did  not  prevent  the  results 
of  this  law  from  being  deplorable;  they  had  to  repeal  it  in  the 
year  1 11.^ 

(6)  In  the  devolution  of  succession  they  considered  neither  the 
nature  nor  the  origin  of  possessions;  they  formed  but  one  single 
mass,  in  the  same  way  as  the  Roman  legislation,  which  simplified 
their  transmission  a  great  deal.  The  right  of  inheritance  is  con- 
ferred first  upon  the  descendants,  who  succeed  in  equal  portions, 
either  "per  capita"  or  by  means  of  representation;  it  is  forbidden 
to  favor  any  of  them,  and  the  special  gifts  must  be  shared  alike, 

1  Laws  of  the  5th  Flor.,  3d  Fruct.,  year  III;  3d  Vend.,  year  IV;  18th  Pluv., 
year  V;  Glasson,  "R6f.  Soc,"  1889,  II,  217;  Sagnac,  pp.  234,  325;  Aron, 
"N.  R.H.,"  1901,618. 

655 


§  4C)7]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEY.ANCES  [Chap.  IV 

even  by  those  who  decline.  Contrary  to  the  axiom  of  the 
Customary  law,  "Bastards  do  not  succeed,"  the  Laws  of  June 
4,  1793,  and  of  5-12  Brumaire,  year  II,  had  given  to  mere  natural 
children  the  same  rights  of  succession  as  to  legitimate  children, 
and  to  children  born  of  an  adulteress  one-third  of  these  rights 
(with  the  retroactive  efTect  abolished  by  the  Laws  of  the  15th 
Thermidor  and  the  3d  Vend.,  year  IV).^  If  there  are  no  descend- 
ants, the  inlieritance  is  divided  into  two  equal  parts,  one  for  the 
paternal  line,  the  other  for  the  maternal  line;  and  if  there  is  any 
occasion  for  it,  this  division  is  followed  by  a  redivision.  In  each 
line  they  do  not  seek,  as  would  be  done  under  a  system  of  succes- 
sion based  upon  presumed  affection,  to  ascertain  who  is  the  near- 
est relative  of  the  deceased,  but  rather  who  are  the  relatives  who 
are  descendants  of  the  nearest  ascendants  of  the  deceased;  in  this 
way  they  finally  establish  a  series  of  lines  or  groups  of  kindred, 
that  of  the  father  and  that  of  the  grandfather,  etc.,  which  are 
called  successively  to  the  inheritance.  This  unexpected  resur- 
rection of  the  Germanic  system  of  groups  of  kindred,  which  was 
at  that  time  so  much  forgotten  in  Customary  France,  seems  to. 
be  accounted  for  by  two  causes,  —  one  which  is  rather  archaic, 
and  the  other  which  is  rather  revolutionary:  1st,  it  was  proposed, 
just  as  in  the  Customs,  to  restore  the  possessions  as  nearly  as 
could  be  to  the  line  or  the  stock  which  had  provided  them;  2d,  this 
proceeding  had  the  advantage  of  dividing  the  property  among  a 
great  number  of  persons,  for  it  must  often  have  happened  that 
each  group  of  kindred  contained  many  members.  In  each  group 
the  descendants  excluded  ascendants,  —  for  example,  the  brother 
is  preferred  to  the  father;  this  privilege  for  the  younger  genera- 
tions accords  with  the  old  principle  that  "  Personal  belongings  do 
not  ascend,"  but  perhaps  in  establishing  it,  it  was  only  desired  to 
attach  the  classes  which  were  most  naturally  fitted  to  support  it 
to  the  new  political  system.  Representation  is  admitted  to  in- 
finity for  the  same  reason,  and  thenceforth  partition  takes  place 
by  stocks.  The  privilege  of  the  double  tie  is  abolished,  but  those 
of  the  whole  blood  have  a  share  in  each  line.  If  there  are  no  rela- 
tives (and  they  succeed  without  the  limitation  of  degree)  the  sur- 
viving spouse  is  called ;  as  well  say  that  he,  or  she,  will  hardly  ever 
succeed;  not  very  much  favored  in  this  direction,  they  are  still 
less  favored  in  that  which  concerns  the  portions  of  the  survivor, 
such  as  dower,  which  the  old  law  had  instituted  in  their  favor; 
*  Sagnac,  pp.  317,  356. 
G56 


Topic  2]    INTESTATE  SUCCESSION.     VARIOUS  KINDS  OF  HEIRS   [§  467 

the   Revolution    abolished    them.      The  State    is    the   ultimate 
heir. 

Two  motives  dominate  the  Revolutionary  legislation,  —  a  re- 
gard for  Equality,  and  the  desire  to  simplify  the  law  of  succession 
by  parceling  the  fortunes.  It  is  based  on  the  idea  which  was  so 
widespread  in  the  eighteenth  century  that  the  individual  has  no 
right  to  make  a  disposal  of  his  possessions  to  take  place  after  his 
death;  this  right  belongs  to  the  law  alone.  And  this  legislation  is 
inspired,  not  by  the  probable  wishes  of  the  deceased,  but  by  the 
political  reason.  Succession  is  not  a  sort  of  presumed  will,  the  will 
of  those  that  death  has  taken  unawares  before  they  had  made 
known  their  last  wishes;  in  theory  it  is  looked  upon  as  a  regulation 
in  the  interest  of  the  public,  regarding  the  final  disposal  of  pos- 
sessions which  have  been  abandoned  by  their  owner,  —  a  theory 
perhaps  of  a  very  momentous  nature,  because  the  State  might  take 
advantage  of  it  in  its  own  interest  to  deprive  the  relatives  who 
were  capable  of  inheriting.  But,  as  a  matter  of  fact,  they  are  far 
from  contemplating  giving  it  this  meaning;  the  State  gains  noth- 
ing; it  limits  itself  to  protecting  the  family  against  the  caprices 
of  individuals.  In  short,  the  system  established  by  the  Law  of 
Nivose  is  an  incoherent  amalgamation  of  new  ideas  and  obsolete 
principles.^ 

1  Cf.  various  opinions:  "N.  R.  H.,"  1901,  616. 


657 


§  4G8]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 


Topic  3.    Acquisition  of  Heirship  and  its  Consequences 


§  468.  The  Vesting  of  the  Succession. 

§  469.  Incapacity  to  Succeed. 

§  470.  Disinheritance. 

§  471.  Disqualification. 

§  472.  The  Role  of  the  Heir. 

§  473.  Acquirement    of    a    Title    by 

Inheritance. 
§  474.  Hereditary  Seisin. 
§  475.  Acceptance  and  Rejection. 
§  476.  The   Same.  —  (A)  Acceptance 

pure  and  simple. 


§  477.  The  Same.  —  (B)  Renunciation. 
§  478.  The  Same.  —  (C)  Time  to  make 

an  Inventory  and  deliberate. 
§  479.  The  Same.— (D)  The  privilege 

of  the  Inventory. 
§  480.  Partition  between  Co-heirs. 
§481.  Forms  of  Partition. 
§  482.  Effects  of  Partition. 
§  483.  Refunding. 
§  484.  Payment  of  Debts. 
§  485.  Separation  of  Assets. 


§  468.  The  Vesting  of  the  Succession  ^  only  takes  place  to-day 
as  a  result  of  natural  death  ("nulla  viventis  hereditas").^  But 
formerly  it  also  resulted  from  events  which  were  likened  to  death, 
and  which  one  might  be  tempted  to  term  in  a  general  way  civil 
death,  although  this  term  was  hardly  applied  excepting  to  cases 
of  criminal  condemnation  and  entering  into  religious  orders.^ 
Such  were,  in  the  very  old  law,  leprosy,'*  the  loss  of  sight,  madness,^ 
and  perhaps  the  serious  infirmities  which  accompany  old  age.® 
Absence  ^  had  not  so  radical  an  effect,  although  it  authorized  the 
handing  over  of  the  possessions  of  the  one  who  was  absent  ^ 
to  his  nearest  relatives.    In  fact,  the  law  counted  so  much  on  the 

1  Pothier,  III,  1;  Fertile,  IV,  119;  Stobbe,  §  279. 

2  "  Commorientes,"  Civil  Code,  720;  Pothier,  III,  1, 1;  Dig.,  "  de  reb.  dub.," 
9,  22;  Law  of  20  Prair.,  year  IV;  Zeijs,  "Le  Nil,"  §  7;  "Acad.  leg.  Toul.,"  187 
(Fons). 

3  Post,  "Persons,"  Loysel,  345;  Pothier,  "Pers.,"  70;  Pertile,  IV,  120.  The 
excommunicated,  "T.  A.  C,  Norm.,"  II,  3. 

*  Post,  "Persons";  "Roth.,"  176:  he  is  "tanquam  mortuus." 
»  "Prisons";  Amira,  "Erbenf.,"  151.  — C/.  "Wis.,"  3,  4,  12. 
^  Cf.  giving  up  of  possessions,  post. 

'  As  to  absence,  cf.  Ferriere,  Guyot;  ViUequez,  "R.  h.  Dr.,"  II,  209;  "Dig. 
Ital.,"  and  "Encicl.  Giur.  Ital.,"  see  "Assenza";  Stobbe,  V,  10  (bibl.);  Civil 
Code,  112  et  seq. 

*  An  absent  man  is  one  who  leaves  his  domicile  and  is  not  heard  from  any 
more.  It  is  Domicile  which  determines  the  personal  status  of  a  person;  at 
first  it  is  not  very  clearly  distinguished  from  citizenship  or  connection  with 
a  lord's  domain.     During  the  monarchic  period  one  could  have  a  domicile: 

(a)  of  origin,  that  is  the  domicile  of  the  father  and  mother  at  one's  birth; 

(b)  of  fad,  resulting  from  establishing  oneself  in  some  place  with  intent  to 
remain  there;  (c)  of  law,  in  the  place  where  one  has  a  benefice  or  an  office,  and 
only  in  so  far  as  matters  relating  thereto  are  concerned;  (d)  of  choice,  or  one 
agreed  upon  for  the  carrying  out  of  a  contract,  etc. ;  (e)  with  respect  to  marriage, 
a  residence  of  six  months  or  one  year  in  the  parish;  (/)  ivith  respect  to  tallage: 
Argou,  I,  12;  see  Guyot,  Ferriere  (bibl.);  Civil  Code,  102;  Homeyer,  "Heimath" 
("Berl.  Abh.,"  1852). 

658 


Topic  3]   ACQUISITION  OF  HEIRSHIP  XND  ITS  CONSEQUENCES   [§  4G9 

possibility  of  the  return  of  the  absent  man  that  it  presumed 
him  to  be  Hving  as  long  as  the  contrary  was  not  proved,  or  as  long 
as  a  hundred  years  had  not  elapsed  since  the  date  of  his  birth. ^ 
His  possessions  were  administered  by  a  curator  appointed  at 
the  request  of  the  interested  parties.^  After  a  delay  of  3,  7,  or 
10  years,  according  to  locality,  the  heirs  presumptive^  were  put 
into  a  provisional  possession;  twenty  or  thirty  years  after  the 
last  news  or  the  disappearance,  the  legatees  were  finally  put  in 
possession  by  the  court.  In  such  cases  the  spouse  who  was 
present  could  not  remarry  unless  proof  of  the  death  of  the  one 
who  was  absent  was  produced.^ 

§  469.  Incapacity  to  Succeed,  in  the  very  old  law,  exists  when 
it  is  j^hysically  (demented,  idiots,  lepers,^  children  of  tender  age,^ 
women)  or  morally  (ecclesiastics,''  monks,^  people  condemned  to 
capital  punishment)  impossible  for  the  heir  to  be  head  of  the 
family;  ^  2d,  when  the  person  whom  the  ties  of  relationship  would 
call  to  succeed  does  not  belong  to  the  house  (alien,  bastard/"  son 

1  Contra  :  Pothier,  "Introd.  a  la  Cout.  d'Orl.,"  XVII,  no.  7:  there  is  no  pre- 
sumption as  to  whether  he  is  living  or  dead;  it  is  for  those  who  have  an  inter- 
est in  doing  so  to  prove  that  he  is  alive.  —  Contrary  to  this  idea,  it  was  allowed: 
(a)  that  he  take  part  in  successions  opening  for  his  benefit;  (b)  and  that  rights 
dependent  upon  the  death  of  the  absentee  could  not  be  exercised  by  the  inter- 
ested parties  (for  example,  usufruct).  Laws  of  Oct.  5,  1791,  21st  Vent,  and 
16th  Fruct.,  year  II. 

2  "Coutume  de  Chatillon,"  Art.  72  (see  Giraud,  Ferrihre). 

^  Does  this  mean  the  nearest  relatives  at  the  time  when  the  taking  of  pos- 
session was  allowed  or  at  the  time  of  the  disappearance?  Diversity  in  the 
Customs:  Stobbe,  loc.  cit.  —  If  the  absentee  has  left  an  agent  there  are  diffi- 
culties.—  The  spouse  who  is  present  can  demand  the  dissolution  of  the  com- 
munity, and  this  dissolution  becomes  final  or  is  bound  to  take  place  when  a 
final  partition  is  made. 

*  "Novella,"  117,  11;  "Authentica,  hodie,"  on  I.  7;  "Cod.  Just.,"  "de 
repud. ";  Dig.  X,  "de  spons.,"  19;  Bretonnier,  see  "Absents."  Cf.,  however, 
Pothier,  "C.  de  Mar.,"  106. 

^  "Summa  Norm.,"  25,  22, 10;  "Cout.  de  Bareges,"  2  ("pec,"  from  "pecus," 
idiot;  "taros,"  imbecile).  Deaf  mutes:  Bonnejoy,  "These,"  1899;  "Roth.," 
176,  and  "Sachsensp.,"  I,  4  (lepers).  Dwarfs,  hermaphrodites,  etc.:  Schroeder, 
737.    As  to  hermaphrodites,  r/.Zeys,  "LeNil,"  §6;  Post,  II,  176,  178  (bastards). 

6  Probability  of  their  living?  Cf.  "Alam.,"  92;  "Wis.,"  4,  2,  17;  Stobbe, 
§  37,  280.  According  to  several  of  the  Scandinavian  laws  a  child  can  onlj-^ 
inherit  if  he  has  eaten  or  been  baptiz(!d.  —  As  to  the  rule,  "Infans  conceptus 
pro  nato  habetur,"  cf.  Lambert,  "Stipul.  pour  Autrui,"  p.  166. 

'  "Cout.  de  Bareges,"  1;  Loysel,  343;  Stobbe,  V,  17. 

*  According  to  the  Roman  and  the  canon  law,  the  monk  succeeds  to  his  rela- 
tives and  transmits  this  succession  to  the  monastery.  But  the  Customary  law 
places  him  under  a  disability;  he  can  neither  succeed  for  his  own  adv^antage 
nor  for  that  of  the  monastery:  Loysel,  345;  post,  "Persons";  Londry,  "Mort 
civile  des  Relig.,"  1900  (h\h\.);  Stobbe,  V,  18;  Laws  of  Feb.  20,  March  26,  and 
Oct.  14,  1790;  of  the  18th  Vend.,  year  II. 

»  "Summa  Norm.,"  25,  9. 
10  "Wis.,"  4,  5;  "Bai.,"  14,  8.     Children  born  of  an  incestuous  union: 

659 


§  4G9]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

who  is  emancipated  or  who  has  founded  a  separate  home/  daugh- 
ters married  outside  of  the  house  -)  or  is  set  aside  owing  to  the 
apphcation  of  the  seigniorial  right  (for  example,  he  is  a  serf). 
Capacity  to  succeed  even  depends  sometimes  upon  equality  of 
status  with  the  deceased;  thus,  the  plebeian  cannot  succeed 
to  the  noble  in  certain  localities.^  Many  of  these  incapacities 
disappeared  in  the  later  law,  which  was  especially  concerned 
with  carrying  out  the  probable  wishes  of  the  deceased.  However, 
the  incapacity  of  aliens,  bastards  and  monks  remained,  and  we 
have  seen  what  happened  with  regard  to  the  exclusion  of  daughters. 
Legal  persons  or  people  in  mortmain  were  not  always  deprived  of 
the  right  of  succeeding;  thus  the  monastery  took  the  possessions 
of  the  monks  when  they  died. 

§  470.  Disinheritance.  —  This  principle  was  contrary  to  the 
spirit  of  the  very  old  law,  according  to  which  one  can  no  more 
take  away  from  a  person  the  status  of  being  an  heir  than  one  can 
confer  it  upon  him;  ^  at  the  same  time,  the  "foris  familiatio"  or 
expulsion  from  the  family  produced  the  same  effects.^  In  its  final 
form  disinheritance  was  borrowed  in  the  countries  of  the  Customs 
from  the  Roman  law,  and  the  judicial  practice  of  the  countries  of 
written  law.  In  the  thirteenth  century  a  testator  could  deprive 
his  heirs  of  only  the  "disposable"  portion  of  his  estate;  they 
kept  the  legal  share  and  the  reserve  share ;  ^  under  these  conditions 
the  simplest  means  of  disinheriting  one's  heirs  was  to  grant  one's 
"disposable"  possessions  on  somebody  other  than  they.  When  it 
became  lawful  to  oust  them  of  the  entire  succession,'^  and  this  is 

"Sal.  em.,"  14,  16;  "Liut.,"  32;  "Roth.,"  185;  "Alam.,"  39;  "Wis.,"  3,  5; 
"Cod.  Theod.,"  Ill,  12.  —  R.  Caillemer,  "Admin,  et  Conf.,"  129. 

1  Anticipated  partition  between  father  and  children,  post.,  "Reservation"; 
"Sal.,"  60;  "Montpellier,"  58.  —  Freund,"  Was  in  der  Were  verstirbt,"  1880. 

2  "Roth.,"  181;  "Liut.,"  2  (girls  "in  capillo  in  casa").  Anticipated  re- 
nunciations of  succession,  cf.  "Z.  S.  S.,  G.  A.,"  1889,  202. 

3  "SaclLsensp.,"  I,  17,  33. 

'  "Wis.,"  4,  5,  1;  "Roth.,"  71,  61,  166;  "Bai.,"  1;  "Sax.,"  16,  62;  "Burg.," 
24;  "L.  Alam.,"  1;  "Faux  Capit.,"  Ill,  326;  Schroeder,  333. 

*  In  the  barbarian  laws  and  the  Capitularies  to  disinherit  means  to  alienate 
one's  possessions;  but  we  have  seen  that  restrictions  were  placed  upon  the  free- 
dom of  ahenation:  Grirnoald,  5]  "Liut.,"  105;  "Sax.,"  64;  Capitulary  of  814- 
827,  c.  6,  etc.  (I,  312,  114);  Dig.  X,  "qui  filii  s.,"  4,  17,  1;  Gnmm,  "R.  A.," 
482.  —  On  the  forswearing,  cf.  P.  de  Fontaines,  p.  76;  Beaumanoir,  60,  7; 
"A.  C,  Artois,"  7,  7;  Dareste,  "Nouv.  Et.,"  pp.  342,  69  (Greek  law). 

«  P.  de  Fontaines,  33,  33;  44,  10;  Beaumanoir,  12, 17;  "Ass.  de  J^r.,"  "C.  des 
B.,"  239;  Boutaric,  1, 103;  "Anion,"  251;  "Maine,"  369;  "Tours,"  286;  PeZews, 
"Act.forens,"  V,31;  "Schwabensp.,"  I,  17;  II,  122.    Cf.  "Petrus,"  I,  15  et  seq. 

'  Ordinance  of  1556;  Chnssaneus,  "Cons,  Burg,  de  Succ,"  13,  2.  Cf. 
exclusion  of  daughters,  "foris  familiatio."  —  Pothier,  "Succ,"  I,  2,  4;  Ferricre, 
on  "Paris,"  318.  —  As  to  the  position  of  the  children  of  the  man  disinherited, 

660 


Topic  3]    ACQUISITION  OF  HEIRSHIP  AND  ITS  CONSEQUENCES    [§471 

what  was  accepted  at  least  by  the  sixteenth  century,  a  formal 
declaration  became  necessary  (will,  notarial  deed,  or  declaration 
before  the  judge),  which  moreover  had  no  effect  unless  it  were 
based  upon  a  just  ground  which  was  expressly  recited.^  Though 
this  requirement  did  not  apply  to  the  "disposable"  portion,  the 
courts  found  a  means  of  protecting  the  interests  of  the  family, 
which  were  liable  to  be  too  readily  sacrificed;  at  the  end  of  the 
sixteenth  century  it  annulled  disposals  which  were  inspired,  not 
by  a  desire  to  gratify  the  legatee,  but  by  hatred  or  anger  against 
an  heir  (action  "ab  irato").^  This  nice  search  for  motive  left 
the  tribunals  a  great  latitude.  Just  as  disinheritance  was  ham- 
pered by  formalities,  so  was  its  revocation  made  easy;  it  could 
be  implied,  —  for  example,  it  might  result  from  the  fact  that  the 
man  disinherited  had  been  received  by  the  man  disinheriting 
and  had  lived  with  him;  it  was  even  presumed,  when  he  had 
rendered  him  great  services.^  The  Decree  of  9th  Fructidor,  year 
II,  abolished  disinheritance,  and  the  Civil  Code  has  not  re-estab- 
lished it.^  —  Officious  disinheritance,  which  was  also  abolished 
by  the  Revolutionary  law,  permitted  the  father  of  the  family  to 
"set  up"  his  grandchildren  and  disinherit  his  prodigal  sons.  By 
this  means  results  analogous  to  those  of  a  spendthrift  guardian- 
ship were  arrived  at,  while  avoiding  the  scandal  which  comes  with 
the  latter;  the  son  who  was  disinherited  received  an  allowance 
for  his  support,  or  else  the  usufruct  of  the  succession. 

§471.    Disqualification^  is  only  an  implied  disinheritance  pro- 

<^.  Ricard,  "Don.,"  Ill,  951;  Remisson,  "Propres,"  II,  7,  6;  "T.  A.  C.,  Norm.," 
10:  refusal  of  a  marriage  portion  to  the  daughter  who  lives  "luxuriose." 

1  In  the  sixteenth  century  it  was  agreed  that  the  enumeration  of  just  causes 
of  disinheritance  which  it  contained  should  be  borrowed  from  the  "Novella," 
115,  c.  3,  and  to  them  was  added  marriage  without  the  consent  of  father  and 
mother:  Beaumanoir,  12,  17;  "Et.  de  St.  Louis,"  I,  144;  "A.  C,  Bret.,"  495; 
"Ord."  of  1556;  1579,  41 ;  Declaration  of  1639.  IDisinheriting  and  revocation  of 
gifts  because  of  ingratitude  had  for  a  long  time  been  api)lied  in  this  case: 
Stobbe,  §  253;  Schrneder,  "Z.  R.  G.,"  IX,  140  (texts);  "Sachseasp.,"  I,  5:  the 
misconduct  of  the  daughter  does  not  make  her  lose  her  rights  of  succession. 
Contra,  various  Cv^stoms:  "T.  A.  C,  Bret.,"  p.  507,  ed.  P.  —  Outside  of  legal 
just  causes,  was  disinheriting  possible  for  some  serious  reason?  Controversy: 
Pothier,  1,  2,  4;  Furgole,  "Test.,"  8,  2,  92. 

2  The  Civil  Code  no  longer  recognizes  the  action  "ab  irato."  The  Law  of 
Niv.,  year  II,  did  not  allow  collaterals  to  be  excluded  and  had  thus  rendered 
the  action  "ab  irato"  on  their  behalf  useless.  As  to  disinheritance  "cum 
elogio,"  cf.  Ricard,  "Don.,"  I,  630. 

'  Law  "si  furioso  "  (Dig.,  27,  10,  16;  "Arr.  Pari.  Paris,"  1611,  1625);  Ricard, 
"Don.,"  Ill,  1139;  Lebrun,  "Succ,"  III,  5,  2;  see  Denisart. 

"  Laws  of  Oct.  14,  Nov.  14,  1792,  9th  Fruct.,  year  II,  Art.  20;  Sagnac, 
pp.  308,  375. 

*  Dig.,  34,  9;  Argon,  II,  20;  see  Ferrihre,  Guyol  (bibl.);  Gendreau,  "Thdse," 
1889. 

661 


§  471 J  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

nounced  by  the  law  after  the  death  of  the  deceased  when  circum- 
stances have  prevented  the  latter  from  making  use  of  the  power 
of  disinheriting/  —  for  example,  because  his  heir  had  attempted 
to  kill  him.-  The  causes  for  disqualification  were  the  same  as 
those  of  disinheriting,^  and  they  produced  analogous  effects. 

§  472,  The  Role  of  the  Heir.^  —  The  heir  in  Roman  law  per- 
petuated the  person  of  the  deceased.  In  French  law  the  patri- 
mony was  divided  into  several  masses.  They  had  not  been  able 
to  accept  the  fiction  that  the  deceased  and  his  successor  were  one 
person.  The  heir  rather  resembled  one  functionary  who  takes 
the  place  of  another,  and  who  is  not  held  bound  by  the  obligations 
of  the  latter  as  far  as  every  detail  is  concerned;  he  became  the 
head  of  the  family  in  his  turn  and  exercised  the  powers  of  his 
predecessor,  but  he  did  not  inherit  the  personality  of  his  predeces- 
sor. This  is  not  the  same  as  saying  that  he  may  be  compared  to 
the  mere  grantee  by  specific  titles.''  For  each  of  the  masses  of 
the  inheritance,  the  succession  vests  by  "universal"  or  joint  title, 
in  this  sense,  that  one  takes  a  mass* of  possessions  and  not  iso- 
lated pieces  of  property,  one  by  one;  and  also  in  this  sense,  that 
one  assumes  the  legal  status  of  one's  ancestor,  and  not  that 
one  creates  for  oneself  an  entirely  new  status  having  no  connec- 
tion with  the  preceding  one.^    The  Romans  pushed  the  notion  of 

1  Thus  it  is  possible  to  grant  a  pardon,  but  this  is  no  longer  done,  for  dis- 
qualification is  a  public  penalty. 

2  "Roth.,"  163;  "Fris.,"  19,  1;  "Sachsensp.,"  Ill,  84,  3;  Stohhe,  V,  15. 

^  Generally  speaking,  the  succession  is  not  confiscated,  but  it  passes  to  the 
next  degree  of  kin.  It  seems,  however,  that  originally  the  children  of  the  per- 
son disqualified  were  punished  because  of  their  father's  offense:  "Summa 
Norm.,"  22,  10;  J.  Lecoq,  "Q.,"  266;  Lebrun,  3,  9,  10.  But  Pothier,  1,  2,  4,  6, 
protests  against  this  doctrine :  Boutaric,  I,  39.  Children  of  heretics  and  of  those 
condemned  for  high  treason,  etc.:  Stohhe,  V,  16. 

*  Cf.  Blackstone,  II,  29  (one  abbot  succeeds  to  another,  etc.);  Isambert,  I, 
279  (in  1526):  the  king  is  not  held  bound  to  pay  the  debts  of  his  predecessor; 
LeBrei,  "Souver.,"  IV,  10. 

*  It  may  be  that  originally  the  inheritance  of  movables  did  not  differ  very 
much  from  a  mere  occupation  affecting  things  which  had  been  abandoned. 
Cf.  "jus  spoHi." 

8  It  is  difficult  to  see  anything  but  an  acquisition  by  sojie  special  right  in 
the  succession  to  the  "Gerade,"  to  the  "  Heergerath  "  (cf.  the  English  "heriot," 
Pollock  and  Maitland,  I,  293;  II,  257).  And  if  one  wishes  to  get  some  idea  of 
the  possibilities  of  the  parceling  of  an  inheritance,  one  has  only  to  suppose  with 
Pollock  and  Maitland,  II,  253,  the  existence  of  a  succession  in  which  a  split 
and  a  resplit  take  place,  which  result  in  four  portions,  and  in  each  portion 
property  some  of  which  is  subject  to  the  common  law,  some  to  the  Custom  of 
Gavelkind,  and  some  to  the  Custom  of  Borough  English;  should  there  be 
heirs  for  each  one  of  these  sub-successions,  the  result  would  be  infinitesimally 
small  portions.  The  general  right  then  becomes  very  much  like  a  special 
right.  But  at  the  same  time  one  can  understand  the  adoption  of  the  Roman 
ideas  as  to  the  "successio  in  universum  jus  defuncti,"  if  one  will  observe  with 
Heusler,  II,  525,  that  the  Germanic  heir  ordinarily  succeeds  to  the  general 

662 


Topic  3]   ACQUISITION  OF  HEIRSHIP  AND  ITS  CONSEQUENCES   [§  472 

succession  by  "universal"  title  to  its  utmost  consequences  and 
merged  the  personality  of  the  heir  with  that  of  the  deceased 
("successio  in  universum  jus  defuncti").  The  old  French  law 
stopped  halfway,  either  because  of  the  personal  character  of 
debts  or  the  fact  that  they  could  not  be  transmitted,  or  else  be- 
cause of  the  distinctions  made  between  the  possessions  of  the  fam- 
ily and  the  personal  possessions,  between  the  house  and  the  lineage. 
But  the  early  conception  of  the  part  played  by  the  heir  was  little 
by  little  effaced,  in  proportion  as  its  peculiarities  disappeared 
or  became  less;  for  example,  when  the  obligation  lost  its  personal 
character,  the  debts  of  the  deceased  passed  quite  naturally  to  the 
heir,  together  with  his  possessions.^  Thus  they  returned  to  the 
Roman  conceptions.  These  they  found  in  perfect  harmony  with 
the  very  powerful  idea  of  moral  and  economic  mutual  respon- 
sibility of  relationship  under  the  Old  Regime;  the  son  would  have 
thought  himself  dishonored  in  not  paying,  even  out  of  his  own  pos- 
sessions, the  debts  of  his  father;  and  the  third  party  in  negotiating 
with  the  father  relied  upon  the  son,  and,  in  fact,  upon  the  whole 
household.  Thus  the  liabilities  w'ere  closely  united  to  the  assets, 
all  the  elements  of  the  patrimony  tended  to  form  but  a  single 
mass.^ 

By  an  early  combination  of  the  Roman  law  and  the  Custom- 
ary ideas,  two  categories  of  "universal"  heirs  were  to  be  distin- 
guished,—  1st,  heirs  or  persons  who  perpetuated  the  person; 
2d,  mere  successors  to  the  possessions.  The  former  were  the  law- 
ful relatives  who  inherited  upon  intestacy;  the  latter  were  irregu- 

share.  He  is  not  a  "universal"  heir,  but  he  is  an  heir  by  "universal"  right  (c/. 
"L.  Sal.,"  50,  58:  "facultas,"  "fortuna";  "Liut.,"  20:  "substantia";  "Alain ." 
35,  57,  " hereditas " ;  "Sachsensp.,"  1,  6,  2:  "erbe,"  meaning  all  the  property 
left).  Taking  possession  of  the  house  of  the  deceased,  at  least,  in  certain  places; 
for  example,  in  Neerlande;  this  symbolizes  inheritance.  In  the  petition  for 
inheritance  one  proves  one's  title  to  it  against  anybody  who  possesses  "pro 
herede"  or  "pro  possessore."  Cf.  Pollock  and  Maitland,  II,  253.  For  Heusler 
the  conception  of  the  patrimony  ("  Vermogen")  is  economic  and  not  juridical; 
all  the  rights  and  obligations  designated  by  this  are,  in  fact,  only  one.  Cf. 
Zeys,  "Le  Nil"  (a  great  number  of  heirs).    Cf.  Blackstone,  II,  29. 

1  Canon  law:  The  son  is  held  "juxta  facultates"  for  the  debts  of  his  father 
in  order  to  save  the  soul  of  the  latter  (restitutions);  Dig.  X,  3,  28,  14;  5,  12, 
5;  5,  19,  9;  5,  39,  28;  Stohhe,  V,  60. 

*  What  does  the  inheritance  include?  There  are  rights  that  die  with  their 
holder;  for  example,  the  family  rights.  The  inheritance  is  understood  to  apply 
to  the  rights  and  obligations  which  go  to  make  up  the  patrimony;  and,  again, 
certain  of  these  rights  cannot  be  transmitted  (for  example,  the  usufruct). 
As  to  the  character  of  claims  and  debts,  cf.  ante.  At  an  early  time  claims  could 
be  transferred  in  the  same  way  as  cor()oreal  objects.  As  to  debts,  pod,  and 
Heusler,  II,  540.  From  the  succession  the  Greek  law  excludes  the  right  to 
pursue  the  murderer  and  the  right  to  marry  the  daughter  left  as  an  heir  where 
there  is  no  male  issue,  etc.:  Dareste,  "Nouv.  Et.,"  90. 

663 


§  472]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

lar  successors  upon  intestacy,  such  as  the  Treasury.  In  the  former 
the  law  saw  a  survival  of  the  person  of  the  deceased ;  if  they  were 
heirs  of  the  body,  this  was  natural  enough ;  if  they  were  other  rel- 
atives, it  was  not  hard  to  apply  the  same  theory.  But  the  second 
class  above  mentioned  was  scarcely  in  harmony  with  the  Custom- 
ary principles;  there  was  not  much  inclination  to  strengthen  their 
rights  by  regarding  them  as  perpetuators  of  the  person;  the  dis- 
favor which  fell  upon  them  resulted  in  their  being  left  in  their 
original  position,  which  corresponded  pretty  nearly  to  that  of 
legatees  in  the  Roman  legislation.^ 

§  473.  Acquirement  of  a  Title  by  Inheritance  took  place  by 
operation  of  law,  without  formalities  and  without  an  act  of  ac- 
ceptance. This  was  as  logically  demanded  by  the  family  joint 
ownership.  The  heir  did  not  have  to  accept;  if  he  made  no  re- 
nunciation, the  succession  belonged  to  him  from  the  moment  of 
the  death  of  the  deceased.^  One  can  even  say  that  a  renunciation 
would  have  had  scarcely  any  object,  as  long  as  the  heir  was  not 
held  for  the  debts,  or  was  only  held  for  them  to  a  limited  extent; 
he  had  a  chance  of  winning  and  ran  no  risk  of  losing.  The  annoy- 
ing formalities  imposed  on  a  renunciation  (after  the  law  came 
to  allow  it),  and  the  disfavor  shown  to  the  Roman  privilege  of 
demanding  inventory  (before  acceptance)  show  the  legislator's 
repugnance  to  the  idea  of  an  heir's  refusal  to  act.  For  the  descend- 
ants of  the  deceased,  especially,  the  preservation  of  the  house  was 
a  sacred  duty.  Suitable  enough  as  this  principle  was  for  the  mem- 
bers of  the  family  who  formed  a  part  of  the  house  (cf.  in  Roman 
law  the  circle  of  the  "sui")  it  was  equally  inappropriate  for  distant 
relatives  and  "a  fortiori"  for  irregular  successors  and  legatees.  It 
would  have  been  natural  to  exact  an  acceptance  from  them,  and 
even  to  require  them  to  make  proof  of  their  rights;  ^  and  it  would 

1  Loysel,  304,  313;  La  Thaumassiere,  on  "Berry,"  19,  9;  Argou,  II,  19; 
Pasquier,  490. 

*  No  inheritance  in  abeyance  henceforth:  "L.  Feud.,"  1,  14;  2,  1,  11,  33. 
And,  consequently,  also,  transmission  of  the  succession,  simply  because  of  the 
fact  that  it  is  open,  to  the  heirs  of  the  heir:  Fertile,  IV,  123.  The  succession, 
in  fact,  was  originally  nothing  more  than  the  liquidation  of  a  pre-existing  com- 
munity: Gierke,  "Z.  R.  G.,"  XII,  481,  and  "Genossenschaftsrecht,"  I.  Cf. 
Flanders:  heir  by  necessity;  Britz,  693. 

'  The  legislation  of  other  countries  has  shown  us  attempts  in  this  direction. 
Sometimes  the  heir  himself  attempted  to  place  his  right  under  the  protection 
of  the  law,  and  sometimes  the  public  authority  itself  intervened  because  of 
the  rights  that  it  had  over  vacant  successions.  The  heir  was  asked  to  swear 
that  he  was  the  true  heir;  he  was  put  in  possession  only  after  he  had  paid  for 
it.  Sometimes  public  authority  went  so  far  as  to  liquidate  the  succession  and 
only  paid  over  the  net  assets  to  the  heir  after  having  paid  the  debts.    Thence- 

664 


Topic  3]    ACQUISITION  OF  HEIRSHIP  AND  ITS  CONSEQUENCES   [§  474 

have  been  natural  to  hold  that  prolonged  silence  would  carry  with 
it  the  loss  of  their  rights  of  inheritance.^  But  the  old  law  did 
not  go  so  far;  it  merely  treated  the  heirs  or  successors  on  intest- 
acy in  a  different  manner  from  testamentary  successors;  the  latter 
were  not  allowed  to  have  the  immediate  exercise  of  their  rights;  it 
was  necessary  for  them  to  demand  the  delivery  of  their  inher- 
itance from  the  lawful  heirs,  and  in  case  of  a  refusal,  to  have 
themselves  put  in  possession  by  the  law. 

§  474.  Hereditary  Seisin.  —  Before  any  physical  entry  on  the 
property,  the  lawful  heir  is  considered  as  being  in  possession,  by 
operation  of  law  at  the  death  of  the  deceased.  The  latter  is  con- 
sidered as  having  himself  put  the  heir  in  possession  at  the  moment 
of  his  death:  the  dead  enfeoffs  the  hving.^  The  result  of  this 
formula  is  that  the  heir,  from  the  moment  of  the  death,  has  all 
the  advantages  of  possession  and  cannot  be  deprived  of  them,  — - 
the  right  to  the  profits,  the  role  of  defendant  in  suits  for  the 
property-title,  the  bringing  of  actions  for  possession,^  the  continu- 
ation of  the  prescriptive  possession  of  his  ancestor,  and  "a  fortiori" 
the  power  of  taking  possession  by  his  own  authority,  without  the 
intervention  of  the  lord  or  the  law,'*  of  the  property  belonging  to 

forth  the  practice  of  the  inventory  became  general.  Thus  through  the  Customs 
the  privilege  of  inventory  was  arrived  at.  What  actually  took  place  was  an 
entry  upon  the  land  registers.    CJ.  Stobbe,  V,  31. 

1  Were  the  rule,  "Fructus  augent  hereditatem,"  and  the  Juventian  Senate 
Decree,  which  were  rejected  by  the  Civil  Code,  138,  applied  in  the  old  law? 
No,  according  to  Pothier,  "Propr.,"  no.  429.  —  Are  sales  made  by  the  heir 
apparent  valid  because  of  the  rule,  "  Error  communis  f acit  jus  "?    It  is  doubtful. 

2  "Mortuus  saisit  vivum":  "Olim,"  I,  452,  16  (in  1259);  II,  517,  9;  II, 
556,  3,  etc.;  J.  d'lbelin,  151;  "Et.  de  St.  Louis,"  II,  4;  Beaumanoir,  27,  2;  41, 
9;  "Const,  du  Chat.,"  p.  63;  Desmares,  LII,  234,  286;  "Gr.  Cout.,"  pp.  233, 
287,  304,  367;  Boutaric,  p.  128;  "Stil.  Pari.,"  28,  6;  "Paris,"  318;  Loysel,  317; 
"Arr.  de  Lamoignon,"  "Succ,"  1,  2;  see  Ragueau,  "Der  Todte  erbt  den 
Lebendigen"  (middle  of  the  fifteenth  century,  Western  Germany).  The 
"Sachsensp.,"  6,  1;  3,  83,  already  said  that  with  regard  to  fiefs  and  other  prop- 
erty the  deceased  transmits  the  "Gewere"  of  the  property  to  the  heir  together 
with  the  property  itself  ("possessionem  beneficii  sicut  et  beneficium"). — 
Glanville,  9,  1,  4,  6,  2;  11,  1,  3;  13,  9;  "Summa  Norm.,"  35;  see  liagueau.  CJ. 
"Ass.  de  J(5r.,"  "Abr.  C.  des  B.,"  47,  57. 

3  J.  Faber,  "Inst,  de  Interd."  ("Stylus  Curia?  Francise"),  §  "retm.,"  7;  "Gr. 
Cout.,"  II,  31.  —  Cf.  the  Norman  law:  writ  of  "saisinaantecessoris":  "T.  A.  C, 
Norm.,"  74;  "Gr.  Cout.,"  II,  21:  "saisina  defuncti  descendit  in  vivum"; 
Blackstone,  II,  14:  "saisina  facit  stipitem"  (French  tran.slation.  III,  20). 

'  "Gr.  Cout.,"  II,  21;  "Stil.  Pari.,"  Ill,  28;  "T.  A.  C,  Bret.,"  66,  540: the 
dead  puts  the  living  in  possession  in  the  dir(>ct  line,  the  law  in  the  collateral 
line.  —  In  the  German  law  the  putting  in  legal  possession,  is  frequent  and 
the  symbolical  taking  possession  bj-  the  heir  also  (for  example,  ho  places 
himself  upon  the  seat  reserved  for  the  head  of  the  family,  etc.).  In  the  Nether- 
lands the  heir  has  his  title  recognized  at  law  and,  following  the  judgment,  pub- 
licly takes  possession  of  the  house  of  the  deceased  by  taking  hold  of  the  door 
with  liis  hand  and  placing  his  foot  upon  the  threshold  ("Anevang  an  Thure 

665 


§  474]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

the  succession,  movables  or  immovables,  personal  belongings  or 
acquests,  freeholds  or  copyholds.^  This  privilege  belonged  only 
to  the  heirs  at  law,^  —  to  descendants  and  ascendants  first  of  all, 
and  only  towards  the  sixteenth  century  to  the  collaterals  them- 
selves. A  few  Customs  extended  it  to  successors  appointed  by 
will.^  On  the  other  hand,  the  seisin  of  the  movables  was  very 
generally  vested  in  the  testamentary  executors,  so  as  to  enable 
them  to  fulfill  their  duties.* 

Upon  this  question  of  the  acquiring  of  possession  of  the  inherit- 
ance, the  Customary  law  was  distinct  from  the  Roman  legislation; 
for,  according  to  the  latter,  the  heir  should  only  have  possession 
by  virtue  of  taking  possession  in  fact.^  The  history  of  the  theory 
of  possession  at  Rome  will  alone  enable  one  to  understand  why 
the  Roman  heir,  succeeding  "in  universum  jus  defuncti,"  was  not 

und  Schwelle")-  In  Southern  Germany  the  intervention  of  the  law  is  still 
more  clearly  marked:  Stobbe,  V,  34,  26;  Heusler,  op.  cit.  According  to  some 
these  were  nothing  more  than  useful  formalities,  having  nothing  essential 
about  them.  Others  think  that  originally  the  possession  of  the  inheritance  can 
only  be  acquired  by  means  of  the  carrying  out  of  the  "Anevang"  by  the  heir 
upon  his  own  initiative  or  following  the  intervention  of  the  law;  in  time  the 
"Anevang"  must  thus  have  degenerated  into  a  mere  formality,  and  through 
the  fact  of  the  death  alone  the  heir  found  that  he  acquired  the  ownership  and 
the  possession  ("civilissima")  of  the  inheritance  at  one  and  the  same  time.  — 
In  English  law  the  heir  before  having  taken  possession  (entry)  has  the  seisin 
only  in  law  and  not  in  deed;  he  could  not  begin  an  action  of  trespass  against 
a  third  party  who  might  encroach  upon  his  rights.  As  to  rights  of  entry  and  the 
assizes  of  "  mort  d'ancestor,"  cf.  ante,  Chap.  II,  Topic  iv,  §270,  and  Lehr, 
p.  701.  The  heir  of  the  personal  property  must  ask  for  administration  of  it  at 
the  hands  of  the  law.  —  Cf.  the  Civil  Code,  724,  769:  putting  in  possession  of 
irregular  successors.  —  Italy,  Pertile,  IV,  125.  —  Cf.  ''T.A.  C,  Bret.,"  66. 

1  Even  as  late  as  the  fourteenth  century  the  lord  is  given  the  seisin  before 
the  heir  (in  the  case  of  fiefs):  "Gr.  Cout.,"  II,  19;  II,  27  (pp.  234,  305,  367); 
Desmares,  234  (local  customs  still  require  the  lord  to  be  given  the  seisin); 
VartJi,  "Arch.  \6g.  de  Reims,"  I,  662,  711.  —  But  as  to  fiefs  themselves,  in 
the  end  the  seisin  of  the  lord  came  to  be  dispensed  with.  The  right  of  the  family 
did  away  with  it.  —  Cf.,  however,  Glasson,  VII,  487  (evolution  in  the  opposite 
direction);  "Artois,"  6. 

2  The  seisin  is  individual  and  not  collective;  it  is  conferred  upon  the  "nearest 
heir  and  the  one  best  able  to  succeed,"  and  not  upon  the  entire  Hneage:  "Et. 
de  St.  Louis,"  II,  4;  "Paris,"  318;  "Jostice,"  16,  2.  Each  heir  is  seised  of  his 
share,  and  not  of  the  whole.  Controvensy  upon  these  points,  which  bear  rather 
upon  the  acquirement  of  the  ownership:  Blondeau,  "Sep.  des  Patr.,"  p.  652. 
—  Pothier,  "Succ,"  3,  2,  4;  Ferriere,  on  "Paris,"  318;  Denisart,  see  "H^ritier," 
5,2. 

3  "Stil.  Pari.,"  28,  10;  "Gr.  Cout.,"  p.  282;  Masuer,  II,  33;  XI,  34.  —  Seisin 
to  the  appointed  heir:  "Olim,"  II,  556,  3;  "Bourg.,"  3,  43;  "Berry,"  19,  28; 
"Niv.,"  "Don.,"  12;  Pothier,  "Succ,"  p.  Ill  (ed.  fi.):  coimtries  of  written  law. 
But  this  only  contemplates  the  acquirement  of  the  o^^Tiership.  Italy  (Modena, 
Rome,  etc.):  Pertile,  IV,  122.  —  Cf.  Benumanoir,  30,  38;  Loysel,  312  et  seq. 

*  "Olim,"  II,  255,  9;  Beaumanoir,  12,  6. 

^  There  are  three  hypotheses  to  account  for  seisin:  1st,  Roman  origin 
(Planiol);  2d,  Germanic  origin  (Heusler);  3d,  Customary  origin  (reaction 
against  feudal  exaction)  (Lauriere).  Cf.  synopsis  of  these  systems  in  "R. 
crit.,"  1891,  584  (Dufourmantelle). 

666 


Topic  3]   ACQUISITION  OF  HEIRSHIP  AND  ITS  CONSEQUENCES   [§  474 

invested  with  the  possession  and  the  ownership  at  one  and  the 
same  time.  That  is  what  we  have  to  explain.  One  is  accustomed 
to  taking  the  question  backwards,  and,  consequently,  to  ask,  by 
what  peculiarities  was  possession  found  to  be  acquired  by  the 
heir  in  the  Germanic  law  immediately  after  the  death  of  his  an- 
cestors? In  truth,  it  is  a  perfectly  natural  consequence  of  his  situa- 
tion "de  facto,"  and  the  usual  course  is  for  possession  and  ownership 
not  to  be  separated.  The  heir,  who  is  most  often  the  son  or  the 
grandson  of  the  deceased,  lived  under  the  same  roof  with  him;  he 
was  at  the  same  time  joint  owner  and  joint  possessor  of  the  family 
property.  In  saying  that  he  had  the  seisin  from  the  moment  of 
the  death,  they  were  not  expressing  a  fiction,  but  a  reality  and  a 
positive  fact.  The  same  could  not  be  said,  it  is  true,  with  regard 
to  collaterals;  but,  again,  it  would  have  been  more  difficult  to 
concede  them  the  seisin.  When  the  formation  of  the  family  became 
modified,  this  principle  seemed  to  lose  its  reason  for  existing;  it 
was  the  object  of  the  attacks  of  the  Romanists,  who  held  it  to  be 
a  veritable  heresy;  ^  but  the  practical  advantages  which  it  offered 
were  its  salvation,  and  it  is  again  met  with  in  the  Civil  Code,  Art. 
724.  By  declaring  that  the  heir  was  seised  "a  die  mortis,"  usur- 
pations were  made  more  difficult;  his  interests  could  no  longer  be 
jeopardized  by  mere  accident,  an  unforeseen  absence,  or  a  lack 
of  knowledge  of  the  death.  The  advantage  was  also  gained  of  his 
escaping  from  the  payments  of  the  seigniorial  profits  which  were 
demanded  in  cases  of  change  in  fiefs  and  copyholds  brought  about 
by  death,  under  the  pretext  that  the  lord  had  to  give  the  seisin  or 
invest  the  new  vassal  and  the  new  copyholder.  These  pretensions 
could  be  replied  to  by  saying  that  it  was  not  the  lord,  but  the  de- 
ceased who  gave  the  seisin  or  invested  the  heir;  the  formula,  "The 
dead  gives  the  seisin  to  the  living,"  was  perhaps  invented  as  a 
protection  against  feudal  exaction.^  But  the  fundamental  rule 
of  which  it  is  a  picturesque  expression  is  earlier  than  the  feudal 
period;^  it  dates  back  to  barbarian  times*  and  is  found  again  in 

1  Innocent  IV,  "Com.  s.  Decrct.,"  Dig.  X,  2,  19,  8;  Balde,  "Const.,"  337, 
no.  12;  Cujas,  on  Law  30,  Dig.,  4,  6  ("possessiodefuncti  quasi  junctadescendit 
in  heredem")  (c/.  D.,  41,  2,  23),  says  that  the  maxim,  "The  dead  enfeoffs 
the  living,"  is  derived  from  an  inaccurate  interpretation  of  this  rule  ("vox 
de  via  collecta").  Cf.  Viollet,  831;  "Gr.  Cout.,"  II,  21;  "Bourg.,"  310.  But 
seisin  existed  previously  to  the  revival  of  the  Roman  law.  See  as  to  the  Roman 
law  and  its  influence,  Slobbe,  V,  28. 

^  Lauriere  on  Loysel,  317. 

'  The  collaterals  have  the  seisin,  but  this  does  not  prevent  them  from  being 
subjected  to  the  payment  of  the  seigniorial  fees;  "Paris,"  318,  33. 

*  See  texts  in  Heusler,  op.  cit.:  "pater  me  vestitum  dimisit." 

667 


§  474]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

all  the  countries  where  the  Germanic  influence  has  made  itself 
felt,  —  not  only  in  Germany  ^  and  in  France,  but  in  Italy ,^  in 
Spain,^  and  in  England.^ 

However,  in  the  last  stage  of  our  old  law  hereditary  seisin  is 
not  very  clearly  distinguished  from  the  "successio  in  universum 
jus  defuncti"  of  the  Roman  law.  The  acquiring  of  the  possessory 
actions  seems  like  a  necessary  consequence  of  the  acquiring  of 
the  succession;  and,  if  one  is  to  believe  Lebrun  and  Pothier,  the 
old  maxim,  "The  dead  gives  the  seisin  to  the  hving,"  would  be 
understood  to  apply  to  ownership  as  well  as  to  possession.^ 
Owing  to  this  alteration,  it  was  not  difficult  to  connect  with  it, 
as  was  sometimes  done,  the  obligation  which  was  imposed  upon 
heirs  to  pay  debts  "ultra  vires"  and  the  declarative  effect  of 
partition,  —  two  institutions,  one  Roman  and  the  other  Custom- 
ary, but  both  entirely  foreign  to  possession.^ 

§  475.  Acceptance  and  Rejection.  —  The  logical  outcome  of 
the  very  old  law  was  that  the  heir  did  not  have  to  accept  formally 
the  succession;  if  he  did  not  renounce  it,  that  was  sufficient  to 
make  him  acquire  it.  But  the  doctrine  which  prevailed  drew  its 
inspiration  from  the  Roman  law  and  likened  the  heir  at  law  to  the 
testamentary  successor,  and  gave  both  of  them  the  choice  between 
three  courses,  —  acceptance  pure  and  simple,  renunciation,  accep- 
tance with  the  privilege  of  inventory. 

§  476.  The  Same.  —  (A)  Acceptance  pure  and  simple  took 
place  "  verbis  aut  facto,"  by  taking  the  title  of  heir  or  by  playing 
the  part  of  heir,  —  "  He  who  takes  the  possessions  of  the  succes- 
sion to  the  siun  of  five  sous  performs  the  act  of  an  heir."  ^  By 
this  means  the  one  who  was  capable  of  inheriting  barred  himself 
from  making  use  of  the  power  of  renunciation  and  came  within  the 
contemplation  of  the  Customs. 

§  477.   The  Same.  —  (B)   The  renunciation  ^  was,  on  the  con- 

1  "Dipl."  of  1322  in  Kraut,  "Privatr.,"  §  159. 

^  Italian  statutes:  Fertile,  op.  cit.;  Lattes,  "Studi  Sen.,"  II,  319. 

3  L.  de  Toro,  45;  Covarruvias,  "Op.,"  II,  3,  5;  De  Paz,  "De  Tenuta,"  1671. 

*  Pollock  and  Maitland,  II,  60;  Bracton,  fo.  31  h.,  262,  434  h. 

6  Ferriere,  on  "Paris,"  318,  1,  2;  Valin,  on  "La  Rochelle,"  56,  21. 

8  Civil  Code,  724;  Pothier,  V,  3,  1.  This  is  the  counterpart  of  the  acquiring 
of  the  assets. 

'  Loysel,  319;  "L.  Rib.,"  67. 

8  "Burg.,"  65;  "Wis.,"  5,  1,  6;  7,  2,  19  and  5,  8.  Cf.  Commentary  on 
"Liut.,"  57.  Germany:  no  example  of  renunciation  before  the  fourteenth 
century:  Heusler,  II,  570.  At  Neufchatel,  in  Switzerland,  the  children  of  the 
insolvent  could  not  renounce  until  the  nineteenth  century.  Greek  law :  Dareste, 
"Nouv.  Et.,"  88.  English  law:  the  heir  of  the  real  property  cannot  renounce, 
but  is  only  held  liable  for  the  debts  up  to  the  amount  of  the  value  of  the  prop- 

668 


Topic  3]   ACQUISITION  OF  HEIRSHIP  AXD  ITS  CONSEQUENCES    [§  478 

trary,  in  opposition  to  the  spirit  of  the  old  law.  It  was  tolerated, 
witness  the  maxim,  "He  is  not  heir  who  does  not  wish  to  be"; 
and  people  capable  of  inheriting  had  recourse  to  it  from  the  time 
when  they  found  themselves  held  for  debts  "ultra  vires"  of  the  in- 
heritance. But  the  disfavor  which  attached  to  it  was  shown  by  the 
fact  that  it  was  impossible  to  make  an  implied  rejection.^  Origi- 
nally, this  rejection  assumed  a  formal  declaration  and  s^Tiibolical 
formalities,  such  as  the  casting  of  one's  belt  into  the  grave  of  the 
deceased.^  From  the  thirteenth  century,  at  least,  it  is  carried  out 
by  means  of  a  declaration  in  court;  ^  a  declaration  made  to  the 
clerk  and  a  notarial  deed,  which  were  both  equally  in  use  after 
this,  are  only  variations  of  it.^  It  is  also  met  with,  it  is  true,  under 
the  form  —  to-day  prohibited  —  of  renunciation  to  future  suc- 
cession. From  the  twelfth  century,  at  the  latest,  it  is  imposed 
upon  daughters  who  have  been  given  a  marriage  portion,  and  it 
is  specified  in  their  contract  of  marriage.^  If  the  heir  neither  ac- 
cepted nor  rejected,  he  could  decide  at  any  time,  because  the 
power  of  renunciation  could  not  be  lost  by  prescription.^  But, 
once  having  taken  place,  renunciation  as  well  as  acceptance  could 
not  be  revoked.^ 

§  478.  The  Same.  —  (C)  Time  to  make  an  inventory  and  deliber- 
ate. Drawing  their  inspiration  from  the  Roman  law  and  modify- 
ing it  at  the  same  time,  they  gave  the  heir  a  period  of  three  months 
to  post  himself  as  to  the  amount  of  the  succession,  and,  forty 
days  to  choose  from  the  various  courses  which  were  open  to  him. 
During  this  respite  the  actions  of  creditors  of  the  inheritance  were 
not  barred,  but  suspended.^ 

erty.  The  heir  of  the  personal  property  can  renounce  at  law,  but  is  not  de- 
jirived  of  his  share  of  the  succession  if  anything  remains  after  the  debts  have 
been  paid. 

1  "Gr.  Gout.,"  2,  40,  p.  365;  J.  Lecoq,  "Q.,"  489;  "Paris,"  317. 

2  Bouthors,  "Sources  du  Dr.  rur.,"  p.  538;  De  Ribbe,  "Soc.  prov.,"  p.  142; 
"  Frioul,"  Pertile,  IV,  126.  Alsace,  Siobbe,  V,  51.  Cf.  renunciation  of  the  com- 
munity by  the  wife. 

^  Renunciations  entered  in  the  register  of  the  "Parloir  aux  Bourgeois" 
(thirteenth  century).  Cf.  Italy,  Pertile,  IV,  126:  permission  of  the  bishop,  dues 
to  be  paid,  disabilities:  "L.  Feud.,"  2,  45  and  51.  At  Rome  the  sons  of  traders 
are  held  liable  for  their  debts,  even  if  they  have  renounced  the  inheritance. 

«  Loysel,  318. 

5  Givil  Gode,  791;  cf.  "Aries,"  1142,  etc.;  "Et.  de  St.  Louis,"  I,  9;  Lebnm, 
3,  8,  1;  Law  of  5  Frim.,  22  Vent.,  year  II;  18  Pluv.,  year  V;  Lattes,  "Dir.  cons. 
Lomb.,"  261. 

*  Variations  in  the  Customs:  Pasquier,  "Inst.,"  491;  Pothier,  III,  4,  2; 
Merlin,  see  "Abstent";  Civil  Gode,  789;  Villequez,  "N.  R.  H.,"  1889,  733. 

'  Givil  Code,  783,  790;  Pothier,  3,  1,  1,  3  and  4;  contra,  Lebrun,  3,  8,  2,  61 
(one  may  withdraw  one's  renunciation). 

8  G.  Durand,  "Specul.,"  II,  2,  16;  J.  Faber,  "Inst.,"  p.  60,  ed.  1582  (3 

6G9 


§  479]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

§  479.  The  Same.  —  (D)  The  privilege  of  the  inventory  ^  offers 
the  same  benefits  as  acceptance  and  rejection;  the  heir  is  not 
Uable  for  the  debts  "ad  infinitum,"  and  the  balance  of  the  heredi- 
tary assets,  once  the  debts  had  been  paid,  belonged  to  him.^  But, 
as  this  Roman  institution  was  almost  equal  to  a  renunciation, 
royal  letters  were  demanded  in  countries  of  Customs  in  order  to 
allow  recourse  to  be  had  to  it,^  and  the  heir  using  it  found  him- 
self excluded,  at  least  in  the  collateral  line,  by  the  man  capable  of 
inlieriting  who  was  of  a  degree  further  removed  and  who  accepted 
purely  and  simply.^  Moreover,  the  administration  and  the  liqui- 
dation of  the  hereditary  possessions  and  the  payment  of  the  debts 
were  incumbent  upon  the  accepting  heir  thus  placed  at  the  head 
of  a  patrimony  which  was  insolvent,  and  for  whose  acts  he  was 
made  responsible.^  By  means  of  a  sort  of  assignment  of  posses- 
sions he  had  the  power  to  escape  from  this  role  of  assignee  in  bank- 
ruptcy, which  was  sometimes  rather  dangerous;  he  was  at  liberty 
to  give  up  the  succession  to  the  creditors  and  the  legatees.^ 

§  480.  Partition  between  Co-heirs.^  —  No  one  can  be  compelled 
to  live  in  a  state  of  joint  possession,  says  Article  815  of  the  Civil 
Code.  This  is  an  expression  of  the  modern  law,  a  law  very  hostile 
to  the  community  system  and  the  silent  partnership  of  other  times. ^ 

months);  "Cout.  Not.,"  84,  85;  "Gr.  Cout.,"  p.  364;  Boutaric,  I,  77;  Masuer, 
32,  28;  Pasquier,  "Inst.,"  p.  425;  "Arr.  de  Lam.,"  "Succ,"  9;  Pothier,  VIII, 
125;  Serres,  II,  19;  "Ord."  of  1667,  7,  1;  "T.  A.  C,  Bret.,"  316. 

1  "Cod.  Just.,"  6,  30,  22  (Justinian's  "lex  Scimus").  In  countries  of  Cus- 
toms a  confusion  of  the  "jus  deliberandi"  [and  the  privilege  of  inventory. 
The  "  Ord."  of  1667  generalizes  this. 

^  The  hereditary  share  of  the  person  renouncing  was  sometimes  looked  upon 
as  having  no  owner.  But  this  rather  impractical  idea,  that  the  inheritance 
could  only  be  put  off  once,  gave  way  to  the  Roman  system  of  the  successive 
transmission  to  the  different  kinds  of  heirs,  the  furthest  removed  being  in- 
vested if  there  were  none  nearer  than  they. 

3  "Cout.  Not.,"  84  (in  1366);  Pasquier,  p.  426  (case  of  Loysel).  Required 
in  countries  of  written  law.  Edicts  of  1697  and  1704;  Argou,  IV,  5;  Breton- 
nier,  see  "B6n.  d'Inv."  "R.  de  Leg.,"  IX,  311;  c/.,  however,  Serres,  II,  19. 
Done  away  with  by  the  Law  of  Sept.  7-11,  1791.  —  German  law:  various 
forms;  Stobbe,  V,  53. 

■•  Loysel,  320;  Lauriere,  on  "Paris,"  342;  Lebrun,  3,  4,  5;  Pothier,  3,  3,  3.  — 
Prohibition  for  the  heirs  of  the  responsible  agents  of  the  pubhc  funds  to  accept 
under  the  privilege  of  inventory:  "Ord."  of  January,  1563,  16.  —  Fertile,  IV, 
137;  "Aosta,"  5,  12  (prohibition). 

^  "Paris,"  345;  see  Ferriere;  Bretonnier,  on  Henrys,  6,  4,  2  (frauds);  post, 
"Partition  of  Inheritances";  Stobbe,  V,  56;  Fertile,  IV,  137.  Cf.  Austria: 
publishing  at  law,  following  wliich  the  creditor  who  does  not  come  forward 
loses  all  right:  Siegel,  p.  439. 

6  Pothier,  Introduction  to  Title  17,  "Cout.  d'Orl^ans,"  no.  53;  Stobbe,  V, 
5;  Civil  Code,  802. 

^  Fleury,  II,  328;  Glasson,  VII,  518;  Stobbe,  V,  38;  post,  II,  205. 

*  In  German  law  partition  between  heirs  can  only  take  place  at  the  expira- 
tion of  thirty  days  after  the  death.     This  period  for  mourning  is  closed 

670 


Topic  3]   ACQUISITION  OF  HEIRSHIP  .IND  ITS  CONSEQUENCES   [§  481 

Joint  possession  is  now  as  rare  as  it  formerly  was  frequent;  under 
the  old  system  customs  and  economic  conditions  often  compelled 
the  heirs,  and  especially  brothers,  to  live  in  a  state  of  community.^ 
Partitions  in  fact  affecting  the  enjoyment  of  property  were  made 
a  part  of  these  associations  and  sometimes  put  an  end  to  them. 
But  the  disfavor  which  in  the  end  affected  joint  possession  was 
extended  to  these  partitions  themselves,  no  doubt  because  the 
rights  of  the  parties  were  not  very  well  settled  in  them;  the  parti- 
tion of  right  (that  is  to  say,  which  existed  in  a  formal  agreement 
proved  by  deed)  became  necessary,  and  the  only  thing  which  could 
take  its  place  was  divided  possession  carried  on  for  thirty  years.^ 
§  481.  Forms  of  Partition.  — We  will  first  look  at  partition  in 
itself,  setting  aside  the  incidents  of  refunding  and  the  payment  of 
debts.  As  a  general  thing,  it  is  carried  out  in  a  friendly  way  by 
means  of  an  agreement;  but  in  case  of  the  disagreement  of  the 
parties,  or  if  one  of  the  persons  interested  is  under  a  disability,  it 
takes  place  in  court.  The  possessions  which  cannot  be  partitioned 
are  sold  at  auction,  and  the  price  is  distributed  among  the  co- 
parceners. "It  is  customary  for  the  eldest  to  apportion  and  the 
youngest  to  choose."  ^  The  desire  to  avoid  parceling  the  posses- 
sions scarcely  comes  to  light  until  the  last  period  of  the  old  law, 
and  then  no  more  than  in  the  Civil  Code.    The  only  object  pur- 

with  a  religious  ceremony.  During  this  time  the  peace  of  the  house  where 
the  death  took  place  must  not  be  disturbed;  the  widow  and  the  household 
must  not  leave  it;  they  live  upon  whatever  provisions  happen  to  be  there; 
and  the  heirs  cannot  be  pursued  by  the  creditors  having  claims  against  the 
inheritance:  "Sachsensp.,"  I,  22;  Stobbe,  V,  23  (bibl);  Grimm,  "R.  A.,"  481; 
Homeher,  "Der  Dreissigste"  ("Abh.  Berl.  Akad.,"  1864);  Siegel,  "K.  V.  J.," 
VII,  275;  Heusler,  II,  567.  Cf.  house  of  the  widow  or  "Beisitz,"  post,  "Mar- 
riage Contract."  Delay  in  which  to  make  an  inventory.  —  The  month  of 
mourning  is  of  Jewish  origin. 

1  Beaumanoir,G.  22  ("compagniesd'^ritage");  "A.  C,  Bord.,"56,  67,  74,  97, 
139,  143;  "Toulouse,"  91;  "A.  C,  Bourges,"  22.  Cf.  Ansegise,  IV,  23;  Thevenin, 
"Textes,"  nos.  70,  126;  "Roth.,"  167.  —  The  continuation  of  the  community, 
post;  "Orl.  A.  C,"  180;  "N.  C,"  213.  216;  Lattes,  "Dir.  consuet.  Lomb.," 
p.  267;  TFippermann, " Ganerbschaften,  1873. — Sumner  Maine,  "Inst.  Prim.," 
pp.  133,  140;  "Et.  s.  I'ancien  Dr.,"  p.  314;  Dareste,  "Nouv.  Et.,"  pp.  344,  347; 
Pollock  and  Maitland,  II,  243,  268,  272;  Blackstone,  I,  2,  12;  Glasson,  "Inst. 
Anglet.,"  VI,  261.  Also  joint  possession  of  fiefs,  partition  of  the  user,  tenure 
in  partition. 

2  Pothier,  "Succ,"  IV,  1.    Cf.  Loysel,  93,  M'Beaumanoir,  22,  7. 

'  Loysel,  390.  Allusion  to  the  barbarian  Custom:  Greg.  Tours,  4,  22; 
Du  Cange,see  "Sors,"  "Consortes";  Grimm,  480  ("Kiirrecht ");  "Sachsensp.," 
Ill,  29,  2;  Dig.  X,  3,  29,  1;  J.  Faber,  "Inst,  de  Act.,"  §  "Qusedam,"  no.  10; 
"Cod.  Th(5od.,"  7,  8,  5,  2;  J.  d'Ibelin,  148;  "  Abr.  C.  des  B.,"  49  (inverse  order); 
"Et.  de  St.  Louis,"  I,  106  (the  demandant  divides  the  property  into  shares 
and  the  defendant  chooses  one);  Beaumanoir,  16,  19:  Lord,  Compromise, 
Disposal,  Agreement;  "Bord.,  A.  C,"  139;  "Gr.  Cout.  Norm.,"  26;  "Tours," 
266,  271;  "Anjou,"  279;  Gui  Pape,  289;  Pertile,  IV,  131;  Blackstone,  I,  2,  12. 

671 


§  481]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

sued  is  equality  at  any  price,  even  to  the  details.^  When  the  di- 
vision is  not  equal,  the  co-heirs  who  are  injured  are  given  an  action 
to  rescind  the  partition,  even  although  the  shortage  is  not  more 
than  half,  —  as  the  rule  would  be  if  there  were  a  sale;  ^  and,  when 
there  is  equality,  and  it  ceases  after  partition  is  carried  out,  they 
are  given  an  action  of  warranty  because  of  the  eviction.^  If 
one  of  the  heirs  grants  his  rights  in  the  inheritance  to  a  stranger 
(that  is  to  say,  to  one  who  is  not  an  heir)  the  other  heirs  can  ex- 
clude the  grantee  by  means  of  the  repurchase  of  the  inheritance 
and  indemnifying  him.  In  this  way  the  possessions  remain  in  the 
family;  imprudent  speculators  are  kept  away,  and  a  difficult  trans- 
action is  facilitated,  a  transaction  which  is  one  of  such  a  nature 
as  to  estrange  even  those  who  are  united  by  the  bonds  of  a  close 
relationship. 

§  482.  Effects  of  Partition.  —  In  Rome  partition  was  looked 
upon  as  an  act  which  attributed  rights,  as  an  exchange  between  co- 
heirs, each  one  giving  up  to  the  others  his  undivided  rights  over 
the  part  which  they  received.^  The  Customary  law  started  with 
the  opposite  point  of  view;  it  saw  in  partition  an  act  which  de- 
clared rights,  and  not  one  which  transferred  them;  the  fact  of 
joint  possession  was  wiped  out  by  a  fiction  (retroactive  effect); 
each  co-heir  was  looked  upon  as  having  received  his  portion  direct 
from  the  deceased;  consequently,  he  was  looked  upon  as  holding 
nothing  from  his  co-heirs  and  as  having  transferred  nothing  to 
them;  everything  was  carried  out  just  as  though  the  partition  had 
taken  place  at  the  very  moment  of  the  death.  Perhaps  this  way 
of  looking  at  it  is  due  to  the  fact  that  the  Roman  analysis  of  par- 
tition was  too  nice  for  our  old  jurisconsults;  they  did  not  grasp  it 
very  well  and  substituted  for  it  a  fiction  which  was  much  more 
simple  in  their  eyes.  It  seemed  to  them  quite  natural  to  give 
fictitious  force  to  the  period  of  joint   possession,  though  often 

^  As  to  the  question  of  parceling  in  general,  see:  H.  Passy,  "Division  des 
Heritages,"  1839;  "Syst.de  Culture,"  1846;  L.  Faucher,  "R.  D.  M.,"  1839; 
Baudrillard,  "Popul.  agricoles  de  la  France,"  188.5-93;  "Enquete  sur  I'Etat 
des  Families  et  I'Applic.  des  Lois  de  Succ."  (by  the  Society  of  Social  Economy), 
1892;  Souchon,  "La  Propr.  paysanne,"  1899;  A.  de  Brandt,  op.  cit.;  Verdelot, 
"These,"  1899;  "Econ.  Fr.,"  Jan.  18,  1896;  "Reforme  soc,"  June  1,  1898; 
Aug.  1,  1899,  etc.;  "Acad.  Sc.  mor.,"  1902,  479  (cadastral  survey  notices, 
1657,  in  Champagne);  Albert,  "Lib.  de  tester.,"  1900. 

2  Pothier,  "Succ,"  IV,  6.    Cf.  Law  of  the  2d  Prair.,  year  VII. 

3  Pothier,  "Succ,"  IV,  5,  4;  Lehrun,  IV,  1,  36.    Contract  for  rents. 

^  Dig.  "  Com.  div.,"  6,  8  (contrary  opinion  by  Trehntius,  Dig.,  "de  us.,"  31); 
"Petrus,"22,  23;  "F.  Sirm.,"  25;  "Bign.,"  18;  "Andec,"  54;  Marculfe,  II, 
14;  "App.  Marc,"  39;  Thevenin,  16,  53,  108,  etc 

672 


Topic  3]   ACQUISITION  OF  HEIRSHIP  AND  ITS  CONSEQUENCES    [§  482 

very  short.^  Perhaps  one  should  connect  the  Customary  system 
with  the  old  forms  of  joint  possession  (community  or  joint 
ownership  "zu  gesammter  Hand");  the  co-heirs  shared  only  the 
enjoyment  of  the  property,  and  this  only  during  the  joint  posses- 
sion; they  had  a  right  to  dispose  of  the  whole  or  part  of  the  in- 
heritance on  condition  only  of  all  acting  together;  when  the  law 
changed  on  these  points,  the  old  solutions  were  kept  for  new 
reasons.^ 

As  is  usually  the  case,  the  theory  was  not  formulated  first  of  all 
in  the  form  of  a  general  rule;  it  was  limited  to  practical  questions. 
It  is  the  fiscal  aspect  of  the  question  which  is  the  first  to  appear  in 
the  texts  in  the  thirteenth  century,^  and  the  documents  of  this 
period  do  not  show  any  trace  of  the  innovation.  It  is  laid  down 
there  that  in  case  of  partition  the  heirs  do  not  have  to  pay  the 
lord  the  customary  profits  upon  alienation.^  The  transfer  which 
took  place  owing  to  death  already  carried  with  it  the  payment  of 
the  seigniorial  rights  (relief,  etc.) ;  it  would  have  been  very  hard 
to  have  demanded  others  (fifths,  lord's  due,  and  fees)  when  par- 
tition took  place,  especially  when  in  the  majority  of  cases  this 
proceeding  followed  very  closely  after  the  death.  To  this  prac- 
tical reason  there  was  added  a  theoretical  basis.  As  a  result 
of  partition  each  party  interested  became  the  full  owner  of  his 
portion,  instead  of  having  joint  rights  over  the  entire  succession 
(though  in  reality  he  gained  nothing  and  lost  nothing).  When 
Roman  law,  which  was  progressing,  caused  the  character  of  an 
exchange  to  be  attributed  to  partition,  at  least  in  the  School  and 
in  the  books,  the  question  of  the  seigniorial  rights  became  more 
complicated.  The  followers  of  Bartolus  were  divided.  For  some 
of  them,  the  lord's  due  and  fees  not  being  payable  in  case  of  an 

1  To  the  contrary,  Planiol,  op.  cit.  But  the  fiscal  question  is  settled  by 
the  "L.  de  Jostice,"  loc.  cit.,  and  by  the  Bartolists  before  it  is  thought  of  ap- 
plying this  principle  in  civil  matters. 

2  To  this  effect  cf.  the  German  law,  especially  with  regard  to  fiefs.  The  par- 
tition of  the  issues  ("Mutschierungj"  "Ooerterung")  could  not  give  rise  to 
the  payment  of  these  seigniorial  dues. 

'  Various  systems  of  accounting  for  the  customary  rule.  —  1st.  A  borrowing 
from  the  L.,  .30,  D.,  4,  6.  —  2d.  Lebrun,  "Succ,"  IV,  1,  21,  connects  it  with 
the  seisin.  But  the  rule  is  applied  to  testamentary  successors,  and  even  to 
some  kinds  of  members  of  communities.  —  3d.  It  is  a  weapon  forged  by  the 
jurists  against  feudal  exaction.  But  it  would  have  been  useless  for  the  descend- 
ants, for  they  were  not  compelled  to  pay  the  transfer  tax:  "Gr.  Cout.," 
p.  304;  Beaumaiioir,  27,  4.  —  4th.  It  is  preferable  to  see  in  it  a  common  opinion 
which  made  it  prevail  over  the  Roman  doctrines  because  of  its  practical  ad- 
vantages: Beaumanoir,  14,  20,  21;  "Jostice,"  p.  241;  "Toulouse,"  125,  126; 
D'Argentre,  "Prat,  des  Nobles,"  q.  40;  Loysel,  542. 

*  Beaumanoir,  52,  24. 

673 


§  482]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

exchange,  partition  benefits  by  this  favor;  yet  difficulties  are  pre- 
sented with  respect  to  partition  with  settlement  and  with  respect 
to  sale  at  auction,  —  two  proceedings  which  are  more  like  sale. 
For  the  others,  partition  was  a  compulsory  alienation,  and  they 
concluded  therefrom  that  it  should  be  free  from  the  payment  of  the 
seigniorial  rights.  This  was  rather  a  doubtful  theory,  for  in  the 
old  Customs  the  compulsion  of  partition  was  scarcely  percepti- 
ble, and,  by  admitting  that  a  transfer  was  indispensable,  there  was 
no  excuse  to  deprive  the  lord  of  his  rights.^  It  was  easier  to 
say  with  certain  jurists  that  partition  was  an  act  "sui  generis," 
which  was  carried  out  without  intention  of  a  transfer;  but,  if 
this  were  done,  one  had  to  fall  back  on  the  first  explanation; 
this  came  to  the  same  thing  as  saying  that  partition  was  not  an 
exchange,  which  is  contrary  to  the  Roman  doctrine.  This  is  the  ex- 
planation which  prevailed,  and  it  triumphed  in  so  absolute  a  man- 
ner that  to  ordinary  partition  were  likened,  after  some  dispute,  the 
equivalent  acts  whose  object  was  to  put  an  end  to  joint  possession, 
such  as  partition  with  settlement,^  sale  at  auction,^  etc. 

The  Roman  theory  and  the  Customary  theory  were  divided  on 
another  point,  in  that  which  concerns  the  outcome  of  mortgages 
given  during  the  joint  possession  by  one  of  the  co-heirs.  If  the 
property  mortgaged  falls  into  the  portion  of  another  heir  the  mort- 
gage still  continues,  according  to  the  Roman  doctrine,  because 
the  actual  owner  is  the  assignee  of  the  mortgagor;  it  disap- 
pears, on  the  contrary,  according  to  the  Customary  doctrine,  be- 
cause the  mortgagor  is  looked  upon  as  never  having  been  the  owner. 
It  seems  as  though  this  question  had  only  been  brought  up  in  the 
sixteenth  century.^    At  this  time  the  system  of  mortgages  in  the 

1  Balde,  "L.  si  domus,  D.,  de  leg.,"  1;  J.  Andrece,  "Ad  Specul.  de  Contr 
emt.,"  §  "nunc  dicend";  Alb.  de  Rosate,  I,  110;  Boutaric,  I,  83;  Gui  Rape,  48,  92 
Louet,  "L.,"  9;  Guy  Coquille,  on  "Niv.,  Fiefs,"  24;  D'Argentre,  on  "Bret.,"  73 
4;  "Advis.  s.  le  Part,  des  Nobles,"  q.  40. 

*  Dues  which  must  be  paid  in  case  of  an  exchange  with  a  settlement 
"Toulouse,"  125,  126,  143;  Beaumanoir,  27,  5;  "Jostice,"  p.  241  (or  partition) 
but  not  in  the  case  of  a  partition  between  co-heirs,  "Orleans,  A.  C,"  54 
"N.  C,"  15,  113;  Dnmoulin,  on  "Paris,"  "Fiefs,"  33,  1,  69  ("principalis  intea 
tio  fuit  dividere")  (bibl.);  "Censive,"  78,  1,  170;  D'Argentre,  on  "Bret.,"  73 
"de  laudim,"  no.  2453;  Louet,  "L.,"  9. 

^  "Orleans,"  114:  the  fees  for  a  sale  must  be  paid  in  case  there  is  anadjudi 
cation  to  a  stranger,  but  not  if  it  accrues  to  the  benefit  of  a  coparcener:  "  Paris 
N.  C,"  80;  Brodeau,  on  this  article  (bibl.) ;  "  Arr."  by  Lamoignon,  11,  5;  Glasson 
VII,  512. 

*  Louet,  "H.,"  11;  Ordersof  1569,  1571,  1581,  and  1595;  G.  Coquille,  "Q.,' 
27;  Pothier,  "Succ,"  4,  5,  1.  —  The  question  had  already  come  up  in  1538 
with  regard  to  the  case  of  a  feudal  distraint  carried  out  upon  the  share  of  a 
co-heir:  Dumoulin,  on  "Paris,"  "Fiefs,"  1,  9,  43. 

674 


Topic  3]   ACQUISITION  OF  HEIRSHIP  AND  ITS  CONSEQUENCES    [§  483 

old  law  was  finally  established;  from  every  notarial  deed  there 
sprang  a  general  mortgage  over  the  present  and  future  possessions 
of  the  parties,  and,  as  there  is  no  one  who  at  some  time  or  other 
does  not  draw  up  a  deed  before  a  notary,  the  majority  of  inherit- 
ances were  found  to  be  encumbered.  Under  this  system  the  Roman 
theory  of  partition  would  have  had  the  most  grievous  results;  in 
fact,  if  it  had  been  applied  each  time  that  the  inheritance  of  one 
of  the  co-heirs  had  been  mortgaged  —  and  we  have  seen  that  this 
happened  nine  times  out  of  ten  —  this  pre-existing  mortgage, 
which  was  often  unknown,  would  have  extended  over  all  the 
possessions  of  the  inheritance  and  would  have  survived  the  par- 
tition. The  co-heirs  who  owed  nothing  would  have  been  exposed 
to  the  prosecution  of  the  mortgage  creditors  and  all  their  co-heirs; 
they  would  have  been  dispossessed  and  the  partition  would  have 
had  to  be  made  over  again.  These  disadvantages  caused  the 
courts  of  the  sixteenth  century  (especially  1595)  to  prefer  the 
Customary  theory.  But  one  would  be  mistaken  if  one  thought 
that  the  law  logically  followed  out  in  all  details  the  principle 
of  the  declaratory  effect  of  partition.  Upon  many  questions  it  has 
only  bequeathed  us  uncertainties.^ 

§  483.  Refunding.  —  In  order  to  make  up  the  mass  to  be  par- 
titioned, one  is  not  limited  to  combining  the  assets  and  the  lia- 
bilities of  the  deceased;  it  is  necessary  to  join  thereto  gifts 
which  the  heirs  have  received  from  the  deceased;  after  which  the 
partition  can  take  place  without  one  of  them  being  found  to  have 
profited  at  the  expense  of  the  others.^  This  regard  for  equality 
contrasts  with  the  system  of  privileges  which  dominates  the  sys- 
tem of  successions  on  intestacy.  But  those  privileges  are  peculiar 
to  feudal  matters,  or  have  for  their  object  the  keeping  up  of  the 
family;  outside  of  these  two  conceptions  one  only  meets  with 
equalizing  provisions. 

The  children  remaining  in  the  family  community^  were  the 
only  heirs  originally;  as  everything  which  they  acquired  went  to 
increase  the  family  inheritance,  they  could  neither  keep  their 

*  Capacity  of  partitioning,  warranty  in  case  of  eviction:  Pothier,  4,  5,  4; 
Lebrun,  4,  1,  56.  Repurchase  of  joint  possession,  Pothier,  "  Coramunaut^," 
146.  Succession  including  at  the  same  time  movables  and  immovables  and 
accruing  to  one  of  the  spouses,  ibid.,  140.  —  Partition  is  not  subject  to  the 
repurchase  by  a  person  of  the  same  hneage:  Chassaneus,  on  "Bourg.,"  10, 
9,  19. 

2  Leroux  de  Lincy,  op.  cit..  p.  121  ("Sent,  du  Pari,  aux  B.,"  1293). 

3  Du  Cange,  see  "Cella  ;  Beaumanoir,  14,  26;  Ragueau,  see  "Cell6^ 
B.  de  Richebourg,  III,  258. 

675 


§  483]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

savings,  enrich  themselves  by  their  own  industry,  nor  receive 
gifts.  Thus  equahty  between  them  was  assured.^  But  when  those 
who  had  been  put  out  of  the  community  were  admitted  to  the 
succession,  whether  they  were  children  who  had  been  emancipated 
or  daughters  who  had  received  a  marriage  portion,  this  was  no 
longer  the  case.^  Sons  who  had  been  emancipated  had  worked 
for  their  own  gain;  those  who  lived  in  the  house  had  only  worked 
for  the  family;  the  family  belongings,  that  is  to  say,  the  inherit- 
able estate,  took  any  earnings  received  by  these  latter.  It  would 
have  been  iniquitous  to  call  those  who  were  emancipated  to  share 
in  the  partition  without  compelling  them  to  contribute  their  per- 
sonal gains  to  those  of  their  brothers.  The  former  were  given  choice 
between  two  courses;  either  they  could  adhere  to  the  old  principle 
which  excluded  them  from  the  succession,  so  as  to  preserve  their 
personal  gains;  or  else  they  could  claim  their  hereditary  rights, 
but  then  they  had  to  contribute  these  gains  and  partition  them 
with  their  brothers.^ 

Advancements  of  inheritance  which  sons  or  daughters  had  re- 
ceived on  the  occasion  of  their  being  set  up  in  business  or  of  their 
marriage  should  also  be  refunded  to  the  mass  to  be  partitioned. 
Only  the  heir  who  had  received  gifts  from  the  deceased  was  al- 
lowed to  keep  them  if  he  preferred  it,  provided  that  he  did  not 
raise  any  claim  to  the  inheritance,  and  upon  condition  that 
they  should  not  be  excessive."*  The  old  decisions  pushed  the 
passion  for  equality  to  such  an  extent  as  to  compel  children  to  re- 
fund, not  only  the  sums  which  had  been  given  them,  but  even 
those  which  had  been  lent  them.  Pothier  thus  justifies  this  re- 
funding of  debts:  "It  would  be  an  indirect  advantage  if  a  father 
caused  his  money  in  cash  to  go  to  one  of  his  sons  while  the  others 
would  only  have  in  its  stead  a  mere  claim  against  their  brother."  ^ 

1  "Roth.,"  167,  199;  "Liut.,"  2,  4;  "Wis.,"  4,  5,  5.  On  the  contrary,  there 
was  no  refunding  among  the  Franks  unless  there  was  a  clause  providing  for 
it:  "L.  Sal.  extrav.,"  14;  Thevenin,  nos.  13,  131.  Cf.  "Rib.,"  59,  9;  "Milan," 
19;  "R.  h.  Dr.,"  1860,  534. 

2  Cf.  Roman  law:  "collatio  bonorum,  dotis";  Girard,  889. 

'  "Jostice,"  12,  21  and  24;  "Gr.  Cout.,"  p.  315;  Beaumanoir,  14,  12; 
Desmares,  236;  Leroux  de  L.,  p.  108,  109  ("Pari,  aux  Bourg.");  "Toulouse," 
91,  121;  Giraud,  II,  271;  Fertile,  IV,  129,  131. —  This  power  resulted  first 
of  all  from  the  stipulations  inserted  in  the  marriage  contract  (declaration  that 
the  gift  was  made  as  an  advancement  on  the  inheritance).  In  the  fourteenth 
and  fifteenth  centuries  this  came  to  be  a  usual  clause  and  the  "Cout.  de  Paris," 
1510,  Art.  123,  impUed  it  after  some  discussion:  Lamoignon,  "Arr.  des  Rap- 
ports."—  Cf.  "Sachsensp.,"  I,  13;  Lauriere,  on  "Paris,"  278;  Lebrun,  2,  3,  6, 1. 

'  Loysel,  351;  "T.  A.  C,  Norm.,"  9,  13,  14. 

^  Sixteenth  century:  Loiiet,  "R.,"  13;  Meynial,  "These,"  1886;  Deschamps, 
id.,  1889. 

676 


Topic  3]   ACQUISITION  OF  HEIRSHIP  AND  ITS  CONSEQUENCES    [§  483 

It  was  especially  as  between  children  or  descendants  that 
equality  seemed  to  be  desirable.^  As  to  ascendants  or  collaterals, 
many  of  the  Customs  did  not  compel  them  to  refund;  ^  and  still 
less  was  there  any  obligation  of  this  nature  incumbent  upon  tes- 
tamentary successors.  As  among  children,  more  or  less  strictness 
is  shown  according  to  the  Customs.  In  this  respect  there  are 
three  principal  classes  to  be  distinguished.  —  1st.  Customs  of 
absolute  equality,  which  are  most  like  the  old  law,  make  the 
refunding  compulsory,  even  in  the  case  of  descendants  who  re- 
nounce the  succession.^  By  this  means  every  fraud  affecting 
equality  is  found  to  be  averted.^  —  2d.  In  the  Customs  of  simple 
equality  ("Paris")  the  heir  can  avoid  carrying  out  the  refunding 
by  renouncing  the  succession;  but,  if  he  accepts  it,  he  must  always 
refund,  even  when  the  deceased  has  exempted  him  therefrom.^  — 
3d.  A  few  Customs  called  Customs  of  reference-legacy  ("pre- 
ciput" )  allowed  the  heir  to  escape  the  refunding  by  renouncing  the 
succession,  and  allowed  the  deceased  to  exempt  him  therefrom, 
even  although  he  had  accepted  the  succession.^  In  this  latter 
case  he  took  what  was  given  to  him  by  way  of  reference-legacy  over 
and  above  his  share.  The  Law  of  the  17th  Nivose,  year  II,  could 
scarcely  fail  to  adopt  the  system  of  the  Customs  of  absolute 
equality,  so  well  did  it  agree  with  its  tendencies;  but,  even  be- 
fore the  Civil  Code,  a  Law  of  the  4th  Germ.,  year  VIII,  gave  up 

'  Cf.  post,  "Reservation,"  "Disposable  Portion,"  P.  de  Fontaines,  34,  10; 
"Et.  de  St.  Louis,"  I,  136;  II,  26;  "L.  d.  Droiz,"  no.  83;  Beaumanoir,  14; 
"Gr.  Gout.,"  I,  40;  Boutaric,  I,  103;  "Jostice,"  12,  21,  5;  "Ass.  de  J6r.," 
"G.  des  B.,"  170.  —  From  this  it  follows  that  the  refunding  does  not  benefit 
the  creditors:  Loysel,  355. 

2  Loysel,  355.  Privileges  exempt  from  the  refunding,  ibid.,  352;  Pothier, 
4,  2,  3;  Ferriere,  on  "Paris,"  304;  Civil  Code,  852.  —  German  law:  weapons, 
horse,  etc.:  "Sachsensp.,"  I,  10. 

'  AH  gifts  are  presumed  to  be  an  advancement  of  inheritance;  they  can 
only  be  kept  through  one's  right  as  an  heir. 

*  "Summa  Norm.,"  35;  "T.  A.  C.,  Bret.,"  207;  "Anc.  Gout.  d'Anjou," 
ed.  B.-B.,  Table,  see  "Rapport";  "Anjou,"  260,  337;  "Mame,"  278,  349; 
"Tourainc,"  309,  etc.;  Law  of  the  17th  Niv.,  year  II,  Art.  42.  Cf.  "Lois 
civ.  interm.,"  see  "Rapport";  Esmein,  p.  162. 

*  "Paris,"  303;  "Orleans,"  304,  and  the  majority  of  the  Customs.  One 
cannot  be  heir  and  donee  at  one  and  the  same  time:  Beaimianoir,  7,  19  et  seq.; 
14,  14;  70,  58,  distinguishes  between  the  refunding  and  the  reduction.  From 
this  there  arises  the  "refunding  for  another,"  —  that  is  to  say,  the  obliga- 
tion imposed  ui)on  an  heir  to  refund  the  gifts  made  to  liis  spouse,  to  his 
father,  and  to  his  son;  for  they  arc  looked  upon  as  persons  interposed: 
Loysel,  353  et  seq.;  "Or.  Gout.,"  pp.  365,  371;  Civil  Code,  847;  Pothier,  4, 
3,  5. 

6  "Nivcrn."  27,  8;  "Berry,"  19,  42;  "Bovubon,"  368;  Fertile,  IV,  131. 
Cf.  Roman  law.  Civil  Code,  Art.  840.  The  refund  is  only  due  because  the  in- 
tention of  the  deceased  was  to  maintain  equality  among  the  heirs.  As  to 
the  "Abfindungen"  in  the  German  law,  cf.  Slubbc,  §§  324,  290. 

677 


§  483]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

this  system  in  order  to  become  more  like  the  more  modern  system 
of  the  Customs  of  reference-legacy. 

The  refunding  of  inmiovables  generally  took  place  in  kind,  ex- 
cepting in  the  Customs  of  simple  equality,  where  it  could  be  car- 
ried out  hy  taking  less  if  there  were  immovables  of  equal  value  and 
quality  which  formed  a  part  of  the  succession.  The  encumbrances 
(servitudes,  mortgages)  which  had  been  created  by  the  donee  be- 
came void  when  the  property  conferred  passed  into  the  share  of  his 
co-heirs;  but  the  sales  which  he  had  made  remained  in  force,  which 
meant  that  the  refunding  took  place  by  way  of  taking  less  when- 
ever the  donee  had  disposed  of  the  possessions  which  he  had  re- 
ceived. It  was  also  by  taking  less  that  the  refunding  of  movables 
was  carried  out.^ 

Equality  may  be  disturbed  not  only  by  gifts  "inter  vivos,"  but 
also  by  legacies.  The  Customs  saw  in  this  a  still  more  pressing 
danger,  for  the  will  is  much  more  exposed  than  is  the  gift  to  undue 
influence;  the  condition  in  which  the  testator  finds  himseK  at  the 
time  when  he  makes  a  will,  that  is  to  say,  as  a  general  thing,  on 
his  death-bed,  lays  him  open  to  every  influence  and  points  him  out 
as  a  prey  to  every  kind  of  greed.  Therefore,  the  common  law 
of  the  Customs  adopted  without  any  exception,  even  in  the  case 
of  collaterals,  the  rule  that  one  cannot  be  heir  and  legatee  at  the 
same  time.^  The  only  advantage  which  the  heir  drew  from  a 
legacy  was  the  power  of  choosing  between  this  legacy  and  his 
hereditary  rights. 

§  484.  Payment  of  Debts.  —  The  old  law  only  by  degrees  ar- 
rived at  the  revived  Roman  law  doctrine  according  to  which  the 
heir  is  responsible  to  an  unlimited  extent  and  out  of  his  own 
property  for  the  debts  of  the  deceased,  —  at  least,  if  he  accepts 
without  reservation  ("creditores  propinquissimi  sunt  heredes"). 

1  Beaumanoir,  14,  13  et  seq.:  cf.  20,  9  and  10  (penalty  for  concealment); 
Pothier,  4,  2,  7;  Lebrun,  3,  6,  3  and  4.  Withholding:  "Paris,"  305.  Offices: 
Argou,  II,  28. 

2  "Gr.  Cout.,"  369;  "Ohm,"  I,  in  1261;  "Pari,  aux  B.,"  Aug.  13,  1293; 
Boutaric,  I,  103;  Ferriere,  on  "Paris,"  300;  Pothier,  VIII,  p.  179,  ed.  B.:  "A 
means  of  preserving  peace  and  harmony  in  families.  ...  It  was  all  the  more 
important  to  maintain  this  equality  with  respect  to  warlike  and  ferocious  men 
such  as  our  ancestors  were,  —  men  who  were  more  susceptible  to  jealousy 
than  others  and  always  ready  to  come  to  blows  and  to  kill  for  the  slightest 
thing."  In  the  case  of  gifts  this  danger  was  less,  because  here  it  was  a  matter 
of  something  that  had  been  consummated.  The  inconsistency  between  the 
capacity  of  heir  and  that  of  legatee  did  not  exist  in  the  countries  of  written  law, 
where  only  the  refunding  of  gifts  "inter  vivos"  was  recognized,  —  a  refunding 
which  one  can  always  dispense  with  by  renouncing  the  gifts.  Cf.  Law  of 
March  25,  1898. 

678 


Topic  S]   ACQUISITION  OF  HEIRSHIP  AND  ITS  CONSEQUENCES    [§  484 

In  early  times  debts  were  personal,  not  capable  of  transfer  or 
of  succession;  ^  they  died  with  the  debtor.^  Having  become  in- 
heritable,^ they  only  conferred  rights  over  the  movables  of  the 
debtor;  ■*  they  were  charged  to  the  heir  of  the  movables  and  only 
up  to  the  amount  of  the  value  of  the  latter,^  because  the  head  of 
the  family  has  not  the  right  to  destroy  the  family's  patrimony. 
As  ideas  progressed,  the  hereditary  immovables  became  liable 
just  as  the  movables;  and  finally  they  came  to  impose  upon  the 
heir  the  obligation  of  paying  debts  "ultra  vires"  (in  excess  of 
assets)  out  of  both  the  succession  and  out  of  his  own  possessions.^ 
This  evolution  has  already  been  partly  explained  under  the  subject 
Obligations.   It  only  remains  to  show  how  the  hereditary  liabilities 

1  Primitive  system  of  transactions  for  cash  and  promises  followed  by  the 
giving  of  the  pledge  or  of  surety,  which  is  rather  a  method  of  payment  than  a 
promise.  However,  even  in  the  barbarian  period  certain  laws  charged  the 
debts  to  the  heirs:  "Rib.,"  67;  "Roth.,"  362,  369,  323;  "\Vis.,"  5,  1,  2;  2,  6; 
"Arech."  (774),  10  (debtors  who  give  away  all  their  possessions  "inter  vivos" 
in  order  to  defraud  their  creditors);  Fertile,  IV,  134,  137  (sons,  whether  sep- 
arated or  not  from  their  fathers).  —  Survival  of  the  old  law:  "The  dead  carry 
out  execution  upon  the  living,  and  not  the  living  upon  the  dead."  Declaration 
of  March  4,  1549;  Civil  Code,  877.  —  Lewis  maintains,  contrary  to  the  gen- 
eral opinion,  that  the  heir  was  originally  held  liabL  for  the  debts  "ultra 
vires,"  and  that  later  on  his  responsibility  became  less. 

2  If  the  deceased  has  committed  a  murder  the  obligation  to  pay  the  "Wer- 
geld"  is  incumbent,  not  only  upon  his  heirs,  but  upon  his  relatives,  for  the 
relatives  are  just  as  much  exposed  to  the  private  vengeance  as  are  the  heirs: 
"Sal.,"  53,  62;  "Sax.,"  2,  6;  "Roth.,"  2  (two  parts  of  the  claim  of  the  "Wer- 
geld,"  one  for  the  heirs,  the  other  for  the  relatives);  contra:  "Rib.,"  67;  12,  2; 
"Bai.,"  8,  20;  "Thur.,"  31  (heirs  alone);  Heusler,  II,  541;  Brunner,  op.  cit.; 
Dareste,  "Nouv.  Et.,"  90.  The  responsibihty  for  debts  "ex  dehcto"  is  hm- 
ited  even  under  the  family  community  system.  Were  this  not  so,  it  would 
have  been  too  easy  to  wipe  out  even  this  community  itself  by  means  of  its 
debts:  Capitulary  of  816,  5  (I,  218);  Heusler,  II,  545.  Contra,  Amira,  "Erb.," 
213.    Debts  "ex  delicto"  generally:  Siobhe,  V,  59  (bibl.). 

'  The  transmissibility  of  claims  to  the  heirs  of  the  creditor  seems  to  have 
been  far  more  easily  admitted  than  the  transmissibility  of  debts;  however,  the 
numerous  deeds  in  which  it  is  stipulated  that  the  debtor  will  pay  the  creditor 
or  his  heirs  bear  witness  to  the  fact  that  this  was  not  done  without  some  hesi- 
tation. 

*  Capitulary  of  816,  c.  5  (I,  268);  /.  d'Ibelin,  68;  "Ass.  de  Rom.,"  c.  124 
"Et.  de  St.  Louis,"  I,  15;  "A.  C.  Bourges,"  62;  "Malines,"  in  1535,  16,  35 
"Sachsensp.,"  1,  6,  2;  2,  41;  "Richst.  Landr.,"  10,  3.  —  "Lorris,"  15,  11 
"Bourbon,"  316;  "Touraine,"  310,  etc.;  "Arr."  by  Lamoignon,  op.  cit.,  1. — 
Cf.  Stobbe,  V,  50;  "Summa  Norm.,"  19,  6  (religious  authorities  charged  with 
the  liquidation  of  intestate  successions,  at  least  with  regard  to  the  movables). 
—  Post,  "Testamentary  Executors" :  they  are  given  possession  of  the  movables 
and,  consequently,  are  charged  with  paying  the  debts.     Cf.  especially  as  to 
English  law,  Lehr,  p.  724,  and  Pollock  and  Maitland,  II,  344. 

<*  "Rib.,"  67,  79;  "Burg.,"  65,  47;  "Liut.,"  57;  "Wis.,"  7,  2,  19;  7,  6,  8; 
.5,  6,  6;  "Roth.,"  224;  "Cap.,"  IV,  23;  "Gr.  Cout.  Norm.,"  59,  88;  "Schwa- 
bensp.,"  20,  10;  Esmcin,  180.  —  Cf.  power  of  renouncing  given  to  the  heir 
who  is  the  beneficiary:  Stobbe,  V,  52. 

•  "L.  Rib.,"  67,  1.  See  the  German  proverb:  "Wer  einen  Heller  erbt, 
einen  Thaler  bezahlen  muss." 

679 


§  484]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [CuAP.  IV 

followed  the  disposal  of  the  assets  and  united  with  the  latter, 
and  how  the  personal  responsibility  of  the  heir  has  been  coupled 
with  that  of  the  deceased.^ 

From  the  moment  when  the  movables  were  charged  with  the 
debts,  they  were  charged  in  the  hands  of  the  heir  as  well  as  in 
those  of  the  deceased.  In  either  case  the  responsibility  was  thus 
limited  to  a  portion  of  the  inheritance.  However,  it  became  nat- 
ural to  connect  the  liabilities  and  the  assets.  When  distraint 
upon  immovables  came  to  be  permitted,  it  was  also  authorized, 
owing  to  the  same  reason,  when  they  were  in  the  hands  of 
the  heir.  But  why  was  not  the  heir  always  considered  as  being 
held  "propter  rem,"  i.  e.  only  "intra  vires"?  Why  was  he  made 
a  personal  debtor  liable  "  ultra  vires,"  i.  e.  beyond  the  estates, 
assests,  and  why  was  he  made  subject  to  arrest  for  debt,  like 
his  intestate,  in  case  he  became  insolvent?  Various  reasons 
brought  about  this  result:  ^  1st.  The  influence  of  the  Roman  idea 
that  succession  bore  "in  universum  jus  defuncti,"  with  this  cor- 
rection, that  the  renunciation  and  the  privilege  of  inventory  pre- 
vented all  harm;  if  the  heir  suffered  because  he  had  taken  upon 
himself  too  heavy  a  responsibility,  he  had  done  it  of  his  own  free 
will.  2d.  The  practical  motive,  the  actual  confusion  of  the  property 
of  the  deceased  and  that  of  the  heir;  it  often  happened  that  the 
responsibility  became  unlimited,  as  there  was  no  means  of  know- 
ing what  property  it  should  have  been  confined  to.  3d.  The  mutual 
moral  responsibility  of  the  members  of  the  house,  the  idea  that  the 

1  The  transmissibility  of  debts  to  the  heirs  was  prepared  for  by  means  of 
those  clauses  in  deeds  by  virtue  of  which  the  debtor  bound  his  heirs  themselves: 
Marculfe,  II,  25;  Desmares,  159;  "Cod.  Cav.,"  II,  213;  "Cart.  Lang.,"  6. 
Outside  of  any  agreement,  the  mere  fact  of  having  enriched  themselves  without 
giving  any  consideration  therefor  made  them  responsible:  "Ass.  de  Jer.," 
"C.  des  B.,"  165,  171.  Thus,  according  to  the  "Saclisensp.,"  II,  17,  1,  the 
heir  is  not  responsible  for  any  debts  excej^ting  those  for  which  he  has  re- 
ceived an  equivalent,  "  wederstadinge "  and  debts  arising  out  of  theft  or  plun- 
dering; this  last  kind  of  debt  only  obliges  him  to  restore  the  thing  stolen  that 
is  found  to  be  in  the  succession;  he  does  not  have  to  pay  any  composition. 
Cf.  Heusler,  II,  546;  Stobbe,  V,  58,  60. 

2  "Wis.,"  7,  5,  8;  Beaumanoir,  15,  4;  7,  8;  P.  de  Fontaines,  15,  84;  "Cout. 
Not.,"  18,  84.  See  "Privilege  of  Inventory."  Cf.  Desmares,  loc.  cit.,  Esmein, 
"N.  R.  H.,"  87,  52,  61.  Customs  wliich  make  the  heirs  jointly  and  sever- 
ally responsible:  "Amiens,"  91,  159;  "Norm.,  Regl.,"  1666,  159;  Masuer,  31; 
Lebrun,  4,  2,  7,  11.  — Stobbe,  V,  52:  "ultra  vires"  obligation,  even  where  the 
influence  of  the  Roman  law  did  not  exist:  Dareste,  "  Nov.  Et.,"  298,  328  (China). 
—  But  in  the  English  law  the  heir  is  only  held  liable  for  debts  up  to  the  amount 
of  the  value  of  the  property  that  he  has  received.  And,  again,  we  must  add 
that  even  almost  up  to  our  own  time  the  immovables  escape  the  creditors: 
Glasson,  "Inst.  Angl.,"  259;  Lehr,  p.  701;  Pollock  and  Maitland,  II,  117.— 
In  Mahometan  law  the  heir  is  only  held  "intra  vires":  Zeys,  "Tr.  de  Dr. 
Mus.,"  II. 

680 


Topic  3]   ACQUISITION  OF  HEIRSHIP  AND  ITS  CONSEQUENCES    [§  484 

latter  constituted  a  legal  person  whose  acts  were  connected  by 
a  close  bond,  whoever  might  be  the  doer  of  them;  the  debts  of 
the  house  passed  from  the  father  to  the  son;  at  first  religion,^  and 
then  honor,  made  it  a  duty  to  liquidate  them.  Custom  often  im- 
posed upon  the  heir  before  the  law  did  so  the  obligation  of  paying 
the  debts;  the  credit  of  the  family  profited  thereby.  The  com- 
bination of  these  ideas  led  to  remarkable  consequences:  1st.  Thus 
the  distinction  between  the  representatives  of  the  person,  that  is 
to  say,  the  heirs  at  law,  who  were  the  only  ones  held  for  debts 
"ultra  vires"  of  the  inheritance  (and  not  for  legacies),^  and  the 
successors  to  property,  that  is  to  say,  irregular  successors,  lega- 
tees, and  "universal"  donees,  who  were  held  "intra  vires"  ("bona 
non  intelliguntur  nisi  deducto  pere  alieno").^  2d.  The  privi- 
leged situation  of  relatives  or  heirs  at  law,  the  seisin  which 
they  enjoyed,  placed  them  under  the  necessity  of  advancing  the 
whole  amount  of  the  debts  ^  (under  a  levy) ;  should  one  of  them 
alone  be  called  to  the  succession,  he  could  be  compelled  to  indem- 
nify the  creditors;  if  several  of  them  were  called,  each  one  had  to 
pay  his  "man's  share,"  which  was  an  almost  inevitable  solution 
in  the  case  of  liquidations  as  complicated  as  those  of  the  old  suc- 
cession, with  the  difficulty  of  knowing  the  part  of  the  liabilities 
which  was  incumbent  upon  each  one  of  those  interested. ^  i\lore- 
over,  they  were  given  a  recourse  against  the  successors  to  the  prop- 
erty for  the  amount  that  they  had  liquidated  in  discharging  the 
debts.  According  to  the  final  regulation  ("  contribution  for  debts  ") 
every  "universal"  successor  had  to  pay  a  share  of  the  liabilities 
proportional  to  the  share  of  the  assets  which  he  received  ®  (except 
the  eldest,  who  did  not  contribute  for  his  reference  legacy).^ 

1  Restitution  carried  out  for  the  salvation  of  the  soul  of  the  deceased :  Dig. 
X,  3,  28,  14;  5,  17,  5,  etc.;  Stobbe,  V,  60;  "Const.  Sic,"  I,  25;  Fertile,  IV,  135; 
"Schwabensp.,"  V,  178.  Contra:  "Sachsensp.,"  1,  6,  2,  and  1,  18,  1.  Cf. 
Desmares,  117. 

2  Beaumanoir,  12,  6;  Desmares,  13,  1:  "debita  sunt  prajfcrenda  Icgatis"; 
L&ysel,  330;  "Et.  de  St.  Louis,"  I,  15;  Polhier,  "Succ,"  V,  4;  c/.  VIII,  p.  138  (the 
heir  is  only  held  for  legacies  which  are  "intra  vires"). 

3  Pothier,  5,  3;  Lehrun,  4,  2,  1;  Ricard,  "Don.,"  IV,  1,  112.  But  upon 
condition  of  making  an  inventory  or  some  other  deed  equivalent  to  it,  in  order 
to  be  able  to  distinguish  the  property  in  the  succession  from  their  own  personal 
belongings,  —  a  thing  which  greatly  reduced  the  dilTerence  between  represen- 
tatives of  the  person  and  successors  to  the  property:  BoiiUtric,  II,  25. 

■•  Polhier,  Y,  3  (legatees  are  not  personal  debtors).  Lehrun,  loc.  cit.  In 
certain  of  the  Customs  each  heir  is  held  liable  for  the  whole.  Distinction  be- 
tween the  personal  advance  and  the  advance  by  way  of  mortgage:  "Gr.  Cout.," 
p.  369;  Desmares,  159,  167;  "Cout.  Not.,"  18,  86,  26. 

"  Pothier,  5,  3,  1;  Lebrun,  4,  2,  1,  5;  Civil  Code,  873. 

«  "Roth.,"  385;  Fertile,  IV,  136;  P.  de  Fontaines,  p.  138. 

7  Cf.  Lauriere,  on  "Paris,"  334;  "T.  A.  C,  Bret.,"  210.     Other  reference 

C81 


§  485]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Craf.  IV 

§  485.  Separation  of  Assets.  —  The  liability  of  the  individual 
assets  of  the  heir  with  the  inherited  possessions  was  an  ad- 
vantage for  the  creditors  of  the  succession  when  the  heir  had 
resources;  if  he  were  insolvent  it  turned  against  them,  they  found 
themselves  under  the  necessity  of  competing  with  his  personal 
creditors.  In  Rome,  in  order  to  guard  against  this  disadvantage, 
a  collective  measure  in  the  interest  of  all  the  deceased's  creditors 
was  devised,  the  "separatio  bonorum,"  which  was  an  incident 
of  the  "venditio  bonorum";  by  this  means,  instead  of  one  bank- 
ruptcy proceeding,  two  occurred,  —  that  of  the  deceased  and 
that  of  the  heir;  each  one  had  its  group  of  creditors,  its  special 
assets,  and  its  administration.  In  our  old  law  the  separation 
of  assets,  although  borrowed  from  the  Roman  legal  system,  took 
on  an  entirely  different  character.  It  ceased  to  be  an  incident 
of  procedure  for  liquidation.  Each  creditor  of  the  estate  and 
each  legatee  was  authorized  to  demand  this  partition  individually 
against  each  personal  creditor  of  the  heir,  and  to  move  for  the  sepa- 
ration of  all  the  possessions  or  of  some  of  them  only.  The  heir  was 
not  dispossessed,  as  he  was  in  Rome,  but  kept  the  administration 
of  the  hereditary  possessions,  somewhat  as  in  the  privilege  of 
inventory,  and,  as  in  that  case,  letters  of  chancery  were  neces- 
sary at  first;,  in  the  seventeenth  century  they  were  no  longer 
demanded.^  Contrary  to  the  decisions  of  the  countries  of  writ- 
ten law,  where  these  letters  were  for  a  long  time  required,  and 
where  it  was  only  possible  to  ask  for  the  separation  during  five 
years,  the  Parliament  of  Paris  allowed  it  to  be  availed  of  at  any 
time  without  imposing  upon  the  creditors  the  necessity  of  making 
a  demand  at  law.^  One  sees  that  the  separation  tended  more  and 
more  to  become  a  simple  right  of  preference,  a  lien  on  the  heredi- 
tary possessions;  ^  there  was  nothing  to  prevent  the  creditors  of 
the  succession  having  their  claims  paid  out  of  the  possessions  of 
the  heir,  once  his  personal  creditors  had  been  indemnified  (doc- 
trine of  Papinian  and  Pothier).  It  would  have  been  more  strictly 
logical  had  they  made  these  two  classes  of  creditors  share  with 

legacies    in    the     German   law:    "Morgengabe,"    "Gerade,"    "Musstheil," 
etc. 

1  In  the  Swiss  law  the  local  authority  steps  in  to  supervise  the  payment  of 
these  debts,  to  compel  the  heirs  to  give  surety,  in  order  to  insure  this  payment, 
and  to  pay  them  itself,  —  a  thing  which  rendered  useless  provisions  in  the 
nature  of  the  partition  of  inheritances. 

2  Argou,  IV,  4.  The  same  in  Belgium:  Regnerus,  "Censura  Belg.,  ad.  t. 
de  Separ.";  Raviot,  on  Perier,  "Arr.  Dijon,"  291,  8:  five  years  in  the  case  of 
immovables.    Civil  Code,  SSO. 

'  Loysel,  494;  Bourjon,  "Succ,"  II,  12,  28  (privilege). 

682 


Topic  3]   ACQUISITION  OF  HEIRSHIP  AM)  ITS  CONSEQUENCES   [§  485 

each  other  out  of  the  estate  of  the  heir.  It  seemed  that 
they  were  progressing  towards  this  solution,  because  Ferriere 
shows  the  existence  of  a  practice  according  to  which  the  per- 
sonal creditors  of  the  heir  had  the  right  to  demand  a  separation  of 
the  possessions  as  against  the  creditors  of  the  deceased.  What 
was  the  good  of  this  if  the  latter  had  not  shared  with  them?  ^ 

1  Contra:  Ldmm,  IV,  2,  1,  16,  and  Pothier,  V,  4;  Civil  Code,  881. 


683 


§  486]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Ciiap.  IV 


Topic  4.    Testamentary  Provisions 


§  486.  Neither  Will  nor  Gifts  "causa 
mortis." 

§  487.  "Thinx"  and  Ceremony  of 
Appointing  an  Heir.  —  (A) 
Adoption. 

§488.  The  Same.— (B)  "Affatomie." 

§  489.  Covenants  pertaining  to  Suc- 
cession. 

§  490.  Gifts  "pro  anima"  and  Share 
of  the  Dead. 

§  491.  Testamentary  Executors. 

§  492.  The  WUl. 

§  493.  The  Same.  —  (I)  Jurisdiction. 


§  494.  The  Same.— (II)  Capacity  to 
make  a  Will  or  to  receive  by 
Will. 

§  495.  The  Same.  —  (III)  The  Ap- 
pointment of  an  Heir. 

§  496.  The  Same.  —  (IV)  Different 
Fonns  of  Wills.  (A)  The 
Canon  WiU. 

§  497.  The  Same.—  (B)  Modem  State 
of  Law. 

§  498.  The  Same.  —  (V)  Revocation 
of  WUls. 


§  486.  Neither  Will  nor  Gifts  "causa  mortis"  were  recog- 
nized in  the  Germania  of  Tacitus/  or  even  in  the  majority  of  the 
barbarian  laws.^  The  old  system  of  family  community  only  ac- 
commodated itself  to  intestate  succession,  that  is  to  say,  the  exer- 
cise by  the  relatives  of  rights  which  already  belonged  to  them.^ 
With  the  disintegration  of  the  family  the  will  became  once  more 
possible.  The  Roman  precedents  and  the  influence  of  the  Church  ^ 
were  in  favor  of  the  evolution  which  was  to  result  in  the  twelfth 
century  in  the  renaissance  of  this  institution  which  had  been 
abandoned.  But  this  result  was  only  reached  slowly.^  Those 
who  wished  to  dispose  of  their  possessions  did  so  for  a  long  time 
by  means  of  contractual  deeds  "inter  vivos"  before  employing 
the  unilateral  act  such  as  the  will  is.  The  appointment  of  an 
heir  was  only  gradually  recognized,  as  witness  the  adages :  "  Solus 
Deus  heredem   facere  potest,  non  homo";^  "Giguntur  heredes, 

1  Tacitus,  "Germ.,"  20;  Kohler,  "Z.  V.  R.,"  1887,  VII,  224;  Law  of  Gortyne; 
Dareste;  Hauss,  "Inscr.  jurid.  Grecques,"  III,  462;  Dareste,  "Nouv.  Et.," 
349. 

2  Excepting  the  laws  of  the  Burgundians  and  the  Visigoths,  4,  2,  4;  2,  5,  10. 
Cf.  "Liut.,"  6  ("Lomb.,  de  ult.  vol.,"  II,  12,  2);  Palumbo,  p.  317;  Tamassia, 
"Alienaz.,"  242;  Schulze,  "Langob.  Treuh.,"  14. 

*  Alienation  "inter  vivos"  was  in  general  use  earlier  than  the  will  for  two 
reasons:  (a)  because  it  was  easier  actually  to  carry  it  out;  (h)  because  it  was 
sometimes  necessary,  and  for  that  reason  accepted  by  the  relatives. 

*  The  Church  went  so  far  as  to  make  it  a  duty  to  make  a  will  and  to  punish 
those  who  died  intestate:  Du  Cange,  see  "Intestati"  (examples  of  third  parties 
making  wills  for  others);  i2.  Caillemer,  p.  47;  Auffroy,  p.  555;  Pollock  and  Mait- 
land,  II,  356. 

5  Before  the  thirteenth  century  instead  of  " testamentum "  they  say  "carta 
divisionalis,"  devise,  present,  "gadium":  see  Du  Cange;  Rastall,  see  "Devise"; 
Auffroy,  p.  338.    "Destinatio"  {Du  Cange,  see  "Destinare"),  destiny. 

«  Clanville,  VII,  1;  "Poitou,"  272,  etc. 

684 


Topic  4]  TESTAMENTARY  PROVISIONS  [§  487 

non  scribuntur."  They  still  said  in  our  old  Customs,  "The 
appointment  of  an  heir  is  not  made,"  ^  which  at  that  time 
had  two  meanings:  (a)  the  heir  appointed  by  will  is  not  in  all  re- 
spects like  the  relatives  called  by  Custom;  (6)  the  appointment 
of  an  heir  is  not  required  thenceforth  in  order  to  make  a  will  valid;  ^ 
thus  there  Avas  no  distinction  between  the  will  and  the  codicil.^ 

The  disfavor  with  which  the  will  was  looked  upon  was  also 
accounted  for  by  the  notion  that  "the  will  is  a  creation  of  the 
civil  law,"  whereas  the  gift  is  due  to  natural  law.  It  was  a  cur- 
rent prejudice  in  the  school  of  natural  law,  accepted  by  every- 
body in  the  eighteenth  century,  that  the  will  is  a  creation  of  the 
legislator,  something  artificial.  In  fact,  they  said,  what  could 
be  more  unnatural  than  to  carry  out  the  orders  of  a  dead  man? 
The  philosophers  who  defended  this  theory  made  themselves  with- 
out realizing  it  the  perpetuators  of  the  old  Customary  tradition, 
which  was  hostile  to  testamentary  provisions,  and  the  orators  of 
the  Revolution  were  inspired  by  these  same  ideas. 

§  487.  "Thinx"  and  Ceremony  of  Appointing  an  Heir  ("affa- 
tomie").  —  (A)  Adoption  was  almost  the  only  means,  in  use  in 
many  of  the  primitive  legislations,  of  creating  heirs  for  oneself 
when  one  was  afraid  of  dying  without  posterity.^  The  proceeding 
which  is  the  most  like  it  in  the  barbarian  laws  is  the  Lombard 
"thinx"  or  "gairethinx."  ^  The  man  who  despaired  of  having 
children  because  of  his  advanced  age  or  his  state  of  ill  health  ap- 
pointed an  heir  before  the  full  public  assembly.^  In  order  to  do 
this,  it  is  probable  that  he  proceeded  by  means  of  the  giving  of 
weapons,  in  the  same  way  as  in  political  emancipation,  thus  treating 
the  man  appointed  as  though  he  were  his  own  son.  The  Edict  of 
Rotharis  was  satisfied  with  the  presence  of  free  men  and  the  inter- 

1  Beaumanoir,  12,  58;  Loysel,  304;  "Paris,"  299. 

2  Contra:  countries  of  written  law.    But  exceptions:  "Toulouse,"  1236. 

*  Loysel,  300.  Uselessness  of  the  codicil  clause  ("ut  vici  codicillorum  scrip- 
tura  debeat  obtinere"):  Serres,  II,  23;  Argou,  II,  17. 

*  "Rib.,"  48  ("adoptare  in  hereditate  vel  adfatimi");  Dareste,  "Et.,"  Ill, 
110,  190,  263,  290,  350;  Kovalewsky,  "Cout.  Contemp.,"  203;  Post,  I,  103;  II, 
198;  bibl.  in  Lambert,  VII,  24;  Vdlroger,  "Celtes,"  p.  546;  D.  VaisseUe,  VIII, 
385. 

^  "Gairethinx,"  meaning  assembly  of  armed  free  men  ("gaira"  or  "ger" 
means  lance),  and  approval  by  this  assembly  ("vapnatak"),  cf.  Schroeder, 
24,  41.    Pappenheim,  29:  "Garethinx"  means  general  assembly;  "Liut.,"  73. 

«  With  regard  to  enfranchisement,  "Roth.,"  224:  "per  gaida  et  gisil." 
"Gisil"  means  surety.  "Gaida"  means:  1st,  according  to  some,  "sagitta": 
P.  Diac,  "H.  Lang.,"  I,  13;  "Gloss.  Matrit.,"  29.  —2d,  according  to  others, 
"aidos"  ("Roth.,"  259),  "sacramentales":  Pappenheim,  31.  Cf.  Dareste, 
"Et.,"  110;  Kohler,  "Z.  V.  R.,"  V,427;  Schroeder,  222.  As  to  what  the  "Thinx" 
was  intended  for  and  its  final  disappearance,  cf.  Palumbo,  276. 

685 


§  487]  INTESTATE  SUCCESSION,  GRATUITOUS  CONV^EYANCES  [Chap.  IV 

vention  of  a  "gisel"  or  surety,  although  it  did  not  mention  this 
formaHty  because  the  act  was  not  connected  with  the  adoption.^ 
The  Laws  of  Liutprand,  §  4,  made  it  still  simpler  by  reducing 
the  whole  to  the  "carta"  or  written  report.  The  doer  of  the 
"Thingatio"  bound  himself  not  to  dispose  of  his  possessions  to 
the  prejudice  of  the  rights  conferred  upon  the  heir  which  he  ap- 
pointed for  himself,  —  rights  which  were  the  same  as  those 
of  a  legitimate  child;  however,  he  was  at  liberty  to  alienate  his 
property  in  case  of  necessity;  still,  the  heir  then  had  the  power 
to  prevent  the  alienation  by  supplying  him  with  support.  The 
unexpected  birth  of  a  child  revoked  the  act,  and  in  the  same 
way  ingratitude  did  so  in  cases  where  it  would  have  allowed 
of  the  disinheriting  of  a  lawful  son.^ 

§  488.  The  Same.  —  (B)  Under  the  name  of  "affatomie"  ("L. 
em."  t.  46),  "adfathamire,"^  the  SaHc  Law  describes  a  transac- 
tion which  is  perhaps  derived  from  adoption,  but  which  differs 
very  much  therefrom,  owing  to  its  exclusively  patrimonial  char- 
acter. It  consists  in  three  separate  acts:  1st.  At  the  "mallus" 
which  has  been  summoned  by  the  "thunginus"  the  donor  throws 
the  "festuca"  at  the  breast  of  a  third  party,'*  by  this  means  per- 
forming a  symbolical  transfer  of  his  inheritance;  ^  at  the  same 
time  he  declares  that  he  wishes  to  give  all  or  part  of  his  fortune  to 
another  person  whom  he  designates.  —  2d.  The  person  who  has 
received  the  "festuca"  goes  and  takes  up  his  residence  in  the 
house  of  the  donor,  receives  three  guests,  who  eat  pap  with  him 
and  thank  him  for  his  welcome;  and  this  is  a  taking  possession  of 

1  "Cod.  Thdod.,"  8,  12,  1,  2;  "Roth.,"  172;  "L.  Rom.  Cur.,"  8,  5. 

2  "Roth.,"  168  et  seq.  Cf.  156,  362;  "Liut.,"  57;  "Areg.,"  10;  Geffcken,  178 
(bibl.). 

3  A  word  which  seems  to  mean  "embrace"  by  allusion  to  the  old  rites  of 
adoption:  see  Kern,  "L.  Sal.,"  ed.  Hessels.  Other  texts:  "Cap.  extrav.  L. 
Sal.,"  8;  Capitulary  of  819,  10;  "Rib.,"  48,  49;  "Form.  Merkel,"  16,  24,  25; 
Lindebr.,  13;  Marculfe,  I,  12;  "App.  Marc,"  47;  "Form,  imp.,"  38;  Du  Cange, 
see  "Affatomare." 

*  According  to  an  interpretation  which  would  seem  to  be  fairly  reasonable, 
but  which  is  hard  to  reconcile  with  the  text,  the  third  party  is  eliminated; 
the  entire  transaction  takes  place  between  the  donor  and  the  donee;  the  latter 
receives  the  "festuca"  and  then  installs  himself  in  the  house  of  the  donor  and 
finally  returns  to  him  with  the  "festuca"  the  right  of  enjoyment  of  his  posses- 
sion: Glasson,  III,  37. 

^  It  has  been  pointed  out  that  there  was  one  thing  lacking  in  the  alienation 
for  the  benefit  of  the  person  interposed:  the  surrender  by  him.  This  must  have 
been  an  intentional  hiatus;  in  not  relinquishing  his  possessions  the  donor  re- 
served to  himself  the  power  of  keeping  them:  R.  Caillemer,  p.  258.  Post, 
"Donationes  post  obitum  "  "Testamentary  Execution."  But  neither  is  the 
surrender  of  the  property  by  the  person  interposed  mentioned.  And,  further- 
more, could  not  the  heirs  of  the  donor  make  use  of  the  lack  of  this  surrender 
in  order  to  get  the  property  away  from  the  beneficiary? 

686 


Topic  4]  TESTAAIENTARY   PROVISIONS  [§  488 

the  property  which  has  been  transferred  to  him.^  —  3d.  Within 
a  year,  in  the  presence  of  the  king  or  at  the  "mallus  legitimus," 
by  means  of  the  throwing  of  the  "festuca,"  he  gives  the  heir  who 
has  been  appointed  the  inheritance  of  which  he  has  become  the 
owner. 

The  most  striking  thing  about  this  description  is  that"  the 
ceremony  of  appointing  an  heir  ("  aff atomic ")  consists  in  a  giv- 
ing by  a  person  who  is  interposed,  and  that  it  takes  place  in  the 
"mallus."  Whether  one  carry  it  out  in  the  "malkis"  or  in  the 
presence  of  the  king  may  depend  as  to  whether  one's  object  is 
pubUcity  or  one  needs  the  approval  of  public  authority  in  order  to 
validate  the  act;  it  is  probable  that  both  the  "mallus"  and  the 
king  originally  had  an  active  part,^  but  the  silence  of  the  law  leads 
one  to  suppose  that  their  part  had  become  passive.  It  is  more 
difficult  to  account  for  the  intervention  of  a  third  party .^  It  would 
be  very  easy  to  understand  if,  as  has  been  asserted,^  the  third 
party  had  only  to  transmit  the  property  with  which  he  had  been 
invested,  after  the  death  of  the  donor;  in  this  we  could  see  a 
proceeding  designed:  1st,  to  avoid  the  rule  which  forbids  gifts 
made  to  take  place  after  death,  because  here  everything  took 
place  between  the  living;  2d,  and  at  the  same  time,  in  order  to 
allow  the  donor  to  keep  until  his  death  the  enjoyment  of  his  pos- 
sessions, because  the  third  party  who  receives  them  is  an  accom- 
modating friend,  who  has  no  reason  to  keep  them  himself  when  he 
promises  to  allow  the  donor  to  have  them.  Unfortunately,  this 
plausible  opinion  is  condemned  by  the  text  of  the  Salic  Law;  it  is 
not  said  in  so  many  words  that  restitution  must  take  place  within 
a  year  of  the  death  of  the  donor,  but  it  is  said  that  it  must  take 
place  within  a  year,  which  can  only  be  understood  to  mean  the 
year  which  follows  the  fact  of  which  one  is  speaking,  —  that  is  to 
say,  the  transfer  of  the  property  to  the  person  who  is  interposed. 

As  for  our  view,  we  would  propose  by  way  of  conjecture  the  fol- 
lowing explanation :  °  The  ceremony  of  appointing  an  heir  would 

^  "Sessio,"  of  an  indeterminate  length  of  time;  consequently,  "sessio  trid- 
uana"  (three  days  and  three  nights) :  Geffcken,  182  (bibl.)- 

2  Lambert,  p.  30  (bibl.).  Will  "calatis  comitiis,"  cf.  Gerard,  "Man.  de  Dr. 
Rom.,"  p.  789,  3d  ed.  At  Unterwalden  ratification  of  acts  of  last  will  by  the 
public  authorities:  Lardy,  op.  cit.,  p.  263;  Huber,  IV,  609;  Statute  of  Ivrce 
(fourteenth  century)  in  "L.  Munic,"  I,  1134.  Cf.  rights  of  the  "vicmi"  and 
of  the  king. 

3  Cf.  at  Rome  "  familiae  emtor,"  a  trust. 

*  Heusler,  op.  cit. 

*  Was  not  the  interposition  of  third  parties  intended  to  evade  the  law  and 
to  allow  one  to  make  a  gift  for  the  benefit  of  persons  under  a  disability?  — 

687 


§  488]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

take  place  in  the  majority  of  instances,  like  the  Lombard  "thinx," 
in  the  case  of  the  old  man  without  children  who  was  anxious  to 
have  some  one  who  could  administer  his  interests  after  he  was 
gone,  who  could  give  him  the  care  which  his  age  demanded,  and 
who  could  take  the  place  of  a  son  to  him.  He  could  not  attain 
this  object  if  he  did  not  transfer  his  inheritance  to  this  person 
during  his  lifetime,  for,  as  representation  was  not  admitted,  the 
heir  appointed  could  not  perform  a  single  act  affecting  the  prop- 
erty of  the  donor.  But  how  was  he  to  carry  out  this  transfer, 
which  was  indispensable  to  him?  (a)  The  beneficiary  may  be  ab- 
sent at  the  time  when  the  donor  makes  up  his  mind  to  it.  In  such 
a  case  as  this,  direct  transfer  is  not  possible,  and  yet  at  the  same 
time  the  act  will  not  admit  of  being  put  off,  because  the  donor  is 
exposed  to  the  danger  of  death  or  feels  that  his  end  is  drawing 
near.  The  interposing  of  another  person  is  here  found  to  be  neces- 
sary. But  this  case  does  not  seem  to  us  to  have  been  the  most 
frequent  one.  (6)  Ordinarily,  the  beneficiary  was  present,  or,  if 
he  was  away,  the  act  could  be  postponed  until  his  return.  In  this 
case  the  presence  of  the  intermediary  was  justified  by  three  mo- 
tives: 1st.  His  intervention  served  to  notify  third  parties  that  the 
donor  gave  up  possession  of  his  property;  if  the  latter  had  been 
satisfied  to  deal  directly  with  the  beneficiary,  if  he  had  called  him 
to  him  in  order  that  they  should  live  together,  the  situation  of  af- 
fairs would  not  have  been  obvious;  the  installation  of  a  third  party 

For  Schroeder,  p.  344,  the  presence  of  an  intermediary  in  the  Salic  Law  could 
be  accounted  for  in  the  same  way  as  that  of  the  "gisel"  in  the  Lombard 
"thinx";  but  the  latter  is  hard  enough  to  understand,  for  adoption  by  handing 
over  of  weapons  takes  place  ordinarily  without  any  intermediary  (c/.,  however, 
Girard,  "Man.  de  Dr.  Rom.,"  pp.  115,  173;  enfranchisement  "per  quartam 
manum"  among  the  Lombards).  The  Salic  ceremony  of  appointing  an  heir 
has  rather  a  patrimonial  character,  and  the  third  party  interposed  takes  pos- 
session of  the  property  of  the  donor;  perhaps  one  might  say  that  the  "gisel "  also 
acquires  from  the  natural  father  the  power  over  the  person  of  the  adopted  son, 
and  that  he  transmits  it  to  the  adopting  father.  —  According  to  R.  Schmidt, 
p.  73,  the  taking  possession  carried  out  by  an  intermediary  would  be  a  legal 
demand  addressed  to  third  parties  who  have  rights,  to  assert  them  over 
the  possessions  of  the  donor  (that  is  to  say,  to  the  relatives  of  the  latter); 
they  should  in  some  way  be  summoned  to  come  before  the  "mallus"  in  order 
to  raise  their  claims  there,  under  penalty  of  being  barred.  But  we  do  not  see 
why  the  presence  of  an  intermediary  should  be  necessary  in  order  to  attain 
this  result.  It  is  very  likely  that  some  connection  exists  between  the  period  of 
twelve  months  allowed  for  restitution  of  the  property  and  the  old  one-year 
tenure.  "Ante  XII  menses"  can  scarcely  mean  at  the  end  of  the  year,  and 
yet  this  translation  has  been  offered  because  the  expiration  of  this  period  ex- 
tinguishes any  possible  claims  which  the  relatives  or  the  true  owTier  may  have. 
Perhaps,  on  the  other  hand,  what  they  meant  to  say  was  that  the  intermediary 
could  not  keep  the  property  during  a  whole  year,  because,  if  he  did  so,  he  would 
have  acquired  the  indefeasible  ownership  of  it. 

688 


Topic  4]  TESTAMENTARY   PROVISIONS  [§  489 

in  the  house  of  the  donor  gave  evidence  of  the  fact  that  the  latter 
had  deprived  himself  of  possession.  2d.  The  intermediary  ought  to 
take  an  interest  in  the  carrying  out  of  the  gift,  and  was  morally 
responsible  for  it.  3d.  The  donor  deprived  himself  of  the  right 
of  revoking  the  act  and  carried  it  out  in  a  public  manner  and  by 
means  of  an  intermediary. —  Whatever  the  theory  may  be,  from  the 
time  of  the  transfer  which  was  executed  for  his  benefit,  the  bene- 
ficiary found  himself  with  respect  to  the  donor  in  the  same  posi- 
tion as  a  son;  he  was  appointed  heir  ("heredem  appellare").^ 
Everything  leads  one  to  believe  that  the  title  which  was  thus  con- 
ferred was  irrevocable  (excepting  in  case  of  expulsion  from  the 
family,  just  as  in  the  case  of  a  lawful  son).^  The  Salic  ceremony  of 
appointing  an  heir  seems  to  have  soon  disappeared  from  practice, 
for  the  Frankish  statutes  do  not  mention  these  formalities;  it 
degenerated  into  a  direct  transfer,  that  is  to  say,  into  a  mere  de- 
livery,^ and  became  confused  with  gifts  "causa  mortis"  or  cove- 
nants pertaining  to  a  succession,  which  we  are  about  to  deal  with.^ 
Perhaps,  however,  the  intermediary  in  this  ceremony  of  appointing 
an  heir  is  to  be  once  more  found  in  the  testamentary  executor  of 
early  times,  or,  at  least,  the  precedent  of  the  Frankish  law  has 
contributed  towards  having  testamentary  execution  accepted  in 
practice. 

§  489.  Covenants  pertaining  to  Succession.  —  In  the  guise  of 
a  will,  the  law  of  the  Frankish  period  makes  use  especially  of  con- 
tracts, or,  to  put  it  better,  of  conveyances  "inter  vivos,"  which 
confer  "hie  et  nunc"  rights  which  are  irrevocable,  but  whose  final 
carrying  out  is  postponed  until  the  death  of  the  donor;  such  are 
recalls  to  succession,^  appointments  by  contract,  mutual  gifts 
between  spouses,^  "post  obitum"  gifts,  with  the  reservation  of 
the  usufruct  or  tenure  at  will.    The  first  of  these  acts  presents  a 

1  "Rib.,"  48,  49;  "Cap.  1.  Rib.  add.,"  803,  8;  "Roth.,"  174. 

2  How  was  the  intermediary  to  be  compelled  to  carry  out  what  he  had  to  do? 

3  "Rib.,"  48:  He  who  has  neither  sons  nor  daughters  may  give  all  his"  facul- 
tas"  in  the  presence  of  the  king  either  to  his  spouse  or  to  a  near  relative  or 
to  a  stranger  under  the  form  of  an  adoption  by  right  of  heir  ("adojjtare  in 
hereditate")  or  "adfatimus"  in  writing  ("scripturarum  series")  or  by  delivery 
before  witnesses.  "Cap.  leg.  Sal.  add.,"  819,  10:  "de  afTatomie  dixerunt 
quod  traditio  fuisset." 

^  "Rib.,"  49:  "adfatimus"  between  spouses;  the  survivor  can  only  make  a 
disposal  for  religious  purposes  or  because  of  pressing  necessity;  after  his  death 
the  possessions  wliich  have  been  given  to  him  retm-n  to  the  lawful  heirs.  CJ. 
"Gifts  'inter  vivos,'"  "Dower." 

*  Roziere,  "Form.,"  nos.  130  et  seq.:  "hereditorise":  Auffroy,  p.  215. 

8  Demuth,  " Wechselseitig.  Verfug.  von  Todesw./'  1901  ("Unters."  by 
Gierke). 

689 


§  489]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

very  great  similarity  to  the  early  "adoptio  in  heredum."  ^  The 
others  are  more  like  gifts  "inter  vivos"  of  some  particular  object, 
although  they  more  often  than  not  affect  a  number  of  possessions. 
Whether  they  were  gifts  "post  obitum"  ^  or  gifts  with  the  reserve 
of  the  usufruct,^  there  were  always  deliveries;  and,  as  they  were 
ordinarily  intended  for  a  church  or  a  monastery,  the  donor  pro- 
ceeded by  means  of  the  "traditio  cartse,"  —  for  example,  by  plac- 
ing the  deed  of  gift  upon  the  altar  or  the  shrine  of  a  saint.^ 
The  beneficiary  acquired  the  property  of  the  donor,  but  could 
not  exercise  his  rights  until  the  death  of  the  latter;  who  thus 
continued  to  retain  it  and  to  enjoy  it.  Whether  the  gift 
were  made  "post  obitum"  or  with  the  reservation  of  the  usu- 
fruct, the  result  was  the  same;  the  donor  retained  the  life  owner- 
ship of  the  property  transferred,^  the  donee  acquired  a  future 
ownership,  a  right  to  future  possession,  which  was  absolute  and 
which  could  not  be  attacked.^  In  order  better  to  define  the  rights 
of  the  donee  a  rent  was  often  paid  to  him  by  the  donor.  ^  Here  we 
have  a  remarkable  example  of  that  limited  ownership  in  point  of 

1  For  example,  the  daughter  called  back  to  a  succession  acquires  the  same 
rights  as  a  son. 

2  Hubner,  p.  11  (sources)  and  passim;  Roziere,  "Form.,"  212  et  seq.;  "Cart. 
de  Redon,"  nos.  137,  140,  149,  etc.;  see  D.  Vaissette,  passim. 

3  "Possidere  usufructuario  ordine,  sub  usu  beneficio,"  etc.:  Marculfe,  2,  3, 
5.  Examples  in  Hubner,  p.  76  et  seq.  "Tenure  at  will,"  "benefice":  Roziere, 
nos.  319  et  seq.  Cf.  Bondroit,  "Les  Precarise  verbo  Regis,"  1900.  The  reser- 
vation of  the  usufruct  may  be  made  for  the  benefit  of  the  donor,  of  his  widow, 
or  of  his  cliildren. 

*  Delivery  "per  cartam"  seems  to  be  sufficient  of  itself  without  any  gi\nng 
up  or  putting  in  possession.  The  formula?  contain  the  word  "trado"  without 
mentioning  the  "se  exitum  dicere":  "Alam.,"  1;  "Bai.,"  Caillemer,  313. 

^  Hubner,  p.  149,  systematically  contrasts  these  two  sorts  of  deeds,  but  the 
documents  do  not  make  any  very  great  distinction  between  them,  and  their 
practical  effect  is  the  same.  The  donor  who  has  possession  of  the  property 
which  has  been  given  him  can  abuse  his  position  and  transmit  it  to  third 
parties;  but  in  this  case  the  donees  in  the  same  way  as  the  relatives  have  a 
period  of  a  year  and  a  day  within  which  to  make  complaint.  In  case  the  donee 
dies  before  the  donor  his  heirs  only  profit  by  the  gift  as  an  exceptional  thing: 
post,  "Gifts  'inter  vivos'";  "Ass.  de  J6rus.,"  "C.  des  B.,"  116;  Heusler,  II, 
635,  n.  9;  R.  Caillemer,  p.  274. 

*  The  donor  could  reserve  the  right  of  revoking  his  gift,  not  at  his  own 
pleasure,  but  if  some  particular  event  took  place,  —  if  he  should  survive 
such  and  such  a  happening,  if  he  should  have  a  son.  Heusler,  has  maintained 
that  even  in  the  absence  of  such  reservations  as  these  the  donor  was  not 
bound  (cf.  the  gift  "mortis  causa"  at  Rome),  "Gewere,"  p.  472;  but  in  hia 
"Inst.,"  II,  121,  he  seems  to  give  up  this  idea  and  to  consider  the  right  of  the 
donee  as  irrevocable.  To  the  same  effect  is  Hubner,  p.  47.  The  delivery  "per 
cartam"  having  taken  place  in  due  form,  it  is  clear  that  the  donor  has  abso- 
lutely deprived  himself  of  the  property.  As  to  confirmations  ("renovationes," 
"iterationes")  cf.  ibid.,  p.  57;  Brunner,  "Urk.,"  p.  266.  On  the  Capitularies 
of  803,  6,  and  818,  819,  see  Brunner,  "Urk.,"  278;  Hubner,  63;  R.  Calliemer, 
371. 

^  Hubner,  p.  116. 

690 


Topic  4]  TESTAMENTARY   PROVISIONS  [§  491 

time  which  the  old  law  erected  in  many  cases,  for  example,  for 
the  benefit  of  the  mortgagor,  the  guardian,  the  widow  with  a 
jointure,  the  beneficiary,  and  still  others.^ 

§  490.  Gifts  "  pro  anima  "  and  Share  of  the  Dead.^  —  In  pagan 
Germany  there  seems  to  have  existed  the  custom  of  dividing  the 
movables  of  the  deceased  into  three  parts,  one-third  for  the  widow, 
one-third  for  the  children,  and  one-third  for  the  dead.  The  ob- 
jects which  went  to  make  up  this  last  third  were  burned  or  en- 
tombed with  the  corpse,  so  as  to  be  of  use  to  him  in  the  life  beyond 
the  grave.  After  the  conversion  to  Christianity  the  division  into 
thirds  persisted  for  a  long  time  in  many  places,  but  the  disposal 
of  the  share  of  the  dead  changed;  it  was  employed  in  pious  works, 
"pro  remedio  animse";  this  was  the  share  of  the  Church.^  It  was 
conferred  upon  the  Church  either  by  means  of  gifts  in  the  nature 
of  those  which  we  have  just  been  discussing,  or  by  means  of  uni- 
lateral declarations  made  by  a  sick  man  upon  his  deathbed  when 
it  was  impossible  for  him  to  carry  out  the  gifts  in  fact.'*  But  in 
the  tenth  or  the  eleventh  century  these  gifts  are  only  efficacious 
when  testamentary  executors  are  interposed.  It  is  under  this  form 
of  alms,  of  the  pious  legacy,  that  the  will  reappears  in  the  Christian 
practice,  as  a  completion  of  the  confession  "in  extremis." 

§  491.  Testamentary  Executors,  who  were  unknown  in  the 
Roman  legislation,  but  not  in  the  Byzantine  law,^  make  their  ap- 

1  As  to  this  conception  of  a  limited  ownership,  of  an  ownership  for  Hfe 
distinct  from  the  Roman  usufruct,  c/.  Heusler,  II,  13;  Huber,  "Gewere,"  54; 
Champeaux,  "Vestitura,"  146;  R.  Caillemer,  338. 

2  Brunner,  "Z.  S.  S.,"  1898,  "G.  A.,"  107  ("Todtentheil");  "Alcad.  Berlin," 
1849,  191.    Guardians  for  the  dead,  R.  Caillemer,  360. 

'  "Novella"  of  Leo;  Zacharie  de  Lingenthal,  "Gesch.  d.  Griech.  Rom.  R.," 
p.  116.  Sicilian  law:  Brandileone,  "Dir.  Rom.,  n.  Leggi  Normanne,"  1884, 
p.  136,  and  Italian  Statutes;  Tamassia,  "Arch.  Giur.,"  1885,  p.  5,  n.  2;  "Ass. 
d'Antioche,"  ch.  I,  p.  49.  Anglo-Norman  law:  Commentary  on  the  "Summa," 
c.  31,  fo.  37  6,  ed.  of  the  "Gr.  Gout,  de  Norm.,"  of  1523  (cited  by  Brunner); 
"Gout,  de  Norm.,"  1583,  392,  418;  "T.  A.  C.,  Norm.,"  5, 4,  5;  "T.  A.  C.,  Bret.," 
207;  Blackstone,  II,  33.  Same  custom  among  the  Scandinavians  and  the 
Russians. 

^  "Seelgerate"  ("anima;  consulitur"),  "Geschiifte,"  "Gemiichde" :  Aw^roy, 
350;  Heusler,  II,  642;  Stohbe,  V,  205;  Pollock  and  Maitland,  II,  316.  Auffroij, 
p.  406,  cf.  350,  603,  shows  how  difficult  it  was  to  realize  these  gifts  "in  extremis," 
as  the  transfer  of  ownership  could  only  take  place  bj^  means  of  the  wishes  of 
the  deceased;  his  heirs  were  the  ones  that  had  to  carry  it  out.  Penal  clauses, 
canonical  penalties  against  them.  Cf.  Zacharie  de  Lingenthal,  p.  180.  On  the 
other  hand,  deathbed  gifts  are  looked  upon  with  suspicion.  {Glanville,  VII, 
1,  4;  they  are  only  void  if  they  affect  lands):  "Sachsensp.,"  I,  52,  2.  Cf. 
"Liut.,"  6;  Heusler,  II,  198. 

s  Zacharie  de  Lingenthal,  "Gesch.  d.  Griech.  Rom.  R.,"  p.  138  (2d  ed.) 
"Cod.  .lust.,"  "de  episc,"  28,  48.  "  Novella,"  131,  11.  Cf.  Dig.,  17  and  88, 
"de  leg.,"  II;  "ad  Sc.  Treb.,"  78,  1;  "  Mand.,"  12  and  13.  "Novella"  of 
Leo  the  Philosopher  by  Manuel  Commenus.    It  is  found  again  in  the  Mahome- 

691 


§  491]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

pearance  in  the  Frankish  deeds  of  the  eighth  century;  ^  and  after 
this  period  they  figure  in  almost  every  wilL"  They  are  still  men- 
tioned in  the  Civil  Code,  Art.  1025.  Roman  ^  or  Germanic  "*  prece- 
dents for  this  institution  have  been  sought  for;  but  if  the  latter 
especially  made  its  formation  more  easy,  it  is  no  less  true  that 
it  owed  all  its  importance  to  religious  ideas,^  and  that  it  was 
first  regulated  by  the  decisions  of  the  ecclesiastical  courts  and 
by  the  canon  law.  It  served  to  realize  gifts  "pro  anima."  The 
Roman  will  had  disappeared,  and  with  it  the  heir  who  was  ap- 
pointed and  charged  with  carrying  out  the  last  wishes  of  the  de- 
ceased. As  the  heirs  at  law  could  not  be  relied  on,  and  as  means 
of  compulsion  against  them  were  lacking,  —  for  example,  when 
the  donor  had  contented  himself  with  a  unilateral  declaration  of 
will,°  —  recourse  was  had  to  the  interposing  of  third  persons. 

tan  law:  Hedmja  (twelfth  century),  52,  7;  R.  Caillemer,  680;  Lambert,   15 

(bibl.). 

1  Names  for  Executors-  —  "  Eleemosjmarius,"  a  man  of  charity,  a  monk 
distributing  alms  to  the  poor,  a  testamentary  executor  charged  with  creating 
pious  foundations  (ninth  century),  "aumosnier"  (thirteenth,  fourteenth  cen- 
turies), "Wadiator,"  "Gadiator"  (tehth,  eleventh  centuries),  allusion  to  their 
appointment  by  the  "wadium,"  "gagiers"  (tliirteenth  century).  "Fide- 
jussor," "tutor"  (tenth,  eleventh  centuries);  "spondarius"  (testamentary 
guardian  or  executor),  "Toulouse,"  6,  82,  83.  "Vormund,"  "momper," 
"advocatus";  "salmann,"  " manufidelis "  ("Treuhander"),  Germany,  "Feu- 
main,"  Flanders,  "Erogator,"  distributor  of  property,  "dispensator"  (eighth 
century),  "distributor,"  "fideicommissarius"  (tenth  century)  and  (abbrevia- 
tion) " commissarius."  "Executor"  (twelfth  century).  In  Spain,  "cabe- 
Qalero"  ("cabega,"  meaning  function).  Thevenin,  "Texts,"  see  Table;  Du 
Cange,  ibid.  —  Cf.  the  "mund"  of  the  Anglo-Saxon  will  or  "cwide";  Pollock 
and  Maitland.  Inc.  cit. 

2  See,  for  example,  Tuetey,  op.  cit.  —  Texts:  G.  Durand,  "Spec,"  II,  2,  13; 
Beaumanoir,  12,  26  et  seq.;  P.  de  Fontaines,  488;  "Ohm,"  Table,  see  "Exe- 
cut.,"  "Eleemos.";  "Summa  Norm.,"  59,  12  and  Table,  see  "Eleemos."; 
Glanville,  VII,  6;  Boutaric,  I,  17  and  20;  Masuer,  30,  39  (bibl.);  Loyscl,  314; 
"Siete  Part.,"  10,  10;  " Baumgartenberg.  Formelbuch"  (tliirteenth  century), 
in  "Pontes  Rer.  Austr.  Diplom.,"  XXV,  1866. 

3  "Deutsch  Vorliiufer  d.  heut.  TestamentsvoUstrecker  in  Rom.  R.,"  1899; 
Collinet,  "N.  R.  H.,"  1894,  573. 

*  Cf.  the  intermediary  in  the  appointment  of  an  heir,  ante.  See  in  Lambert, 
75,  a  comparison  with  the  surrender  to  use  of  will,  of  copyholds  in  English 
law. 

^  So  absolute  seemed  the  necessity  for  testamentary  execution  from  the 
reUgious  point  of  view  in  the  Middle  Ages  that,  if  there  were  no  testamentary 
executors  (because  none  had  been  appointed:  Desmares,  68,  328;  "Siete  Part.," 
6,  10,  5;  death  or  refusal:  "Capit.  Ital.,"  790,  I,  93;  Beaumanoir,  12,  1,  27,  60, 
discharged,  etc.)  the  bishop  became  a  legal  executor,  and,  if  he  himself  could 
not  fulfill  this  office,  he  designated  an  appointed  executor  in  place  of  him- 
self {cf.  legal  guardianship  or  guardianship  by  appointment).  In  the  time 
of  Beaumanoir,  12,  27,  the  civil  authorities  were  also  competent:  "Ass.  de 
J^r.,"  "C.  des  B.,"  185.  In  England  the  ecclesiastical  courts  designated  an 
administrator  "cum  testamento  annexe":  Blackstone,  II,  32;  "Summa  Norm.," 
19,6. 

«  Cf.  the  "  Salmann."    Other  cases  in  which  the  naming  of  an  executor  is  in- 

692 


Topic  4]  TESTAJVIENTARY  PRO\^SIONS  [§491 

During  his  lifetime  the  donor  granted  his  possessions  as  a  matter 
of  form  to  third  parties  (almoners,  executors,  cf.  "Salmannen"); 
he  kept  them  in  fact,  —  that  is,  kept  the  enjoyment  of  them;  but 
these  third  parties  became  the  owners  and  were  charged  with 
transferring  them  after  his  death  ^  to  a  church  or  a  monastery,  to 
do  acts  of  charity  in  order  to  redeem  his  sins,  and  to  assure  a  suit- 
able burial  for  his  body  and  eternal  salvation  for  his  soul.  The 
purely  religious  part  which  was  originally  played  by  executors 
was  enlarged  when  the  will  appeared  in  practice  and  when  the 
people  no  longer  limited  themselves  to  dispositions  "pro  anima";  ^ 
they  paid  the  debts,  made  good  the  damages  caused  by  the  de- 
ceased ("male  ablata,"  torts  done),  indemnified  those  who  made 
complaints  ("clamores")  against  him,^  paid  off  the  legacies  and 
upheld  the  vahdity  of  the  will,^  and,  not  satisfied  with  being  the 
liquidators  '"  and,  as  it  were,  the  guardians  of  the  succession,  they 
were  seen  sometimes  to  become  the  testamentary  guardians  of  the 
minor  children  of  the  deceased.  Thus  the  institution  took  on  a 
secular  aspect.  It  is  easy  to  understand  that  the  seigniorial  judges 
should  have  disputed  the  jurisdiction  of  testamentary  execution 
with  the  ecclesiastical  judges,  until  the  time  when  the  seculariza- 
tion having  taken  place,  ecclesiastical  courts  lost  all  jurisdiction 
in  this  matter  (sixteenth  century).^ 

However,  when  once  people  had  become  accustomed  to  having 
the  entire  inheritance  pass  to  legatees  by  the  intervention  of 
executors,  the  appointment  of  an  heir  in  the  Roman  sense  became 

dispensable:  (a)  taken  unawares  by  death,  one  only  has  time  to  choose  some 
friend  to  carry  out  the  transfer  "super  altere";  (6)  one  wishes  to  have  the  gift 
made  on  the  date  of  the  funeral  (pagan  idea).  We  also  find  gifts  "causa 
mortis"  made  by  means  of  a  third  person  being  interposed. 

1  Sometimes  executors  "inter  vivos." 

2  One  can  appoint  a  third  party  to  make  one's  will  ("will  by  agent"),  but 
the  canon  law  decided  that  this  third  party  only  had  one  right,  and  that  was 
to  confer  the  property  of  the  succession  upon  the  poor  or  to  repartition  this 
property  "causa;  pia;":  Dig.  X,  3,  26,  13;  5,  40,  18;  Fertile,  IV,  44;  "Fuero 
Real,"  3,  5,  6;  "L.  deToro,"  32;  F.  de  Vizcaya,  21,  3.  England:  John  Lackland, 
1216;  "Fleta,"  II,  62,  13;  Britton,  28.  France:  "Bullet,  hist,  et  phil.,"  1898, 
p.  376  (in  1286);  Desmares,  49;  "T.  A.  C,  Bret.,"  326;  Masuer,  33,  38;  Furgole, 
"Test.,"  10,  4,  51;  Fertile,  IV,  45;  Fasquier,  "Doc.  rel.  k  Boussagues,"  p.  29. 

*  R.  Caillemer,  p.  74. 

*  In  England  the  first  duty  of  executors  after  having  had  the  funeral  of  the 
testator  attended  to  is  to  have  his  will  proved  by  the  judge  ("probatio"; 
from  this  comes  the  Court  of  Probate,  1857,  merged  in  1875  into  a  single 
Supreme  Court).  On  the  (continent  the  proof  and  the  formalities  of  publishing 
the  will  are  especially  incumbent  upon  the  notary  and  the  heir. 

*  Beaumnnoir,  12,  31,  58:  procedure  of  hquidation;  "Olim,"  II,  255,  etc. 
Cf.  Blackstone,  II,  32. 

6  Loysel,  316;  Fasquier,  472;  Fithou,  "Lib.  de  I'Egl.  Gall.,"  24,  25;  Council 
of  Trent,  s.  22,  c.  7. 

693 


§491]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

customary.  From  this  time  dates  the  decHne  of  testamentary- 
execution.  Creditors  and  legatees  were  sufSciently  protected 
against  the  ill-will  of  heirs,  and,  as  the  property  passed  directly 
to  the  latter,  it  was  they,  so  it  seemed,  who  were  bound  to  pay 
the  debts  and  legacies.^  Executorship  fell  into  disuse  in  countries 
of  written  law.  It  was  kept  up  in  the  countries  of  Customs,  where 
the  appointment  of  an  heir  had  difficulty  in  making  its  way,  and 
where  the  heirs  of  the  blood  sought  to  avoid  the  clauses  of  the 
will  which  took  away  their  estate;  but  the  role  of  executors  was 
limited  to  the  payment  of  legacies.  They  have  not  disappeared  in 
the  existing  law  (Law  of  the  7th  Nivose,  year  V,  Civil  Code, 
1025)  .2 

The  rights  and  the  powers  of  the  executor  have  varied  accord- 
ing to  the  part  played  by  him.^  The  earliest  executor  is  a  sort  of 
heir;  he  becomes  owner  ^  of  the  properties  of  the  deceased  through 
delivery.^  At  the  death  the  possession  of  them  comes  to  him  of 
absolute  right;  he  has  the  seisin,  collects  and  profits  by  the  issue, 
pays  the  legacies  and  the  debts  out  of  the  movables,  and  transmits 

1  "Gr.  Cout.,"  p.  369  (they  carry  out  the  will  provided  surety  has  been 
furnished).  Bracton,  fo.,  407  6;  actions  on  behalf  of  and  against  the  heirs, 
and  not  against  the  executors.  Beautnanoir,  12,  2:  the  heirs  dispute  the  seisin 
with  them. 

2  Cf.  legatees  charged  with  transmitting  the  property  of  the  deceased  to 
charitable  estabUshments  and  with  carrying  out  certain  works,  etc.  Auguste 
Comte  charged  thirteen  executors  to  watch  over  his  spiritual  work;  and  one 
of  them,  P.  Lefitte,  carried  it  on. 

2  Executors  have  often  been  considered  as  agents  acting  in  the  name  of  the 
deceased;  but  the  truth  of  the  matter  is  that  they  act  in  their  own  names  and 
are  invested  with  powers  of  their  own  {cf. ' '  Guardians  " ) .  The  old  Germanic  law 
did  not  admit  of  representation:  ante;  R.  Caillemer,  131.  After  the  revival  of 
the  will,  as  soon  as  alienation  by  agents  is  allowed,  there  is  a  tendency  among 
the  Romanists  and  the  canonists  to  make  of  the  executor  an  agent  "post 
mortem,"  without  this  tendency  being  fully  reahzed;  thus  the  executor  could 
keep  the  seisin  of  the  movables:  Beautnanoir,  12,  26;  he  represented  the  person 
of  the  deceased:  Dig.  X,  3,  26,  19;  Auffroy,  367. 

*  The  nature  of  the  right  of  executors  is  all  the  more  difficult  to  define 
because  their  powers  vary  greatly;  sometimes  they  are  charged  with  the  dis- 
tribution of  the  property  of  the  testator  as  they  may  see  fit,  sometimes  the 
deed  naming  them  Umits  their  rights,  sometimes  they  only  receive  special 
pieces  of  property,  and  sometimes  they  are  executors  of  the  residuary  estate. 

5  Must  we  say,  as  we  did  with  regard  to  the  "Salmann,"  that  the  donor 
keeps  certain  rights  over  the  property  when  he  makes  a  deUvery  without  any 
giving  up  of  possession  ("resignatio")?  Heusler,  I,  218;  R.  Caillemer,_  258. 
Or  must  we  then  reject  this  idea,  although  it  conforms  with  the  majority  of 
the  texts  ("Cart.  Sen.,"  VII,  34,  30.  Contra:  will  of  Acfred,  928,  in  Baluze, 
"Capit.,"  II,  1532),  because  these  rights  would  then  pass  to  the  heirs,  and 
because  the  "traditio  cartse"  is  complete  of  itself  (without  even  the  "se 
exitum  dicere")?  Cf.  appointment  of  an  heir  and  gift  "post  obitum."  Can 
the  "lex  traditionis"  be  opposed  to  third  parties?  "Gr.  Cout.,"  p.  233  (the 
testator  gives  up  his  possession  by  the  delivery  of  the  will).  Cf.  Beautemps- 
Beaupre,  "Cout.  d'Anjou,"  IV,  221;  Caillemer,  324  et  seq.  —  From  the  delivery 
comes  the  word  "Salmann." 

694 


Topic  4]  TESTAMENTARY   PROVISIONS  [§491 

the  ownership  of  the  lands  to  the  legatees.^  With  rights  as  exten- 
sive as  these,  abuses  were  to  be  feared.  How  were  they  avoided? 
The  deceased  chose  the  executor  among  those  of  his  relatives 
or  his  friends  of  whom  he  could  be  sure.  In  order  to  avert  the 
chances  of  death  and  to  establish  a  control,  he  ordinarily  appointed 
several  executors.^  The  obligation  of  conscience  to  which  they 
were  bound  was  undoubtedly  fortified  by  an  obligation  which  was 
valid  in  the  eyes  of  the  civil  law  ("fides  facta").  Finally,  the 
religious  and  civil  authorities  did  not  remain  indifferent  to  their 
administration;  the  bishop  and  the  judge  watched  over  it.  Their 
powers  were  limited,  they  were  compelled  to  have  an  authorization 
for  important  acts,  and  they  had  to  furnish  the  same  guarantees 
as  guardians,^  —  an  inventory,  a  surety,  sometimes  an  oath,  and 
the  rendering  of  accounts.^  After  the  twelfth  century,  with  the 
revival  of  the  will,  they  no  longer  have  the  hereditary  possessions 
delivered  to  them,  but  they  are  appointed  by  the  will  ^  and  there 
is  a  tendency  for  them  to  become  nothing  more  than  posthumous 
agents  with  the  special  powers  which  are  derived  from  their 
former  situation.^  Their  seisin  is  restricted  to  movables;  it  only 
lasts  during  a  year  and  a  day  after  the  death;  it  carries  with  it  the 
prerogatives  relating  to  possession,  but  one  cannot  say  that  it  is, 
as  it  was  formerly,  an  expression  of  the  right  of  ownership,  for  it 
does  not  exclude  the  heir's  right  of  ownership.^ 

^  Can  the  seisin  of  the  executor  be  transmitted  to  his  heirs?  Contradictory 
texts.  Yes,  in  EngUsh  law,  no,  in  the  canon  law  and  according  to  the  Customs. 
The  agency  does  not  pass  to  the  heirs  of  the  agent :  Beaumanoir,  12,  28. 

2  Plurality  of  executors:  on  principle,  collective  action  was  required  of 
them ;  but  there  were  clauses  in  derogation  of  this  rule,  and  in  the  end  the  power 
of  each  one  of  them  to  act  alone  was  admitted:  Beaumanoir,  12,  58;  Pasquier, 
"Doc.  rel.  a  la  Seign.  de  Boussagucs,"  p.  40.    Joint  tenancy  in  English  law. 

'  The  functions  of  the  executor  are:  (1)  gratuitous,  but  it  is  customary  for 
the  testator  to  bequeath  him  something;  (2)  optional  (the  office  of  a  friend 
rather  than  a  public  function),  but  once  they  have  been  accepted,  one  can  no 
longer  give  them  up  as  an  agent  would  do:  Commentary  on  "Cod.  Just.,"  1, 
3,  28;  Bartole,  on  Dig.,  31,  1;  Beaumanoir,  12,  26,  57;  "T.  A.  C,  Bret.,"  324. 

*  Beaumanoir,  12,  29  et  seq.;  "Or.  Cout.,"  II,  40;  Destnares,  50,  71,  121; 
Loysel,  314  et  seq.  The  remainder  belongs  originally  to  the  executors,  who  were 
charged  with  distributing  it  as  they  might  wish  in  charities  {Joinville,  "Hist, 
de  8t.  Louis,"  34;  "Siete  Part.,"  6,  10,  13),  and  then  to  the  heir  {Beaumanoir, 
12,  33,  56).  In  England  the  residue  has  become  the  property  of  the  executor: 
Blackstone,  II,  32. 

5  Already  during  the  barbarian  period  in  Italy,  in  Septimania,  and  in 
Catalonia  ("Wis.,"  2,  5,  10  et  seq.;  "Novella"  of  Valentinian,  III,  4,  2)  the 
will  continues  to  exist  and  the  executors  are  named  without  delivery.  Wills 
of  clericals.  —  Cf.  Schulze,  p.  151  et  seq. 

«  Great  importance  still  in  England  and  in  Germany. 

^  Loysel,  314;  Beaumanoir,  12,  2,  14  (movables,  immovables);  "Paris," 
297;  "6rl6ans,"  290;  Dumoulin,  on  "Paris,"  95:  "non  est  verus  possessor  et 
nisi  procurator  tantum";  Pasquier,  "Inst.,"  472.  —  In  England  the  seisin  has 

695 


§  492]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

§  492,  The  Will,  properly  so  called/  a  unilateral  deed  which  is 
often  secret  and  always  revocable,  involving  the  disposal  of  pres- 
ent and  future  possessions  to  take  effect  after  death,  finally  made 
its  reappearance  about  the  twelfth  century  ^  under  the  pressure 
of  practical  needs  and  as  a  consequence  of  the  general  changes 
undergone  by  legislation  (lessening  of  the  rights  of  the  family  and 
of  those  of  the  lord).  The  revival  of  Roman  law  only  made  the 
more  easy  an  evolution  which  would  have  taken  place  independ- 
ently of  it.  From  a  religious  act,  which  it  was  at  first,  the  will,  in 
the  course  of  its  development,  became  half  secularized.  After 
having  recommended  his  soul  to  God  and  his  body  to  a  church  to 
which  he  left  by  way  of  burial  fee  some  movable  object  (for  ex- 
ample, a  horse),  provided  for  his  funeral  expenses,  made  provision 

always  been  restricted  to  the  personal  property  (excepting  since  1897),  but 
it  is  not  limited  to  a  year;  on  the  other  hand,  it  is  only  at  the  end  of  a  year  that 
one  can  exercise  measures  of  compulsion  against  the  executors.  On  the  Conti- 
nent the  length  of  time  the  seisin  lasts  is  not  more  than  a  year  from  the  thir- 
teenth century  on  {G.  Durand,  89;  c/.  his  "Const.,  Acad.  Sc.  Montp.,"  1900, 
p.  109) ;  this  was  admitted  in  the  interest  of  the  heirs  as  a  consequence  of  par- 
ticular clauses.  The  Church  accommodated  itself  to  this  result  because  it 
sought  to  insure  a  rapid  execution  of  the  will,  and  it  already  imposed  upon 
the  executors  rather  short  periods.  Cf.  Caillemer,  p.  418.  As  to  the  invest- 
ment, at  the  will  of  the  executors,  of  the  income  of  the  prebends  which  ac- 
crued within  a  year  of  the  death  of  the  titulary  ("annus  gratise"),  cf.  ibid., 
p.  412.    The  German  proverb:  "The  priest  lives  one  year  after  liis  death." 

1  A  series  of  wills  from  the  barbarian  period  on,  in  the  Cartularies  and  other 
collections.  The  authenticity  of  some  of  them  is  disputed  (for  example,  that 
of  Saint  Cesaire  d'Arles,  a  short  will  of  Saint  Remy:  "N.  Arcliiv.,"  1899; 
"Rev.  benedict.,"  id.).  Many  are  found  in  the  proofs  of  the  "Hist,  de  Langue- 
doc"  by  D.  Vaissette,  etc.  Thevenin,  "Textes,"  nos.  76,  99,  etc.;  Du  Cange,  see 
"Testamentum";  Tuetey,  "Test,  enreg.  au  Pari,  de  Paris  sous  Charles  VI," 
1880  (unpubUshed) ;  Motorc?,  "Test.des  Xlle,  XllI^,  XIV^  siecles"  ("Arch,  de 
I'Yvonne") ;  "Bull,  du  Comite  des  Trav.  hist.,"  1884,  p.  224;  "R.  h.  Dr.,"  XIV, 
529,  etc.;  "B.  Ch.,"  1,  3,  282;  Pasquier,  "Doc.  rel.  a  la  Seign.  de  Boussagues," 
1901;  Wills  of  Phihp  Augustus,  of  St.  Louis,  etc.;  Isambert,  see  Table; 
Beaumanoir,  12,  58  (model) ;  Boutaric,  p.  873,  etc.;  Auffroy,  p.  679  (and  passim); 
R.  Caillemer,  p.  687  (bibl.);  Heidhard,  "Rabelais  Legiste  et  le  Testament  de 
Cuspidius,"  1888;  Girard,  "Textes,"  p.  722  et  seq.;  Engelmann,  "Les  Test. 
Coutumiers  au  XV^  siecle,"  1903  (Thesis). 

2  St.  Paul,  "Hebr.,"  ix,  16.  On  the  revival  of  the  will  cf.  Auffroy,  pp.  423; 
R.  Caillemer,  pp.  288,  313;  "Cart,  de  Cluny,"  V,  109  (in  1100),  510;  "St.  P. 
de  Chartres,"  II,  370;  Yves  de  Ch.,  "Deer.,"  XVI,  115;  Gratian,  II,  12,  5. 
The  tendency  is  manifested  earUer  in  the  southern  territory  of  the  Visigoths; 
it  is  possible,  even,  that  there  was  no  interruption  there  in  the  use  of  the  will: 
"Wis.,"  4,  2,  4;  2,  5;  Act  of  1128,  which  reproduces  it;  D.  Vaissette,  see  no.  499; 
"L.  Burg.,"  43,  60  {cf.  "L.  Rom.  Cur.,"  26,  1:  declaration  "in  die  mortis," 
translation  in  MarcuZ/e,  II,  17;  "Carta  Sen.,"  42, 45;  "L.  Saxon.,"  62;  "Alam.," 
1;  "Bai.,"  15,  10);  "Brachyl.,"  II,  19,  32;  "Petrus,"  IV,  19  (custom).  — As 
to  the  Lombard  law,  cf.  "Liut.,"  6;  "Aist.,"  3,  and  on  these  texts  see  bibl.  in 
Caillemer,  289;  Palumbo,  301;  Schidze,  14;  Auffroy,  135,  279,  514;  Glasson,  ' 
III,  177;  Vlll,  540.  English  law:  Pollock  and  Maitland,  II,  314  et  seq.  (from 
the  Anglo-Saxon  "cwide"  to  the  will  of  modern  times).  Rymer,  "Foedera," 
I,  47  (Will  of  Henry  II,  1182);  Ruber,  IV,  608  to  667  (Switzerland);  Zacharie 
de  Ldngenthal,  "Gesch.  d.  Griech.  R.,"  p.  124  et  seq. 

696 


Topic  4]  TESTAMENTARY  PROVISIONS  [§  494 

for  the  salvation  of  his  soul  (foundation  of  masses,  anniversaries, 
charities  or  legacies),  the  testator  regulated  the  disposal  of  his 
possessions  as  a  whole  and  in  particulars.  Very  important  con- 
sequences were  the  result  of  this  change. 

§  493.  The  Same.  —  (I)  Jurisdiction.  The  lay  courts  contested 
with  the  ecclesiastical  courts  for  jurisdiction  over  wills  (thirteenth 
century)  and  finally  kept  this  jurisdiction  entirely  to  themselves 
(sixteenth  century).^ 

§  494.  The  Same.  —  (II)  Capacity  to  make  a  will  or  to  receive 
hy  will  was  regulated  in  the  same  way  as  the  capacity  to  leave  or 
take  an  intestate  succession,  except  for  a  few  pecuharities,  with 
the  object  of  better  assuring  the  freedom  of  the  testator  and  the 
prevention  of  undue  influence.  The  reversion  to  the  lord  of  pos- 
sessions granted  by  him  to  his  vassals,  copyholders,  or  serfs,  was  an 
obstacle  to  the  exercise  of  the  right  to  make  a  will,  especially  as 
far  as  these  latter  were  concerned,  who  were  only  authorized  to 
dispose  of  five  sous  for  the  salvation  of  their  soul.  The  rights  of 
succession  to  the  estate  of  deceased  aliens,  of  succession  to  the 
estate  of  an  intestate  bastard,  and  of  confiscation,  produced  re- 
sults which  were  analogous  to  those  of  the  inalienability  of  a  serf's 
property.-  Those  who  were  still  under  a  disability  (for  lack  of  an 
inheritance  or  lack  of  desire  to  make  a  will)  were  those  civilly  dead, 
monks,  sons  of  a  family  in  the  South,  minors  under  custody  or 
guardianship  in  the  North,  madmen,  and  prodigals.^  In  countries 
of  written  law  a  person  who  has  not  attained  puberty  cannot  make 
a  will;  in  the  countries  of  Customs  one  must  be  twenty  years  old 
in  order  to  make  a  will  of  one's  movables  and  acquests,  and  twenty- 

'  From  the  tenth  to  the  twelfth  century  the  ecclesiastical  judges  had  the 
exclusive  jurisdiction  in  the  matter  of  wills,  excepting,  perhaps,  in  the  south, 
where  at  a  very  early  time  in  all  cases  the  civil  tribunals  had  a  concurrent 
jurisdiction.  In  the  sixteenth  century  the  latter  courts  once  more  became  the 
only  ones  that  were  competent:  Loysel,  316;  "Comp.,"  la,  3,  22;  Dig.  X,  3, 
26;  Sextus,  III,  11;  "Cart,  de  St.-Pere  de  Chartres,"  II,  p.  313  (towards  1100, 
Bishop  as  arbitrator);  pp.  278,  306,  425  (towards  1120  he  becomes  the  Judge); 
"T.  A.  C,  Norm.,"  1,  57,  2;  "Olim,"  II,  55,  255,  335;  Beaumanoir,  11,  10; 
12,  1,  14,  27,  60;  J.  Le  Coq.,  93;  Boutaric,  II,  1;  Auffroy,  pp.  357,  385,  396,  485, 
635;  Viollet,  864. 

2  Rights  of  the  lord,  cf.  "mortuarium,"  in  English  "heriot,"  Pollock  and 
Maitlnnd,  I,  293;  Fertile,  IV,  18.  Numerous  provisions  in  municipal  charters 
granting  the  right  to  bequeath  by  will.  Aliens  may  give  "inter  vivos,"  but 
not  by  will. 

3  "Brachylogus,"  II,  20;  "Petrus,"  I,  26;  G.  Durand,  "Spec,"  II,  2,  12- 
Beaumanoir,  12,  3,  45;  "Toulouse,"  147  et  seq.;  " Montpellier,"  54  (marrica 
daughter);  "Carcass.,"  40;  Auffroy,  526.  Cf.  "Jostice,"  12,  1,  20,  25;  "Et. 
de  St.  Louis,"  I,  28;  XC,  133;  "Summa  Norm.,"  22,  9;  Loysel,  302;  "Paris," 
293  et  seq.  As  to  the  married  woman:  Viollct,  866.  Bastards:  Pasquier,  398; 
ArgoiC,  II,  12.    Cf.  Blackstoiie,  II,  32;  Stobbe,  §  303;  Fertile,  §  122. 

697 


§  494]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

fi\'.e  in  order  to  make  a  will  of  a  fifth  of  one's  personal  belongings; 
at  least,  this  is  so  in  the  later  stages  of  the  law.^  Those  who  are 
under  a  disability  to  receive  by  way  of  a  will  are,  as  a  general  thing, 
people  in  mortmain,^  spouses  from  one  another,  and  illegitimate 
children.^ 

§  495.  The  Same.  —  (III)  The  ajjpointment  of  an  heir  of  the 
Roman  law  reappeared,  (a)  Countries  of  written  law.^  It  is  there 
found  towards  the  middle  of  the  twelfth  century;  it  became  at 
once  a  general  custom.  There  are  local  Customs,  like  that  of 
Toulouse,  which  do  not  regard  it  as  necessary;  but,  at  least  in  the 
fourteenth  century,  it  becomes  a  necessary  condition  for  the 
validity  of  the  act,^  and  the  heir  who  is  appointed  has  a  right  to 
one-fourth,  by  w^ay  of  portion,  which  he  can  distribute,  or  a  por- 
tion of  one-fourth  which  he  can  keep  out  of  the  inheritance  which 
is  affected  by  a  trust.®  ih)  Countries  of  Customs.  The  appointment 
of  an  heir  was  still  unknown  in  the  time  of  Beaumanoir;  ^  it  is  not 
valid  even  as  a  legacy,  according  to  certain  of  the  Customs  of  the 
sixteenth  century;  ^  others,  for  example  that  of  Paris  (1580),  do 
not  look  upon  it  as  being  indispensable  and  give  it  at  the  most  the 
effects  of  a  "  universal  "  legacy.^ 

1  "Paris,"  293,  294,  and  Customs  that  are  silent.    Boutaric,  I,  103. 

2  Loysel,  75,  76.  Edict  of  August,  1749;  D'Aguesseau,  "CEuvres,"  XIII, 
ed.  Pard.,  Theses:  Serville,  1898;  Mourmant,  1900;  Bondroit,  "De  Capac. 
possid.  eccl.,"  1900  (Merovingian  period).  —  Ecclesiastics  may  bequeath  by 
will,  may  inherit,  and  may  receive  legacies,  but  not  monks:  Loysel,  343  et  seq. 

^  Cf.  post,  "Gifts."  Legacies  from  one  spouse  to  another:  Beaumanoir, 
12,  4,  10,  22;  "Et.  de  St.  Louis,"  I,  118.  —  Special  disabihties:  Argou,  II,  12 
(Declaration  of  1549,  etc.;  jurisprudence);  II,  15;  Civil  Code,  901  et  seq. 

*  "Petrus,"  I,  16,  18;  "Usat.  Barchin.,"  76;  "Montpellier,"  56;  "Toulouse," 
123;  "Ass.  de  Jer.,"  "C.  des  B.,"  184;  Auffroy,  p.  489.  Cf.  Palumbo,  358; 
Argou,  II,  13,  disinheriting. 

6  G.  Durand,  "Specul.,"  II,  2,  18;  Auffroy,  p.  638;  Pasquier,  "Doc.  rel.  a 
la  Seign.  de  Boussagues,"  p.  15  (in  1260);  Serres,  "Inst.,"  II,  14,  26.  The 
codicil,  differing  in  this  from  the  will,  cannot  include  the  appointment  of  an 
heir;  the  distinction  is  made  in  countries  of  written  law,  whereas  in  countries 
of  Customs  the  will  is  in  substance  and  in  its  form  merely  a  codicil:  Viollet,  900; 
Pertile,  IV,  15.  As  to  the  employment  of  the  codicil  clause,  cf.  Ferriere, 
Guyot;  Argou,  II,  17;  Auffroy,  603.    As  to  the  Roman  law,  see  Girard,  p.  850. 

6  "Petrus,"  I,  15;  "Brachylog.,"  II,  29  et  seq.;  G.  Durand,  "Specul.,"  II, 
2,  12,  33;  IV,  2,  16;  Dig.  X,  3,  26,  18.  These  shares  of  one-fourth  may,  more- 
over, be  done  away  with  by  will  or  codicil:  G.  Durand,  II,  2,  12,  47;  Serres, 
"Inst.,"  II,  22;  Argou,  II,  12  (appointment  of  the  one  of  the  children  whom 
the  surviving  spouse  shall  choose;  cf.  substitution).  Cf.  Zacharie  de  Lingenthal, 
p.  177. 

^  P.  de  Fontaines,  15,  7;  23,  16;  "Jostice,"  12,  21,  11  and  15;  Beaumanoir, 
12,  19;  "Layettes  du  Tr6s.  des  Chartes,"  III,  no.  3661  (in  1248);  R.  Cailleyner, 
p.  207. 

8  "Paris,  N.  C,"  299;  cf.  "A.  C,"  120;  Loysel,  304,  813;  Ferriere,  see  "Inst. 
d'H^r.";  Bucherellus,  "Inst.,"  p.  254;  Viollet,  899;  "Navarre,"  27,  31  (seisin). 

8  As  to  special  legacies,  cf.  Pothier,  VIII,  138.    Imphed  mortgage  of  legatees, 

698 


Topic  4]  TESTAMENTARY   PROVISIONS  [§  496 

§  496.  The  Same.  —  (IV)  Different  forms  of  wills.  (A)  The 
canon  will}  As  the  most  important  thing  of  all  was  the  salvation 
of  the  soul  of  the  testator,  the  Custom  of  the  Church  showed  it- 
self not  very  exacting  as  to  the  validity  of  this  act.  (a)  It  was 
first  of  all  satisfied  with  a  verbal  declaration  made  in  the  presence 
of  two  or  three  witnesses  (instead  of  the  seven  or  five  of  the  Roman 
law),  for,  according  to  the  Gospel,  "In  ore  duorum  vel  trium  tes- 
tium  stet  omne  verbum."  ^  (6)  The  parish  priest  of  the  locality 
more  often  took  part  in  this  because  the  will  was  a  sequel  to 
a  confession.  His  services  became  obligatory.  There  was  seen 
in  him  not  only  a  scribe  who  was  proving  by  means  of  writing 
the  last  wishes  of  the  deceased,  but  a  sort  of  public  officer  charged 
with  watching  over  the  regularity  of  the  act  and  with  making  sure 
of  its  fulfilment.^  After  the  death  the  procedure  of  "publicatio" 
or  "probatio,"  ending  in  a  report,  was  often  required  in  order 
officially  to  establish  and  put  beyond  all  discussion  the  last  wishes 
of  people  who  were  dying."*  The  canon  will,  at  least  under  its 
written  form,  was  still  upheld  by  the  Ordinance  of  1735,  Art.  25, 
in  those  localities  where  the  Customs  authorized  it.^  This  was 
a  measure  which  was  justified  by  practical  necessity,  for  many 
localities  had  no  notaries,  and  in  an  urgent  case  it  was  neces- 
sary to  make  a  will  before  the  parish  priest,  or,  otherwise,  not 
make  a  will  at  all.  Aside  from  such  cases  as  these,  it  must  be  ad- 
mitted that  so  much  simplicity  for  an  act  as  serious  as  this  was 
full  of  disadvantages,  because  it  left  the  field  clear  for  frauds 
and  abuses.     Every  effort  of  the  civil  legislation  tended  to  sur- 

L.  1,  "Cod.  Just.,"  "Comm.  de  leg.";  see  Fernere  (bibl.).  Legacy  of  something 
belonging  to  another:  Beaumanoir,  12,  46;  Argou,  II,  15.  Increase:  ibid.; 
Fleury,  "Inst.,"  I,  313  et  seq.;  Masuer,  24;  Boutaric,  I,  105. 

1  Thomas,  op.  cit.;  Viollet,  895;  Glasson,  VII,  541;  Auffroy,  441.  C/.  "L. 
Wis.,"  2,  5,  10  et  seq.;  Tardif,  "Dr.  prive  au  XIIP  siScle,"  p.  66;  Blackstone, 
II,  23,  32. 

2  "  Matthew,"  xviii,  16;  Gratian,  2,  13,  2,  4:  "Ultima,  voluntas  defuncti 
modis  omnibus  conservetur " ;  Dig.  X,  3,  26,  4,  10  (Alexander  III,  1170); 
"Toulouse,"  123;  "Petrus,"  IV,  10;  "Montpellier,"  52;  "Carcassonne,"  38; 
"Ass.  de  Jer.,"  "C.  des  B.,"  184,  201;  Beaumanmr,  12,  9,  40;  "Gr.  Cout.,"  II 
40;  Pasquier,  "Inst.,"  p.  446;  Ordinance  of  May,  1579;  Loysel,  301;  Palumbo, 
373. 

»'  Council  of  Albi,  1244,  c.  37  (Labbe,  XI,  2370). 

*  Thirteenth  century.  Cf.  "L.  Wisig.,"  2,  5,  12;  D.  Vaissette,  8,  1293  (in 
1251);  Council  of  Avignon,  1279,  c.  14,  etc.;  G.  Durand,  "Spec,"  II,  2,  12,  9; 
Auffroy,  448,  519,  599,  656;  Stobbe,  V,  37;  Pollock  and  Maitldnd,  II,  339.  Cf. 
publication  in  Italy:  Fertile,  IV,  30;  "Paris,"  293  (registers  for  baptisms, 
marriages,  wills  and  burials) ;  "Lib.  Instrum.  Memor."  (Montpellier),  p.  194 
et  seq. 

^  Depositing  of  the  deed  with  the  notary  of  the  locality  after  the  death  of 
the  testator. 

699 


§  496]  INTESTATE  SUCCESSION,  GIL^-TUITOUS  CONVEYANCES  [Chap.  IV 

round  it  with  formalities,   that  is  to  say,   with  guarantees  of 
sincerity. 

§  497.  The  Same.  —  (B)  Modern  state  of  law}  The  forms  of 
the  will  are  not  the  same  in  countries  of  written  law  and  in  coun- 
tries of  Customs.^  The  Ordinance  of  August,  1735,"  kept  its  regula- 
tions on  this  point  in  two  different  parts. ^  1st.  The  Holographic  will,^ 
which  is  the  most  simple  of  all  because  it  is  sufficient  if  it  is  dated, 
written,  and  signed  by  the  hand  of  the  testator.  In  the  thirteenth 
and  fourteenth  centuries  the  affixing  of  the  notarial  seal  was  re- 
quired in  order  to  make  it  valid;  ^  after  that  the  signature  of  the 
testator  took  its  place.  An  exception  in  countries  of  written  law, 
it  seems  to  have  been  little  used  in  countries  of  Customs.^  —  2d. 
Nuncupative  will,  or  verbal  will  of  the  countries  of  written  law.^ 
This  consisted  in  a  declaration  made  in  the  presence  of  five  or 
seven  witnesses.^  It  was  perfectly  logical  to  admit  it  at  a  time 
when  the  rule,  "Witnesses  are  preferred  to  writings,"  was  followed. 
When  the  opposite  principle  was  adopted,  "Writings  are  preferred 
to  witnesses,"  it  should  have  been  abolished;  this  was  only  done 

1  Registration  of  wills:  Edict  of  June,  1581,  Arts.  IV  and  VII;  Edicts  of 
1693,  1703;  Oct.  29,  1720;  Oct.  17,  1721.  Cf.  Registration  of  Gifts:  Viollet, 
903;  "  Papyrus  of  Ravenna,"  Girard,  loc.  cit.;  "Form.  Wis.,"  21,  25;  Thevenin, 
no.  18;  Palumbo,  150,  273.  —  With  the  Germanic  and  Customary  practice  in 
the  matter  of  the  transfer  of  the  ownership  of  immovables  seem  to  be  connected 
the  Customs  of  Flanders,  which  require  legal  formalities  (ratification,  acknowl- 
edgment and  registration),  at  least  in  order  that  the  testamentary  heir  should 
be  invested  with  the  ownership:  Boutaric,  I,  103;  Britz,  912;  Struve,  "Jurisp. 
for.,"  II,  15.  Cf.  Demuth,  "Wechsels,  Verfiig.,"  25;  Huber,  IV,  608  et  seq. 
The  intervention  of  the  court  or  the  public  authorities  is  very  frequently  met 
with  in  the  Germanic  countries. 

2  Halm,  "Dediv.  Test,  form.,"  1817;  Hommel,  "De  Script,  in  Test,  nunc," 
1729;  Netlelbladt,  "De  Test,  noncup.  in  Script,  red.,"  1758;  Viollet,  890; 
Fertile,  IV,  25;  Stobbe,  §  304;  Masuer,  32;  Mich.  Grassus,  "Sentent.  de  Success.," 
1603;  "Parfait  Notaire,"  I,  11. 

3  Declarations  of  1745, 1751,  and  1783.  Authors  cited  supra;  "Recueil  des 
Quest,  prop." 

^  PecuUarities:  the  blind,  soldiers,  a  will  made  at  sea,  in  times  of  plague,  etc. 
Cf.  Ferricre;  "  Ord."  of  1735,  27  et  seq.;  Civil  Code,  961;  Argou,  II,  12,  17. 

5  "  Novella  "  of  Valentinian,  III,  4,  2.  All  the  epitomes  of  the  Breviary  deal 
with  it:  "L.  Wis.,"  2,  5,  11,  13,  14;  DeGreve,  "DeTest.  hoi.,"  1825;  "Navarre," 
27,  22.  —  Cf.  also  "testamentum  parentum  inter  liberos." 

8  Beaumanoir,  12,  9:  authentic  seals;  Auffroy,  pp.  600,  650  (seal  of  the  Mayor 
of  La  Rochelle);  Bucherellus,  "Inst.,"  p.  188;  Lamoignon,  "Arr.,"  "Test.,"  49 
et  seq.;  "Ord."  of  January,  1629,  126  (not  enforced);  1735,  1,  3,  16. 

^  Ferrihre,  on  "Paris,"  289.  The  opening  of  the  will  before  the  judge 
and  depositing  it  with  a  notary:  Ferriere,  see  "Ouverture";  cf.  Boutaric, 
p.  873. 

8  "Novella"  of  Th^od.,  II,  2,  1;  G.  Durand,  "Spec,"  II,  2,  12,  39;  Viollet, 
893;  Auffroij,  651. 

9  Seven  for  the  will  and  five  for  the  codicil:  "Wis.,"  2,  5,  12;  "Burg.,"  60; 
"Brachyl.,"  2,  19,  32.  Example  in  Auffroy,  p.  513;  Boutaric,  I,  105;  Serres, 
II,  10.    As  to  witnesses  to  wills,  cf.  R.  Caillemer,  p.  87;  "  Ord."  of  1735,  39  et  seq. 

700 


Topic  4]  TESTAJMENTARY   PROVISIONS  [§  498 

by  the  Ordinance  of  1735,  Art.  1.^  —  3d.  Will  by  public  deed. — 
(a)  Written  nuncupatue  loill  -  of  countries  of  written  law.^  This 
was  a  declaration  made  by  the  testator  in  the  presence  of  seven 
witnesses,  including  a  notary,  who  wrote  it  down  at  the  dictation 
of  the  testator.**  —  (6)  Formal  will  of  the  countries  of  Customs. 
This  consisted  in  a  declaration  (dictated)  made  in  the  presence 
of  two  notaries,  or  of  one  notary  and  two  witnesses,  and  taken 
down  in  writing  by  either  of  the  two  notaries  or  by  the  single 
notary.  This  is  the  will  of  the  canon  law  secularized;  but  the 
courts,  reacting  against  the  spirit  of  the  canon  legislation,  called  for 
a  great  deal  of  strictness  in  passing  upon  its  validity;  the  most 
minute  formalities  prescribed  in  the  case  of  notarial  deeds  must 
be  observed,  under  penalty  of  nullity.^  —  4th.  Mystic  will,  or 
secret  will  of  countries  of  written  law,  borrowed  from  the  legal 
system  of  the  Lower  Empire  (tripartite  wills).  The  testator  pre- 
sents to  seven  witnesses,  including  a  notary,  a  paper  folded  and 
sealed,  declaring  at  the  same  time  that  therein  are  contained  his 
last  wishes;  the  notary  draws  up  a  minute  upon  the  envelope  (act 
of  subscription).^ 

§  498.  The  Same.  —  (V)  Revocation  of  wills,  (a)  Express.  This 
results,  in  countries  of  Customs,  from  a  notarial  deed,  or  one 
under  private  seal,  whereas  in  the  South  a  new  will  is  necessary, 
following  the  Roman  law.  (h)  Implied.  This  would  take  place  by 
means  of  any  change  of  will  manifested  in  a  way  which  was  not 
equivocal:  inconsistency  with  a  previous  will,  alienation  of  pos- 
sessions which  had  been  bequeathed,  or  an  enmity  sprung  up  be- 
tween the  testator  and  the  heir  who  had  been  appointed.  In  the 
South  the  custom  of  the  appointment  of  an  heir  results  in  every 
valid  will  revoking  all  preceding  wills,  even  if  its  provisions  are 

1  Pasquier,  "Inst.,"  p.  467  (out  of  use  since  the  "Ord."  of  1566). 

2  D.  Vaissette,  VIII,  1292.  Use  of  the  codicil  clause:  G.  Durand,  "Spec," 
2,  2,  12,  9,  18.  For  Codicils  five  witnesses  were  sufficient:  Argou,  II,  17. 
Cf.  Girard,  p.  805  (will  "  apud  acta  ").  As  to  the  subscribing  of  witnesses,  cf. 
ibid.,  p.  804;  Giry,  "Diplom.,"  p.  601.  As  to  codicils,  "Tract,  univ.  jur.," 
VIII. 

'  Fans,  "Acad.  I^g.  Toul.,"  XI,  14;  Viollet,  893;  "Lib.  Instr.  Mem.,"  172 
et  seq. 

*  For  a  long  time  the  scribe  who  drew  up  the  will  was  not  a  public  officer: 
Giry,  "Diplomat.,"  p.  826  (ninth  and  eleventh  centuries);  "Wis.,"  2,  5, 10.  Some 
of  the  Customs  were  satisfied  with  three  or  four  witnesses,  and  these  need  not 
include  a  parish  priest  or  notary:  Loysel,  301;  "Bourbon,"  289. 

"  "Paris,"  289  (and  Commentaries);  Pasquier,  "Inst.,"  p.  469;  Civil  Code, 
971. 

«  "Novella"  of  Th^od.,  II,  9  (in  439);  "Inst.  Just.,"  2,  10,  3;  "Burg.,"  43, 
60;  D.  Vaissette,  VIII,  1293  (in  1251);  G.  Durand,  "Spec,"  II,  2,  12;  Serres, 
"Inst.,"  II,  10.  — Cf.  Pertile,  IV,  29;  Civil  Code,  976. 

701 


§  498]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

reconcilable  with  theirs.^  Formerly,  under  the  influence  of  the 
old  ideas  as  to  irrevocability  of  covenants  relating  to  succession, 
certain  impediments  to  freedom  to  revoke  wills  were  tolerated; 
for  example,  it  was  allowed  to  covenant  that  a  will  could  not  be 
revoked  excepting  under  certain  conditions  (clauses  in  derogation), 
a  later  will  would  only  be  valid  if  it  began  with  formulae  such  as 
"Beatus  vir  qui  timet  dominum."  ^  The  Ordinance  of  1735,  Art. 
76,  abolished  this  custom.  When  by  means  of  the  same  deed  two 
persons  had  made  a  will  for  each  other's  benefit  (conjunctive 
wills)  ^  one  of  them  could  not  revoke  the  provisions  which  they 
had  made  without  notifying  the  revocation  to  the  other,  evi- 
dently so  that  the  latter  could  do  the  same  on  his  part.  This 
double  deed,  which  did  not  accord  with  the  Roman  conception 
of  the  will,  recalls  the  "interdonatio"  of  the  barbarian  period, 
and,  like  the  latter,  is  especially  made  use  of  between  spouses.^ 
Art.  77  of  the  Ordinance  of  1735  forbade  it. 

1  Beaumanoir,  12,  41  et  seq.;  Auffroy,  p.  488  (a^ts  of  1022,  etc.).  Cf. 
revocation  of  gifts:  see  Ferriere;  Fleiiry,  "Inst.,"  I,  313.  The  judge  may  hold 
a  will  as  being  revoked  should  there  be  posthumous  children:  Argou,  II,  13; 
Chaisemartin,  p.  434. 

2  " Entendez-vous  bien,"  etc.;  "Lib.  Instr.,"  202;  see  Ferriere. 

3  Stobbe,  V,  250  (bibl.  and  details):  "testamenta  simultanea,  reciproca, 
mutua,  correspectiva":  Harmann,  "Erbvertr.  u.  gemeinschaftlich.  Testam.," 
1860.  Cf.  mutual  gifts  and  partition  among  ascendants.  Hesitation  and 
diversity  upon  the  theory  of  conjunctive  wills.  Post,  "Contractual  Appoint- 
ments." 

4  "Nov."  Valent.,  Ill,  4,  1  (epit.);  Pardessus,  "Diplom.,"  I,  136  (in  572); 
"Papyrus  of  Ravenna,"  in Marini,  "Papir.  dipl.,"  no.  75;  TMvenin,  "Textes," 
nos.  18,  40  et  seq.;  Marculfe,  II,  17;  Schulze,  p.  29;  Huber,  IV,  632. 


702 


Topic  5]        GIFTS    "IXTER   VIVOS"   AND    "CAUSA  MORTIS"        [§  500 


Topic  5.   Gifts  "inter  vivos"  and  "causa  mortis' 


§  499.  The  Formula  of  Loysel. 

§  500.  Gifts    during    the    Barbarian 

Period. 
§  501.  To  give  and  to  withhold  is  not 

Valid. 
§  502.  Formalities. 


§  503.  Incapacity    to    give    and 

receive. 
§  504.  Gifts  between  Spouses. 
§  505.  Mutual  Gifts. 
§  506.  Revocation  of  Gifts. 
§  507.  The  Gift  "  causa  mortis." 


to 


§499.  The  Formula  of  Loysel,  662,  "Everj^one  [of  sufBcient 
age]  can  dispose  of  his  possessions  at  his  pleasure  by  gift  'inter 
vivos,'  according  to  the  opinion  of  all  our  French  doctors,"  is  just 
the  opposite  of  the  very  old  law.  Even  in  the  time  of  Loysel  it  is 
far  from  being  accurate.  In  the  very  old  law  the  gift  runs  too 
much  counter  to  the  rights  of  the  family  or  those  of  the  superior 
owners,  for  it  to  be  authorized  "de  piano";  and  when  these  rights 
became  weaker  it  was  still  looked  upon  with  disfavor.  It  ran 
counter  to  many  restrictions:  (a)  The  rule,  "To  give  and  to  with- 
hold is  not  valid";  (6)  special  formalities;  (c)  special  disabilities;, 
(d)  theory  of  the  legal  share.  This  mere  enumeration  shows  how 
far  they  were  from  freedom  of  giving;  the  theorists  of  the  school 
of  natural  law  may  in  vain  proclaim  that  the  gift  is  an  "  act  rec- 
ognized by  the  law  of  nations"  and  an  indispensable  attribute  of 
ownership;  ^  it  is  easy  to  see  that  it  could  scarcely  have  been  treated 
otherwise,  starting  with  the  idea  that  this  was  an  act  of  the  civil 
law.^ 

§  500.  Gifts  during  the  Barbarian  Period.^  —  The  gift  "  inter 
vivos"  is  carried  out  by  handing  over  (delivery);  ^  but,  as  applied 
to  immovables,  it  has  a  personal  character  which  has  made  it 
differ  greatly  from  the  Roman  gift.''    It  is  rather  a  gratuitous  lend- 

1  Pothier,  no.  4;  Pasquier,  "Inst.,"  p.  327. 

*  It  was,  however,  less  dangerous  for  the  family  than  the  will,  for  there  is 
a  certain  repugnance  for  gifts  "inter  vivos,"  and  to-day  there  are  only  five 
such  gifts  for  every  hundred  wills. 

3  Viollet,  "Dr.  pubhc,"  I,  320;  Thevenin,  "Textes,"  Table,  see  "Dona- 
tions" (various  clauses).    Cf.  deeds  in  D.  Vaissette,  "Cartul.,"  etc. 

*  Gifts  by  means  of  a  promise  do  not  seem  to  have  been  possible.  The 
formal  contract  would  not  have  bound  the  heirs;  the  extent  of  its  application 
was  limited  (giving  of  surety,  etc.) :  Thevenin,  nos.  40,  69,  75,  83,  132  (solemn 
forms).    Cf.  Salvioli,  "Pubhcata  n.  vendita,"  1895. 

^  This  is  what  was  proved  by  Brunner,  "Landschenk.  d.  Merow.,"  1885 
("Forsch.,"  p.  4);  Tamassia,  "Don.  more  salario,"  1901:  Bondroit,  "Precariae 
Verbo  Regis,"  1901;  Guilhiermoz,  "Orig.  de  la  Nobl.,  p.  104;  Marignan, 
"Et.  s.  la  Civilis.  Fran^.,"  I;  Dareste,  "Et.,"  p.  329,  63. 

703 


§  500]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

ing  than  an  absolute  gratuity.  Thus  the  possessions  given  do  not 
pass  to  the  heirs  of  the  donee  (cf.  Prankish  benefices),  unless  there 
is  an  expressed  clause,  and  the  tendency  is  always  in  the  direction 
of  the  limitation  of  inheritance  and  the  reversion  to  the  donor.^ 
If  the  gift  is  made  to  an  heir,  it  constitutes  an  advancement  of 
inheritance;  and  one  can  understand  that  at  the  death  of  the 
donor  it  would  come  back  to  increase  his  estate.  The  reversion 
pertaining  to  succession  is  only  a  natural  application  of  these 
ideas.^  The  donee  has  not  the  right  to  dispose  of  the  possessions 
given  unless  there  is  a  clause  which  authorizes  him  to  do  so,  or 
unless  he  has  the  special  permission  of  the  donor.^  Frequently, 
the  gift  is  made  with  a  certain  object,  for  example,  on  condition 
of  services;  if  this  object  is  not  realized,  the  donor  takes  back 
his  possessions.**  To  sum  up,  the  gift  only  conveys  a  limited 
ownership;  ^  its  effects,  even  against  third  parties,  depend  upon 
the  clauses  w^hich  it  contains,  upon  the  "lex  donationis."  ^ 

So  little  could  gifts  be  counted  upon,  that  the  Lombard  law 
devised  an  expedient  to  render  them  permanent.  It  required  for 
the  formation  of  a  gift  a  counter-giving  on  the  part  of  the  donee;  ^ 

1  Cf.  English  law.  Necessity  of  the  clause  "sibi  et  heredibus  suis."  If  they 
said  "sibi  aut  heredibus"  there  would  be  a  reversion  to  the  donor:  Glanville, 
7,  1,  2;  Bracton,  fo.  176  and  926;  Pollock  and  Maitland,  II,  24;  "Valenciennes," 
1619,  Art.  108.  Sweden:  Aviira,  "N.  O.,"  I,  510,  550  (Vestrogoths :  the  vendor 
also  has  the  right  to  take  back  the  property  sold) .  Frisia:  Richiofen,  "Fries, 
Rechtsq."  (gifts  to  illegitimate  children).  "Sedan,"  116.  Bavaria:  "  M.  G.  H., 
L.  L.,"  Ill,  460,  c.  8.  Cf.  as  to  this,  exclusion  of  women  from  the  Sahc  land  and 
succession  to  fiefs,  ante.  —  In  our  own  time,  cf.  bestowal  of  some  grade  of  some 
order  of  knighthood. 

2  "L.  long.  Car.,"  106;  Schroeder,  221. 

'  Deeds  including  the  clause:  "Quiquid  exinde  facere  volueris,  liberam 
habeas  potestatem."  In  others  the  donor  adds:  "ex  permisso  nostro."  Mar- 
culfe,  I,  14,  31;  Brunner,  p.  12  (gifts  of  the  Bavarian  dukes);  cf.  "Bai.,"  1,  1. 
Confirmation  of  gifts  by  the  Frankish  kings:  Greg.  Tours,  9,  42;  10,  31,  etc.; 
"Cart,  de  Redon,"  no.  144;  "Burg.,"  1,  3.  —  In  our  day,  cf.  gift  of  a  book  with 
dedication. 

*  "Roth.,"  225  (to  generalize);  "Wis.,"  5,  3,  1,  3;  5,  2,  4;  Greg.  Tours,  8, 
22  (Bodigiselm);  9,  35  (Waddo);  "F.  Vat.,"  275.  Pretentions  of  royalty  over 
the  domains  granted  to  the  churches  and  the  abbeys:  Loening,  "D.  Kirch.," 
I,  300;  Vanderkindere,  "Introd.  h  I'Hist.  de  Belg.,"  p.  279;  Marignan,  "Et. 
s.  la  Civilis.  Fr.,"  I;  Bondroit,  "De  Capacit.  possid.  eccles.,"  1900;  Vauthier, 
"Pers.  morales,"  p.  80,  95. 

6  One  also  finds  at  this  period  gifts  of  the  absolute  ownership  that  are  irre- 
vocable and  inheritable  (cf.  "F.  Vat.,"  275),  in  this  following  the  example  of 
the  Roman  law.  But  the  old  Germanic  conception,  the  rights  of  the  family 
or  of  the  grantor  are  more  in  favor  of  gifts  of  a  limited  ownership :  cf.  Reverdy, 
p.  336. 

^  The  difficulty  is  to  explain  why  the  "lex  donationis"  could  be  opposed 
to  third  parties.    Cf.  Albertu,  II,  18;  "Et.  de  St.  Louis,"  I,  117. 

'  ValdeLihre,  "Launegild  u.  Wadia,"  1877;  "Z.S.S.,^'  1883,  "G.A.,"  15 
(bibl.);  PapTpenheim,  "Launeg.  u.  Gaireth.,"  1882  ("Unters.,"  by  Gierke); 
Havet,  "N.R.H.,"  1878,255;  Schupfer,  "Arch.  Giur.,'^  1883,507;  cf.  "Ann.  d. 

704 


Topic  S]        GIFTS    "INTER  VIVOS"   AND    "CAUSA  MORTIS"        [§  501 

after  having  received  the  possessions  with  which  he  was  presented, 
he  should  give  to  the  donor  some  object  of  small  value  (a  ring,  a 
cloak,  etc.),^  called  "Launegild,"  that  is  to  say,  to  a  certain  extent, 
value  in  exchange.  By  this  means  he  changed  the  gift  into  an  act 
involving  exchange,  an  exchange  which  was  even-handed;  and  acts 
of  this  nature  are  the  only  ones  which  the  old  legislation  sanc- 
tioned. If  there  was  no  "Launegild,"  the  property  which  had  been 
given  could  be  taken  back;  once  the  "Launegild"  had  been  given, 
the  gift  was  irrevocable  and  the  donor  was  bound  to  guarantee  it 
(if  there  was  any  eviction,  "reddat  ferquido,"  i.e.  "similem"). 
The  "Launegild"  degenerated  in  the  thirteenth  century  into  ear- 
nest money  to  confirm  a  transaction.^ 

§  501.  To  give  and  to  withhold  is  not  Valid.^  —  The  gift,  little 
by  little,  lost  its  personal  character  in  order  to  revert  back  to  the 
Roman  type.  Everything  contributed  to  this  result,  —  a  new 
conception  of  the  gift,  implying  that  the  donor  deprived  himself 
absolutely,  the  simpleness  of  this  solution,  the  method  of  realiza- 
tion, the  revival  of  the  will,  opposition  between  deeds  "causa 
mortis"  and  deeds  "inter  vivos,"  —  to  say  nothing  of  the  Roman- 

Giur.  Ital.,"  1871;  Franken,  "Pfandr.,"  59;  Esmein,  "Contrats,"  p.  13;  Pal- 
wnbo,  "Test.,"  254;  Schroeder,  294;  Heusler,  I,  80;  II,  254;  Brunner,  "Forsch.," 
624,  3;  Wodon,  "Forme,"  p.  197. 

1  "Lohn,"  compensation;  "Geld, "money.  Cf.  "Widerdonum," recompense: 
"Form.  s.  Roth.,"  184.  Indispensable  in  the  case  of  a  gift,  the  "Launegild" 
is  also  applied  to  other  acts  (delivery  of  the  wife  to  the  husband,  adoption, 
emancipation,  transactions,  etc.),  perhaps  by  an  extension  of  its  use,  in  the 
case  of  a  gift.  Cf.  Schroeder,  loc.  cit.  There  is  some  question  about  this  in  the 
Edict  of  Rotharis,  175,  184:  Thevenin,  nos.  48,  59,  61.  This  is  an  old  usage, 
"cawerfeda,"  allowing  one  to  dispose  of  one's  possessions  privately,  and  not 
an  expedient  devised  to  take  the  place  of  gifts  "per  gairethinx,"  which  fell 
into  disuse  when  the  popular  diet  became  an  assembly  of  the  foremost  men 
(at  the  latest  in  the  eighth  century).  In  the  thirteenth  century  Car.  de  Tocco 
states  that  the  "Launegild"  was  no  longer  in  use. 

2  Various  systems  besides  that  which  is  set  forth  in  the  texts:  1st.  A  mark 
of  the  donee's  gratitude  {Val  de  Lievre,  who  gave  up  this  idea),  which  cannot 
be  reconciled  with  the  "Launegild  requirere"  of  the  texts.  2d.  A  symbol  of 
the  consideration  for  the  gift,  like  the  price  in  a  sale  (Pappenheim) ,  but  the 
symbol  expressed  the  very  opposite  of  the  idea  of  gratuitousness.  3d.  The 
confirmatory  earnest  money  of  the  Roman  law  (Beseler)  or  the  "constitu- 
toria,"  earnest  money  of  the  Germanic  law  (Sohm,  etc.).  But  the  earnest 
money  is  given  before  the  execution  of  the  contract.  4th.  A  means  of  pro- 
tecting gifts  from  being  attacked  by  relatives  of  the  donor  bj*  transforming 
them  into  deeds  with  a  consideration.  But  deeds  with  a  consideration  them- 
selves could  be  attacked.  It  is  simpler  to  say  that  this  is  a  counterpart  of 
exchange  which  was  intended  to  make  the  deed  irrevocable  on  the  part  of  the 
donor:  "in  omnibus  contractibus,"  says  the  Lombard  law,  "permutatio  con- 
tinetur."     Cf.  "  venditio  nummo  uno  "  of  the  Roman  law. 

3  A.  Desjardines,  "  R.  crit.,"  XXXIII,  207;  Ch6)ion,  "R.  Canon.,"  1899 
(a  question  of  law  in  the  tenth  century).  Theses;  Reverdy,  p.  193;  Constant, 
1889,  etc.;  Stobbe,  V,  186. 

705 


§  501]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

canonic  influence.  Just  as  in  the  past,  delivery  was  always  re- 
quired, and  one  can  say  that  there  was  no  gift  without  the  donor's 
giving  up  possession.  This  rule  resulted  from  the  fact  that  the 
simple  agreement  to  give  was  not  obligatory,  —  "  To  promise  and 
to  keep  the  promise  are  two  things";  ^  in  order  to  produce  the  ef- 
fect it  had  to  be  carried  out  {cf.  real  contracts) ;  ^  now,  the  carry- 
ing out  here  consisted  in  the  transfer  before  the  lord,  by  means  of 
the  vesting  and  divesting  in  such  a  way  that  it  was  difficult  for 
the  donor  to  withhold  in  his  own  possession  the  thing  given,  just 
as  it  was  difficult  for  him  to  take  it  away  from  the  donee  (strictly 
speaking,  he  would  need,  in  order  to  do  this,  to  have  recourse  to 
the  same  formalities,  but  in  the  opposite  way).  To  this  state  of 
law  corresponds  the  maxim,  "To  give  and  to  withhold  is  not 
valid";  ^  it  expresses  the  necessity  of  delivery  without  absolutely 
iniplying  irrevocabihty.  In  fact,  the  books  of  maxims  of  the 
thirteenth  century  authorize  the  donor  to  insert  in  the  deed  a 
clause,  allowing  him  to  take  back  the  property  given  (to  give  to 
one's  "rapiau"),^  and  in  the  sixteenth  century  the  validity  of  this 
clause  in  certain  cases  is  still  being  discussed.^ 

During  the  period  of  the  drawing  up  of  the  Customs  delivery 
was  no  longer  demanded  with  so  much  strictness,  but,  by  way  of 
set-off,  they  were  very  extreme  on  the  question  of  irrevocability. 

(A)  Contracts  being  formed  "solo  consensu,"  the  agreement 
to  give  became  binding.  But  if  this  rule  was  admitted  as  far  as 
promises  to  pay  a  sum  of  money  or  to  pay  a  rent  were  concerned, 
it  was  not  the  same  with  gifts  affecting  immovables.^    It  is  only  at 

1  "Ass.  de  J^r."  J.  d^Ibelin,  144  (gift  in  words,  but  not  in  deed);  "Clef  de 
la  H.-C,"  194;  "C.  des  B.,"  214  (a  gift  is  invalid  without  the  seisin  of  the 
thing);  Glanville,  VII,  1;  Bracton,  fo.  11,  38  etseq.;  "Fleta,"  III,  3;  Blackstone, 
II,  20,  30.  The  EngUsh  texts  almost  confuse  gifts  and  aUenation.  Naples, 
cf.  Fertile,  IV,  585;  "Sachsensp.,"  I,  52  (legal  "Aufiassung");  Lattes,  p.  225; 
De  Mony,  "Comtes  de  Foix,"  II,  16,  371. 

*  They  could  have  been  satisfied  with  a  partial  carrying  out,  earnest  money, 
etc.,  as  in  the  case  of  ordinary  contracts. 

^  "A.  C,  Champagne,"  Art.  44:  necessity  of  divesting  and  investing  at  law; 
if  the  donor  keeps  the  inheritance  without  paying  any  quit-rent  to  the  donee, 
the  gift  will  be  invalid  as  against  the  heir  of  the  donor  at  the  death  of  the 
latter;  by  the  common  law  and  by  the  "Coutume  de  Champagne,"  "To 
give  and  to  withhold  is  invalid";  "Gr.  Cout.,"  II,  28  {cf.  sale);  Loysel, 
659;  "Paris  A.  C,"  160;  "N.  C,"  273  to  275  (to  give  and  to  withhold  means 
that  the  donor  remains  in  possession  until  Ins  death) .  —  As  to  movables, 
manual  gift.  Annexed  State:  "Ord."  of  1731,  15;  Duval,  "De  Reb.  dub.," 
2;  P.  Bressolles,  "Dons  manuels,"  1882. 

*  Beaumanoir,  12,  39;  34,  2;  "Ass.  de  J(5rus.,"  "Abr.  C.  des  B.,"  I,  35;  "L. 
d.  Droiz,"  321. 

s  Opinion  of  Charondas  le  Caron,  on  "Paris,"  275  (charge  of  the  debts). 
8  Delalande,  on  "Orleans,"  283;  Ragueau,  on  "Berry,"  7,  1;  Buridan,  on 
"Reims,"  238;  D.  du  Pont,  on  "Blois,"  269;  see  Guyot.    The  "Cod.  Th6od.," 

706 


Topic  5]        GIFTS    "IXTER  VIVOS"   AND    "CAUSA  MORTIS"        [§  501 

the  end  of  the  eighteenth  century  that  it  was  recognized  that  such 
gifts  gave  rise  to  a  personal  action  against  the  donor  with  the 
effect  of  compelKng  him  to  transfer  the  ownership.^  This  trans- 
action had  itself  become  more  simple.  Instead  of  vesting  and 
divesting  before  the  lord,  they  were  satisfied  with  a  real  delivery 
to  the  grantee,  and  even  with  fictitious  deliver^',  following  the  law 
of  the  Customs.  But  this  change  had  great  difficulty  in  being  ac- 
cepted as  far  as  gifts  were  concerned ;  ^  at  one  time  real  delivery 
was  always  required,  and  at  another  time  certain  forms  of  fic- 
titious delivery  —  such  as  the  withholding  of  the  usufruct  — 
were  tolerated;  but  others  were  rejected  —  such  as  the  clause  of 
disseisin-seisin  —  because  they  seemed  to  run  too  directly  counter 
to  the  old  Customary  rule.^  At  last,  however,  fictitious  delivery 
was  held  sufficient,^  and  there  was  nothing  to  prevent  the  donor 
from  keeping  the  thing  given  in  his  own  possession,  —  for  example, 
as  usufructuary  or  farm  tenant.  —  (B)  The  maxim,  "To  give 
and  to  withhold  is  not  valid,"  which  had  ceased  to  be  understood 
as  relating  to  the  necessity  of  a  real  delivery,  no  longer  had  any- 
thing in  view  excepting  the  irrevocability  of  the  gift.^  This  meant 
that  the  donor  could  reserve  neither  the  ownership  of  the  things 
given  nor  the  right  to  deprive  the  donee  of  them  whenever  he  saw 
fit  to  do  so  (for  example,  by  inserting  in  the  deed  a  condition  of 
recall,^  by  imposing  upon  the  donee  the  charge  of  his  own  future 
debts,  by  giving  him  property  to  be  acquired  in  the  future,  that  is 
to  say,  property  which  it  depended  upon  himself  to  acquire.)^ 

8,  12,  1,  seems  to  require  the  actual  delivery  "advocata  vicinitate"  for  the 
validity  of  gifts.  Although  Justinian  made  the  covenant  to  give  a  binding 
one,  this  innovation  was  only  known  in  France  after  the  twelfth  century: 
"MontpeUier,"  p.  74;  Beaumanoir,  12,  39;  30,  38;  80,  9;  "T.  A.  C,  Bret.,"  318, 
319;  Esmein,  "Contrats,"  pp.  183,  189. 

1  Ferriere,  on  "Paris,"  273;  Ricard,  879;  Pothier,  no.  77;  "Ord."  of  1731,  5. 

2  Certain  Customs  always  require  real  delivery  (customs  of  seisin  and  of 
public  nams):  "Reims,"  231;  "Laon,"  53;  "Sedan,"  109;  "Senlis,"  212; 
"Valois,"  130,  etc. 

'  Ricard,  940;  Pothier,  no.  251;  Ferriere,  on  "Paris,"  275;  Masuer,  24. 

*  Loysel,  746;  Pothier,  no.  67,  Civil  Code,  938. 

s  Beaumanoir,  12,  39  (irrevocability  unless  there  be  a  clause  to  the  contrary) : 
Boutaric,  I,  45;  "Cout.  Not.,"  143;  "Gr.  Cout.,"  2,  8.  Confirmations:  "L. 
d.  Dr.,"  no.  479,  982;  Desmares,  248,  371.  Cf.  "Toulouse,"  186  et  seq.;  "iMont- 
peUier,"  74;  Tardif,  "Dr.  priv(5  au  XIII°  siecle,"  p.  70. 

^  This  irrevocability  did  not  go  so  far  as  to  apply  to  accidental  conditions 
or  those  independent  of  the  will  of  the  donor  in  general  (ingratitude,  subse- 
quent birth  of  children):  Ricard,  nos.  1038,  1046.  Cf.  the  clause:  "I  give  you 
my  house  should  I  die  before  you." 

'  Reservation  by  the  donor  of  the  right  to  dispose  of  something  included 
within  the  gift  or  of  a  fixed  sum  to  be  taken  out  of  the  possessions  given 
(charged  with  the  carrying  out  of  the  last  will  of  the  donor).  In  such  a  case 
as  this  there  are  two  distinct  gifts,  —  one  being  void  and  the  other  vahd  (of. 

707 


§  501]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

These  reservations  annulled  the  entire  gift.^  It  seems  as  though 
it  was  because  they  rendered  the  gift  not  very  sincere  and  ran 
the  risk  of  becoming  a  source  of  difficulties;  if  they  did  not 
take  the  trouble  of  annulling  the  sale  under  these  same  circum- 
stances, it  is  because  scarcely  any  sales  of  this  nature  are  ever 
presented  in  practice.^  Our  old  authors  justified  the  rule,  "To 
give  and  to  witlihold  is  not  valid,"  by  another  consideration;^  in 
their  opinion  its  principal  usefulness  consisted  in  preventing  heed- 
less gifts  which  w^ere  prejudicial  to  families;  in  fact,  by  compelling 
the  donors  entirely  to  deprive  themselves,  to  strip  themselves 
of  their  means  of  livelihood  and  all  power  to  revoke  what  they  had 
done,  they  were  restrained  by  their  ow^n  interests;  "He  who  gives 
what  is  his  before  dying  is  getting  ready  soon  to  suffer  greatly." 
This  reasoning  is  based  on  a  very  just  remark,  which  is  that  it 
costs  little  to  strip  one's  heirs  and  a  great  deal  to  strip  one- 
self. But,  if  it  was  apparently  right,  as  long  as  the  donor  was 
obliged  physically  to  dispossess  himself  of  the  property  given, 
it  lost  almost  all  of  its  force  when  this  was  no  longer  required. 
We  can  say  more  exactly  that  it  was  the  reason  which  was  set 
up  for  a  long  time  against  recognizing  fictitious  delivery  in 
matters  of  gifts. 

§  502.    Formalities.  —  1st.    Notarial   deed.     The   Ordinance   of 

"L.  d.  Dr.,"  479).  Gifts  of  possessions  to  be  acquired  in  the  future  were  lawful 
in  countries  of  written  law  upon  condition  that  the  donor  had  reserved  for 
himself,  in  order  that  he  might  make  a  will,  one-twentieth  of  his  possessions: 
Furgole,  on  "Ord."  of  1731,  15.  Id.,  in  Italy;  Fertile,  IV,  586.  Cf.  post,  "Con- 
tractual Appointment." 

1  Domat,  ''Loixciv.,"  I,  10;  "Ord."  of  1731,  15;  D'Aguesseau,  "Lettres,"  in 
"CEuvres,"  XII,  308;  Pothier,  no.  79;  Civil  Code,  943;  Grenier,  "Tr.  des 
Don.,"  1812  (historical  discussion). 

2  Exceptions  in  the  case  where  the  gift  would  ordinarily  be  carried  out: 
mutual  gift,  gift  by  contract  of  marriage,  etc. 

3  The  reservation  only  affected  testamentary  gifts;  the  legal  share  also 
allowed  of  the  reduction  of  gifts  in  the  interest  of  the  nearest  relatives;  those 
who  were  not  entitled  to  the  legal  share  benefited  by  the  obstacle  which  was 
brought  to  bear  upon  gifts  by  the  rule,  "To  give  and  to  withhold  is  not  valid." 
It  seems  as  though  it  would  have  been  more  simple  to  prohibit  gifts;  but  the 
rights  of  the  family  were  not  sufficiently  strong  to  permit  them  to  think  that 
they  could  go  as  far  as  that;  the  jurisconsults  of  the  eighteenth  centurj^  give 
expression  to  this  idea  in  a  slightly  different  maimer  by  saying  that  no  one 
dared  to  interfere  with  a  natural  right  like  the  freedom  of  giving.  In  the  pre- 
ceding centuries  there  had  been  no  scruple  as  to  the  prohibition  of  alienation 
(see  intervention  of  the  relatives,  "Breispruchsrecht,"  etc.);  even  after  these 
rules  had  disappeared  the  spirit  of  the  old  law  was  not  disarmed;  the  axiom, 
"To  give  and  to  withhold,"  etc.,  was  used  to  protect  the  interests  of  the 
family,  and  from  thence  came  the  requirements  pointed  out  in  the  texts 
on  the  subject  of  delivery.  Various  explanations:  Coquille,'" Ijist.,"  "Don."; 
Ricard,  no.  900;  Ferriere,  on  "Paris,"  273.  Cf.  criticisms  by  Desjardins, 
op.  cit. 

708 


Topic  5]       GIFTS    "INTER   VR^OS"   AND    "CAUSA   MORTIS"  [§  502 

1731, 1,  by  compelling  the  intervention  of  a  notary,  only  sanctioned 
an  old  Custom  whose  need  was  felt  all  the  more  as  the  irrevoca- 
bility of  gifts  become  better  established.^  —  2d.  Solemnity  of  the 
acceptance.  This  is  another  requirement  which  simply  bears 
witness  to  the  disfavor  with  which  gifts  were  looked  upon.  The 
Ordinance  of  1731  here  again  limits  itself  to  putting  into  a  law 
a  practice  which  had  already  been  accepted,  a  clause  which  was 
customary  in  the  proceedings  of  notaries.-  —  3d.  Entry  upon  the 
public  registers  of  the  deed  of  gift.^  This  formality  was  borrowed 
from  the  Roman  legislation  ^  and  introduced  into  our  law  by  the 

1  "Protest,  du  Pari,  de  Toulouse,"  "Questions,"  p.  57;  Pothier,  no.  130.  De- 
livery takes  the  place  of  the  authenticated  deed  in  the  case  of  manual  gifts 
of  movables.  —  Italy:  gift  before  judges,  the  town  council  or  a  notary,  Pertile, 
IV,  58.5. 

2  The  acceptance  should  be  formal  and  expressed.  Cf.  Roman  texts: 
Dig.,  39,  5,  19,  2;  "Dec.  Cap.  Tol.,"  384;  Pothier,  no.  47.  A  separate  deed? 
C/.  "Ord."  of  1539,  132;  Declaration  of  1549;  Reverdy,  p.  227. 

3  Quicherat,  "B.  Ch.,"  1860,  440;  Martel,  "Enreg.  dans  les  Gesta  Munic," 
1877;  Renaud,  "R.  de  Leg.,"  1872,  233;  Brunner,  "R.  G.  d.  Urkunde,"  p.  139. 
Theses:  Larnaude,  1876;  G.  Blondel,  1881;  Lattes,  225. 

■"  Entering,  or  copying  upon  public  registers  ("gesta  municipaha,"  offices 
of  the  clerks  of  the  courts),  of  private  deeds  was  in  use  at  Rome  with  the  object 
of  insuring  the  preservation  of  these  deeds  and  of  giving  them  more  force 
("fides  publica,"  to  some  extent  official  character).  Under  the  Lower  Empire 
this  formahty  was  made  compulsory  in  the  case  of  gifts  "with  the  object  of 
furnishing  proof  and  pubUcity."  "Cod.  Theod.,"  3,  5,  1;  8,  12,  1,  3;  "F. 
Vat.,"  249.  As  to  Justinian's  system,  cf.  Girard,  p.  932;  Pertile,  IV,  584. 
Similar  formalities  were  prescribed  in  the  case  of  wills  after  they  had  been 
opened:  "L.  Rom.  Vis.,"  Paul,  4,  6,  1;  Girard,  "Textes,"  729.  The  entering 
of  gifts  and  wills  was  still  practiced  in  Frankish  Gaul  at  the  beginning  of  the 
ninth  century  (Roziere,  221;  Will  of  Bertrann,  Bishop  of  Mans,  612,  in  Par- 
dessus,  "Dipl.,"  no.  230;  gift  of  Harwich  d'Angers  to  the  Abbey  of  Priim, 
804,  in  Martene,  "Ampl.  Coll.,"  I,  54;  Charters  of  Noirmoutiers,  "N.  R.  H.," 
1898,  763).  Traces  of  it  are  still  to  be  found  in  the  tenth  century:  Thevenin, 
"Textes,"  186.  This  entering  was  left  to  the  care  of  an  agent,  in  whom  there 
has  been  an  attempt  to  see  the  prototype  of  a  testamentary  executor:  R. 
Caillemer,  op.  cit.,  19.  But  it  had  become  optional,  and  it  was  abandoned 
more  and  more:  Marculfe,  II,  3;  "Brachyl.,"  II,  13,  11;  Renaud,  op.  cit.  During 
the  early  part  of  the  feudal  period  it  was  mentioned  in  the  countries  of  written 
law,  but  with  the  meaning  of  a  drawing  up  by  a  notary.  Cf.  deeds  of  1172, 
1211,  etc.,  in  D.  Vaissette,  VIII,  c.  293.  Hesitation  in  J.  Faher,  "Inst.,"  fo. 
40,  ed.  1582.  In  the  fourteenth  and  fifteenth  centuries  it  was  re-introduced 
into  the  practice  of  the  South:  Gui  Pape,  "Q.,"  325,  3.50,  etc.;  "Dec.  Cap. 
Tolos.,"  382.  In  the  countries  of  Customs  only  the  registration  of  alienations 
arising  from  the  custom  of  public  mortgages  was  known.  In  certain  com- 
munes,—  for  example,  Amiens,  —  contracts  were  registered.  The  "Ord."  of 
1539  prescribed  the  entering  and  registration,  —  that  is  to  say,  that  gifts 
"inter  vivos"  should  be  coi)ied  in  the  offices  of  the  clerks  of  the  royal  justices 
of  the  place.  Cf.  the  formula  in  Viollet,  905.  The  same  with  gifts  "causa 
mortis";  "Ord."  of  1731,  3.  Details  in  Ferribre,  "So.  des  Notaires,"  17,  4,  5; 
Pothier,  no.  86;  Argou,  II,  11;  Serrcs,  "Inst.,"  II,  7;  Isambert,  see  Table. 
Wills  had  to  be  entered,  but  not  under  penalty  of  annulment:  Edict  of  lay  en- 
tering of  1703:  Pothier,  "  Don.  tost.,"  no.  15.  As  to  the  inspection  or  registration 
of  notarial  deeds  and  deeds  under  private  seal,  and,  consequently,  of  gifts  and 
wills,  cf.  the  Edict  of  1581,  which  established  it  for  the  time  being,  and  then 

709 


§  502]  INTESTATE  SUCCESSION,  GILiTUITOUS  CON\^EYANCES  [Chap.  IV 

Ordinance  of  Villers-Cotterets,  1539,  Art.  132,  not  only  in  the 
fiscal  interest,  but  so  as  to  bring  to  the  knowledge  of  the  public 
the  transfer  of  ownership.  This  became  necessary  from  the  time 
when  the  surrender  of  possession  by  means  of  vesting  and  divest- 
ing ceased  to  be  made  use  of,  and  when  people  were  contented 
with  fictitious  delivery,  —  that  is  to  say,  with  a  secret  transfer 
of  ownership.  The  right  to  invoke  the  lack  of  registry  in  order 
to  have  the  transfer  regarded  as  invalid,  was  only  refused  to  the 
donor  himself;  all  other  interested  parties  possessed  this  right: 
heirs  of  the  donor,  his  legatees,  his  creditors,  even  by  simple 
contract,  later  donees,  or  other  grantees  who  had  given  a 
consideration.^ 

§  503.  Incapacity  to  give  and  to  receive.^  —  The  system  of  in- 
capacities,^ which  was  another  check  upon  the  freedom  of  giving, 
had  the  effect  of  preventing  a  great  number  of  gifts,^  because  it 
affected  the  very  persons  for  whom  gifts  were  preferably  meant, 
—  for  example,  communities  and  religious  establishments,  illegiti- 
mate children,^  spouses,  or  concubines. 

§  504.  Gifts  between  Spouses.^  —  In  Rome  gifts  between 
spouses,  which  were  incompatible  with  the  system  of  the  "manus," 
were  prohibited,  even  when  this  system  was  abandoned,  in  order 
to  avoid  the  abuses  of  influence  on  the  part  of  one  of  the  spouses 
("ne  mutuo  amore  invicem  spoliarentur").  In  the  end,  however, 
it  was  admitted  that  they  would  be  valid  if  the  spouse  who  gave 
predeceased  the  other  one  without  revoking  the  gift,  just  as  tes- 
tamentary gifts  or  gifts  "causa  mortis"  would  have  been.^  The 
countries  of  written  law  adhered  to  these  principles,^  —  In  the 

the  Edict  of  March,  1693,  etc.,  Ferrihre,  "Sc.  des  Notaires,"  17,  2;  Isamhert, 
see  Table.  The  Revolution  substituted  copying  for  entering  (Law  of  the 
11th  Brum.,  year  VII)  and  registration  for  inspection  (Law  of  Dec.  5-19,  1790; 
Law  of  the  22d  Frim.,  year  VII):  "Code  Civil  interm.,"  see  "Insin.,  Transcr., 
Enreg."  —  "Comment,  s.  le  Tarif  du  Controle,"  1766;  Perrin,  "Th.,"  1901. 

1  "Ord."  of  February,  1566,  58;  1731,  27;  Civil  Code,  941;  Pothier,  no.  116. 

2  Pothier,  VIII,  348;  Ferribre,  see  "Incap.  de  succ6der,"  etc. 

^  Very  old  custom  according  to  which  gifts  are  only  possible  when  made  by 
a  person  in  good  health  ("sanus  et  sana  mente"):  "Schwabensp.,"  52;  Huber, 
IV,  610.    Cf.  "Paris,"  277;  Stobbe,  V,  185. 

*  "Cout.  Not.,"  143;  "Paris,"  272  (25  years);  B.  de  Richebourg,  III,  83. 
Monies,  minors,  persons  under  a  disabiUty,  married  women,  and  foreigners. 
Relative  disabilities:  guardians,  judges,  teachers,  confessors,  doctors,  etc. 
"Paris,"  276;  Beaumanoir,  54,  5;  "Const.  Chat.,"  81  (in  fraud  of  creditors). 

6  "A.  C.  Anjou," ed. B.-B.,  II,  461 ;  " L.  d.  Dr.,"  770;  "Summa  Norm.,"  35, 2. 

8  Gifts  between  concubines:  Loysel,  127;  Pothier,  "Tr.  des  Donations 
entre  Mari  et  Femme,"  n.  7,  ed.  B.;  Fertile,  §  111;  Schroeder,  p.  728;  Glasson, 
VII,  532;  Laboulaye,  Gide,  etc. 

'  Girard,  p.  934;  Esmein,  "Melanges,"  p.  49;  "Petrus,"  I,  36. 

8  "Dec.  Cap.  Tol.,"  262;  Serres,  II,  7;  "Siete  Part.,"  4,  11,  4.    Cf.  "Mont- 

710 


Topic  5]        GIFTS   "INTER  VIVOS"   AND    "CAUSA  MORTIS"        [§  504 

countries  of  Customs  more  strictness  was  shown.^  The  marital 
"mundium"  sometimes,  as  in  England,  went  so  far  as  to  absorb 
the  personality  of  the  wife  in  that  of  the  husband,  which  made 
gifts  between  spouses  impossible.  Elsewhere  the  old  system 
placed  the  woman  in  a  strict  dependence  with  regard  to  her  hus- 
band.^ Also,  the  Custom  used  its  authority  to  fix  the  pecuniary 
relations  between  spouses,  especially  in  giving  them  the  portion 
of  the  survivor  and  a  share  in  the  privileges,  so  as  not  to  affect 
the  principle  of  the  preservation  of  property  in  the  family.  At- 
tempted deviations  from  this  were  deemed  to  be  due  to  unwise 
impulse  or  an  abuse  of  authority.  Hence  the  rule  for  the  nullity 
of  gifts  between  spouses,  whether  they  were  direct  or  indirect, 
disguised  or  made  by  means  of  persons  interposed.^  Contracts 
based  upon  a  consideration  were  also  held  to  be  included  in  the 
proscription:  "Nullum  contractum  etiam  reciprocum  facere  pos- 
sunt  nisi  ex  necessitate,"  says  Dumoulin;  it  was  feared  that  gifts 
might  be  hidden  under  cover  of  these  acts.^  Even  testamentary 
gifts  came  to  be  treated  in  the  same  way  as  ordinary  gifts. 
The  Civil  Code  (Art.  1096),  drawing  its  inspiration  rather  from 
the  Roman  system,  allows  of  gifts  between  spouses,  but  declares 
that  they  are  revocable.  Already  the  Revolutionary  laws  of  the 
5th  Brumaire,  year  II,  Art.  2,  and  of  the  17th  Nivose,  year  II, 
Art.  2,  had  broken  with  tradition  by  authorizing  without  reserva- 
tion gifts  between  spouses  by  way  of  donations  or  legacies  (unless 

pellier,"  54;  "Bergerac,"  129;  "Poitou,"  219;  "Angouleme,  Gu^nois,"  XIII, 
52;  Baissonade,  289. 

1  From  what  date?  Barbarian  period.  A  restrictive  tendency  in  "Liut.," 
102:  prohibition  of  gifts  made  by  the  husband  to  the  wife  for  whom  the  ante- 
nuptial gifts  (marriage  portion  and  "Morgengabe")  should  suffice.  Other 
laws  are  more  liberal :  "Rib.,"  48,  49;  "Bai.,"  9,  14;  "Wis.,"  5,  2,  4,  5;  Pardessus, 
"L.  Sal.,"  678.  —  Feudal  period:  P.  de  Fontaines,  33,  14;  Beaumanoir,  12,  4, 
allowing  of  legacies  from  one  spouse  to  another.  According  to  the  "Ass.  de 
Jer.,"  "  C.  des  B.,"  173,  the  husband  can  only  make  a  gift  to  his  wife  at  liis 
death  or  in  his  will.  The  "Et.  de  St.  Louis,"  1,  118,  did  not  allow  the  wife 
to  make  a  gift  to  her  husband  excepting  at  her  death.  The  tendency  which 
prevailed  resulted  in  the  prohibition  of  every  gift  between  spouses  with  the 
exception  of  the  mutual  gift:  "Gr.  Gout.,"  II,  32;  Desmares,  235;  Boutaric, 
1,  99;  "L.  d.  Droiz,"  I,  183. 

2  Strictly  speaking,  gifts  of  the  husband  to  the  wife  should  have  been  in- 
cluded. The  "Gout,  de  Norm.,"  410,  even  prohibited  the  mutual  gift,  but  not 
the  will,  422,  429.  Cf.  "Summa,"  100;  "Saclisensp.,"  31,  2  (the  gift  by  the 
wife  to  the  husband  is  not  even  thought  of).  However,  Struve,  "Inst.,"  II, 
10,  states  that  in  liis  time  gifts  between  spouses  were  lawful  (legal  registration; 
cf.  mutual  gift);  Lehr,  "Dr.  Angl.,"  p.  Ill  (courts  of  equity). 

3  "Gout.  Not.,"  58;  Desmares,  232;  "Et.  de  St.  Louis,"  I,  118;  "A.  G., 
Anjou,"  ed.  B.-B.,  see  Table;  "Paris,"  282;  "Orl6ans,"  280;  Loysel,  127; 
"Gonf.  des  Gout,  de  Gu«5nois,"  648. 

^  P.  de  Fontaines,  p.  113;  Dumoulin,  on  "Paris,"  156,  no.  5. 

711 


§  504]  INTESTATE  SUCCESSION,  GRATUITOUS  CON\'EYANCES  [Chaf.  IV 

in  excess  of  the  usufruct  of  half  of  the  property  when  there  were 
children.^ 

§  505.  Mutual  Gifts.  —  In  use  from  the  Prankish  period,  under 
the  name  of  "interdonatio,"  ^  the  reciprocal  donation  between 
spouses  did  not  cease  to  be  made  use  of  throughout  our  old  law. 
It  had  its  reason  for  existence  in  a  system  without  community 
ownership  and  without  a  portion  for  the  survivor  or  well-regulated 
rights  of  succession.  When  the  community  and  dower  come  into 
existence  it  loses  its  usefulness;  it  is  tolerated  rather  than  en- 
coiu-aged,  as  is  proved  by  the  restrictions  brought  to  bear  upon 
its  validity.  In  his  "Institutes,"  Loysel,  128,  thus  summarizes 
the  rules:  "A  husband  and  wife  who  have  no  children  can  mutu- 
ally give  to  one  another,  provided,  say  some  of  the  Customs,  they 
are  alert  or  equal  in  health,  age  and  belongings."  ^  It  is  this  con- 
cern for  equality  which  was  the  salvation  of  the  mutual  gift.  It 
already  began  to  make  its  appearance  in  the  Prankish  formulae, 
for,  if  one  of  the  spouses  gave  the  entire  inheritance  to  the  other, 
the  latter  gave  the  same  in  return;  but  equality  in  health,  age  and 
fortune  was  not  a  necessary  requisite  for  the  gift  to  be  valid.  This 
gift  might  be  general  or  special,  of  ownership  or  of  enjoyment.  At 
the  same  time,  the  existence  of  children,  which  at  first  did  not  pre- 
vent the  spouses  from  making  donations  to  one  another,^  was  al- 
ways an  obstacle  to  the  giving  of  ownership.  Even  if  there  were 
no  children,  the  mere  giving  of  the  use  for  life  was  generally  pre- 
ferred. Prom  the  fourteenth  century  there  was  a  tendency  to 
have  the  mutual  gift  affect  only  movables  and  property  acquired 
jointly.  In  the  sixteenth  century  the  Customs  of  Paris  no 
longer  allowed  anything  more  than  gifts  of  the  usufruct  of  that 
portion  of  the  community  property  which  would  come  back  to 
each  spouse.^    In  the  earliest  times  the  mutual  gift  could  not  be 

1  Gifts  are  no  longer  revocable  nor  void:  Vermeil,  "Code  des  Succ,"  cited 
by  Troplong,  "Don.,"  no.  2648;  Boissonade,  p.  323;  Sagnac,  p.  298. 

2  Roziere,  "Form.,"  245  et  seq.;  Thevenin,  "Textes,"  40,  82,  132.  Cf. 
Gift  "post  obitum";  "Adfatimus"  of  the  "L.  Rib.,"  49;  Brunner,  "Z.  S.  S., 
G.  A.,"  1885,  79;  Stohhe,  V,  193. 

3  "Gout.  Not.,"  58;  "Gr.  Gout.,"  II,  32;  "Paris  A.  G.,"  155;  "N.  G.,"  280: 
"Anjou,"  328,  etc. 

*  "Paris,"  281.  Mutual  gifts  in  the  marriage  contract  of  children:  Bois- 
sonade, 259. 

*  Rozihre,  op.  and  loc.  cit.;  "Gout.  Not.,"  58  (for  Hfe  or  for  him  and  his 
heirs);  "Gr.  Gout.,"  p.  321  (all  possessions);  Desmares,  235  (movables  and 
jointly  acquired  property);  "Paris,"  280;  "Prevot  de  la  J.,"  II,  233;  Law  of 
17  Niy.,  year  II,  13  (reduction  to  usufruct  of  half  of  the  possessions  if  there 
are  children).  The  person  receiving  a  mutual  gift,  and  who  received  a  portion 
of  the  community,  was  held  for  the  corresponding  debts,  but  only  for  the  in- 

712 


Topics]        GIFTS    "INTER   VIVOS"   AND    "CAUSA   MORTIS"        [§  500 

made  without  delivery;  ^  the  spouses  invested  one  another,  put 
one  another  in  possession  of  the  property  which  they  possessed 
themselves;  ^  also,  the  survivor  did  not  have  to  ask  their  de- 
livery from  the  heirs  of  the  predeceased  spouse  and  the  gift  was 
absolutely  irrevocable.^  In  the  final  state  of  the  law  this  is  no 
longer  so:  "The  mutual  gift  does  not  confer  seisin";  ^  from 
whence  it  follows  that  the  heirs  have  to  make  delivery,  and  the 
irrevocability,  while  it  subsists  on  principle,  becomes  weakened. 
Both  spouses  acting  together  can  revoke  the  mutual  gift;  ^  it  is 
simply  forbidden  one  of  them  acting  alone  to  annul  the  donation 
which  has  been  made.^  The  condition  of  survivorship  assimilated 
the  mutual  gift  to  gifts  "causa  mortis."  Moreover,  almost  as 
much  exaction  was  shown  in  relation  to  its  forms  as  though  it  had 
been  a  matter  of  a  gift  "inter  vivos."  ^ 

§  506.  Revocation  of  Gifts.  —  (I)  Reversion  of  the  inheritance.  — 
(II)  Ingraiiiude  of  the  donee.^  Borrowed  from  the  relations  which 
existed  between  a  patron  and  a  freedman,  the  revocation  for 
ingratitude  had  become  generalized  under  the  Lower  Empire  and 
was  applied  to  gifts  between  persons  of  any  kind.^    It  passed 

terest  on  them,  because  he  was  merely  a  usufructuary.  To  the  spouse  who  has 
been  given  a  mutual  gift  is  appUed  an  old  rule,  cited  in  Chap.  Ill,  Topic  8, 
§  417. 

1  Transfer  "per  cartam,"  c/.  Frankish  formulae  and  deeds:  Demuth,  25  et 
seq. 

2  Cf.  Gift  between  husband  and  wife  or  mutual  gift  {Boutaric,  I,  99, 
and  p.  885,  ed.  1603;  see  Guyot,  Ragueau;  Fasquel,  "These,"  1902):  (a)  By 
■writing:  this  assumed  the  performance  of  the  formalities ;  it  conferred  upon  the 
survivor  the  usufruct  of  plebeian  tenures  and  the  ovioiership  of  the  mo\'ables 
left  by  the  predeceased  with  the  charge  of  giving  up  a  portion  to  the  children 
should  he  remarry  ("pargon,"  "fourmorture,"  see  Guyot;  Britz,  769;  cf.  also 
devolution,  ih.;  variations  in  the  Customs  of  Arras,  Lille,  etc.).  (fe)  By  the 
blood  or  operation  of  law,  when  there  had  been  children  born  of  the  marriage. 
Cf.  Customs  according  to  which  the  community  only  comes  into  existence  at 
that  time:  Tailliar,  "Rec.  d'Actes  du  XIP,  XIIP  s.,"  p.  CCCI;  Brunner, 
"Z.  S.  S.,"  1895;  "G.  A.,"  63.  — Ceremony  of  the  kiss  in  public:  "Tour.,"  13, 
etc.  —  C/.  "Roisin,"  84. 

'  Roziere,  loc.  cit.  Cf.  "post  obitum"  gift.  See,  however,  Thevenin,  82 
(divorce). 

4  Loysel,  129;  "Paris,"  284;  contra:  "Bourbon,"  277;  "Blois,"  163;  "Du- 
nois,"  68. 

5  Court  practice  understood  the  irrevocability  decreed  by  the  Law  of  the 
18th  Niv.,  year  II,  in  this  sense.  As  to  the  Revolutionary  law,  cf.  Fasquel, 
129;  Civil  Code,  1097. 

8  Contra,  the  conjunctive  will.  Here  at  least  the  indirect  revocation  by 
means  of  alienation  for  a  consideration  is  possible. 

'  "Ord."  of  1231,  30,  46.  Notarial  deed,  registration,  but  no  expressed  ac- 
ceptance. Can  the  mutual  gift  be  made  Dy  means  of  two  separate  deeds? 
The  jurisconsults  are  divided. 

*  Failure  to  carry  out  the  charges:  Pothier,  no.  187;  Reverdy,  "Thtise," 
p.  349. 

»  "Cod.  Just.,"  8,  56,  9  and  10;  Girard,  p.  922. 

713 


§  50G]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Cuap.  IV 

into  the  old  French  law,  at  first  on  condition  of  royal  letters,  and 
later  without  this  condition.  As  it  was  a  penalty,  it  only  affected 
the  guilty  donee,  and  not  the  third  party  who  had  negotiated  with 
him,  and  who  had  not  participated  in  his  fault.^  —  (III)  Unex- 
pected birth  of  children.  Another  trace  of  the  Roman  rules  relating 
to  gifts  from  a  patron  to  a  freedman  ("lex  si  unquam").^  The 
revocation  because  of  the  unexpected  birth  of  children  was  looked 
upon  by  wSt.  Augustine  as  being  in  conformity  with  the  Christian 
ideas.^  It  had  no  difficulty  in  maintaining  itself  in  the  countries 
of  written  law.  As  it  was  in  harmony  with  the  Germanic  concep- 
tion of  the  gift  ^  and  with  the  interest  of  the  family,  the  countries 
of  Customs  also  adopted  it.  Our  old  authors  justified  it  by  rather 
weak  reasons:  The  donor  would  not  have  made  the  gift,  "si  cogi- 
tasset  de  liberis";  he  did  not  know '"that  affection  which  nature 
puts  in  the  breast  of  fathers."  These  aphorisms  did  not  tally  very 
well  with  facts,  because  the  donor  might  have  had  children  and 
have  plainly  foreseen  that  he  would  have  others.  In  reality,  the 
unexpected  birth  of  children  was  an  implied  condition  subse- 
quent which  had  been  changed  into  the  form  of  an  obligatory 
rule  in  the  interest  of  the  family.  Since  that  time  the  commenta- 
tors have  been  fighting  over  the  matter  of  revocations  (onerous 
gifts,  mutual  gifts,  gifts  in  favor  of  marriage)  and  over  the  effects 
of  the  former  ("ipso  jiu-e"  or  by  judgment,  "ex  nunc"  or  "ex 
tunc").^  The  controversy  was  sharp,  especially  with  regard  to 
gifts  by  contract  of  marriage;  a  celebrated  decision  of  1551  deter- 
mined that  they  should  be  revocable  of  absolute  right.^ 

1  "L.  d.  Dr.,"  135,  197,  etc.;  Boutaric,  I,  45;  Pothier,  no.  180;  Civil  Code, 
955. 

2  "Cod.  Just.,"  8,  56,  "de  revoc.  don.,"  8  (in  355);  cf.  "F.  Vat.,"  272. 

3  "Dec.  Grat.,"  2,  17,  3,  43. 

4  Edict  of  Rotharis,  111;  Stohhe,  V,  177;  Heusler,  "Gewere,"  475. 

^  One  may  judge  as  to  how  uncertain  this  doctrine  was  by  the  verbal  com- 
mentary upon  the  "Lex  si  unquam"  in  which  Tiraqueau  loses  himself  amid 
the  difficulties  of  the  subject. 

s  This  Order  of  the  Parliament  of  Paris,  April  12,  1551,  was  handed  down 
in  a  case  in  which  Dumoulin  was  a  party.  Wishing  to  devote  himself  entirely 
to  the  study  of  law,  he  had  made  a  gift  of  all  his  possessions  to  his  brother. 
Ferry  Dumoulin  (October,  1531);  but  in  1538  he  married  Louise  de  Beldon, 
and,  having  had  a  child  by  her,  he  petitioned  for  a  rescission  of  the  gift  by  ob- 
taining letters  from  the  Chancery.  The  Parliament  decided  in  his  favor.  It 
was  thenceforth  held  that  gifts  made  in  a  marriage  contract  by  a  person  who 
was  not  bound  to  furnish  a  marriage  portion  should  be  revoked  of  absolute 
right  (although,  following  the  example  of  Dumoulin,  people  often  obtained 
letters  of  resci-ssion).  The  revocation  took  place  "ex  tunc":  but  Dumoulin 
consented  that  the  property  which  had  been  restored  to  him  should  be  en- 
cumbered secondarily  with  a  mortgage  guaranteeing  the  dower  of  his  nephews; 
this  kindly  concession  on  his  part  gave  rise  to  misunderstandings  and  disagree- 

714 


Topic  5]       GIFTS    "INTER   VIVOS"    AND    "CAUSA  MORTIS"         [§507 

§  507.  The  Gift  "causa  mortis,"  which  was  to  be  distinguished 
from  the  old  "post  obitum"  gift,  after  the  twelfth  century  re- 
covered the  same  characteristics  that  it  had  had  in  the  Roman 
law.  Although  a  true  contract  like  the  gift  "inter  vivos,"  and  al- 
though it  assumed  as  its  consequence  acceptance  on  the  part  of 
the  donee,  it  was  none  the  less  revocable  in  imitation  of  the  will, 
(a)  by  the  predecease  of  the  donee;  (b)  at  the  will  of  the  donor. 
Thenceforth  it  did  not  mean  the  immediate  dispossessing  of 
the  donor,  but  only  a  dispossessing  which  was  to  take  place 
at  his  death.^  Only  five  witnesses  were  required  for  its  execution 
(instead  of  the  seven  w^hich  were  necessary  to  the  validity  of 
the  will),  which  resulted  in  its  being  treated  rather  like  a  codi- 
cil. It  was  only  made  use  of  in  countries  of  written  law  and 
for  the  benefit  of  sons  of  the  family  who  did  not  have  capacity  to 
make  wills.^  In  the  countries  of  Customs  it  had  become  confused 
with  the  will.^  The  Ordinance  of  1731,  Art.  3,  being  based  upon 
this  practice,  decided  that  in  the  future  gifts  "causa  mortis" 
would  only  be  valid  if  they  were  clothed  with  the  same  forms  as 
the  will,  which  was  perhaps  not  to  forbid  them,'*  but  which 
was  most  certainly  to  take  aw^ay  all  their  usefulness.^  Civil 
Code,  893. 

ments  to  which  the  "  Ord. "  of  1731  sought  to  put  an  end  in  its  Art.  39.  Cf.  the 
Civil  Code,  930;  Coquille,  on  "  Niv.,"  "Don.,"  13;  Papon,  "Arr.,"  2,  1,  20;  Pas- 
quier,  "Inst.";  Dumoulin,  "De  Don.  in  Contr.  matr.,"  "Opera,"  III,  513,  ed. 
16S1;  Brodeau,  "Vie  de  Dumoulin,"  p.  60;  Aubepin,  "Infl.  de  Dumoulin" 
("R.  crit.,"  1855),  detailed  bibl.  —  As  to  countries  of  written  law,  cf.  Furgole, 
"Don.,"  11,  10;  Maynard,  VI,  60,  8;  Reverdy,  357. 

1  The  Edict  of  February,  1549,  does  not  make  it  necessary  to  register  them: 
Gui  Pape,  325,  610. 

2  "Dec.  Cap.  Tol.,"  454;  Serres,  "Inst.,"  II,  12  and  7.  According  to  the 
"Ord."  of  1731,  the  clause  of  gift  "causa  mortis"  validated  the  will  of  the  son 
of  the  family. 

3  "L.  d.  Dr.,"  116;  Boutaric,  I,  45;  Laurihre,  on  Loysel,  667;  Order  of  1639; 
Ricard,  "Don.,"  II,  37;  "Paris,"  292;  according  to  Art.  277,  gifts  made  while 
"in  extremis"  were  only  looked  upon  as  being  of  the  same  validity  as  gifts 
"causa  mortis";  the  "Ord."  of  February,  1731,  Art.  4,  even  refused  to  give 
them  tliis  effect. 

4  Merlin,  "R6p.,"  see  "Don.  k  Cause  de  Mort";  Masuer,  24,  23. 

^  Cf.  gift  of  property  to  be  acquired  in  the  future,  gifts  between  spouses: 
See  "  Code  Civ.  interm." 


715 


§  508]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 


Topic  6.     Covenants  Relating  to  Inheritance 


508.  Covenants  upon  Future  Suc- 

cession. 

509.  Renunciationa     of    a    Future 

Inheritan'>'>. 

510.  Appointment  by  Contract. 


§511.  The  Abdication  of  Possessions. 
§  512.  Partition  by  Ascendants. 
§  513.  Substitutions    in    Trust    (En- 
tails). 


§  508.  Covenants  upon  Future  Succession/  which  were  for- 
bidden at  Rome  as  being  immoral,  because,  it  was  said,  they  might 
arouse  criminal  hopes  and  contain  a  "votum  mortis,"  ^  were,  on 
the  other  hand,  frequent  in  our  feudal  and  monarchic  society. 
They  were  derived  from  the  old  usage  of  disposing  of  one's  in- 
heritance by  contract.  But  we  have  seen  that  a  reaction  against 
this  practice  had  taken  place  in  the  Roman  spirit,  resulting  in  the 
dividing  of  gifts  into  two  groups,  —  wills,  and  gifts  "inter  vivos." 
One  of  the  results  of  this  reaction  was  to  isolate  covenants  re- 
lating to  inheritance  and  to  restrict  them  to  marriage  contracts, 
where  the  feudal  and  family  spirit  made  use  of  them  until  the  very 
end,  in  order  to  resist  the  modern  tendencies;  in  that  field  they 
have  been  preserved  even  to  our  day  in  the  interest  of  marriage. 
In  these  covenants,  of  which  the  principal  ones  are  the  renunciation 
of  a  future  inheritance,  stipulations  relating  to  personal  belongings 
in  the  inheritance,^  and  appointments  by  contract,  we  will  include 
abdication  of  possessions  and  entails,  although  these  latter  did  not 
necessarily  play  a  part  in  contracts  of  marriage. 

§  509.  Renunciations  of  a  Future  Inheritance,^  which  were 
proscribed  by  the  Revolutionary  laws,^  contributed  in  our  old 

1  Pothier,  II,  62;  ed.  B.;  Dumoxilin,  "Cons.,"  15,  2,  3.  Gradual  appearance 
under  the  Lower  Empire:  "Cod.  Just.,"  2,  3,  30  (the  consent  of  the  deceased 
validates  the  contract  already  entered  into  between  his  heir  and  a  third  party 
and  relating  to  his  succession). 

2  P.  de  Fontaines,  15,  7;  Masuer,  28,  9;  G.  Coquille,  on  "Niv.,"  27,  12; 
Favre,  "De  Err.  pragm.,"  38,  6,  6;  "  Ord."  of  1731, 13.  —  C/.  "Dec.  Cap.  Tol.," 
453. 

'  It  is  stipulated  that  certain  possessions  which  should  have  been  owned  in 
common  shall  belong  to  one  or  the  other  of  the  spouses  and  his  or  her  heirs 
(fictitious  personal  belongings) :  see  Ferriere. 

*  "N.  R.  H.,"  1888,  348,  320;  Lebrun,  "Succ,"  3,  8,  1;  Pothier,  "Sue," 
VIII,  30,  ed.  B.;  Gide,  "Cond.  des  Femmes,"  394;  Huber,  IV,  666;  Stobhe,  V, 
296,  315,  n.  24  (bibl.).  On  the  German  law  of  princes,  of.  especially  Schulze, 
"Erb.  und  Familienr.,"  1871;  Heffter,  "Sonderr.  d.  Hauser  Deutschl.,"  1871; 
Pappermann,  "De  Ordine  quo  Femirue,"  etc.,  1868. 

5  Law  of  the  5th  Brum.,  year  II,  Art.  14;  Law  of  the  17th  Niv.,  year  11^ 
Art.  11.    The  Civil  Code  has  maintained  this  prohibition  in  Art.  791.    Out- 

716 


Topic  6]  COVENANTS   RELATING   TO   INHERITANCE  [§  509 

society,  like  the  right  of  primogeniture  and  entails,  to  the  pres- 
ervation of  the  inheritance  of  old  families;  in  fact,  they  only 
took  place  ordinarily  for  the  benefit  of  the  eldest  son.^  In 
days  when  emancipation  and  marriage  ceased  to  be  of  themselves 
causes  of  exclusion  from  a  succession,  the  spirit  of  the  family 
still  had  enough  strength  to  obtain  from  younger  sons  or  daugh- 
ters renunciations  to  the  rights  which  they  had  just  acquired,  and 
which  were  contrary  to  the  old  Custom.^  Outside  of  contracts  of 
marriage  and  contracts  made  by  other  heirs,  they  were  rare, 
or  even  forbidden.^  They  were  made  in  the  form  of  unilateral 
declarations  in  the  presence  of  the  assembled  relatives;  ^  the  cus- 
tom of  fortifying  them  by  means  of  an  oath  contributed  not  a 
little  towards  having  them  upheld  as  being  valid,  in  spite  of 
the  Roman  rules."''  The  consequence  of  this  renunciation  varied; 
it  was  made  subordinate  to  the  payment  of  a  marriage  portion 
or  a  promised  grant  to  a  younger  branch;  it  was  void  in  the 
case  of  the  predecease  of  the  relative  or  the  line  for  the  benefit 
of  which  it  had  taken  place,^  or,  again,  if  the  person  renouncing 

side  of  reasons  of  a  political  nature  which  have  been  responsible  for  their  con- 
demnation we  can  say  that  they  are  very  dangerous;  it  is  very  seldom  that 
they  are  made  freely  and  with  full  knowledge. 

1  Sometimes  for  the  benefit  of  brothers  or  agnates.  They  affected  the 
succession  of  the  father  or  the  mother,  sometimes  also  that  of  the  brothers. 
They  were  generally  contained  in  the  marriage  contract  of  the  party  making 
the  renunciation,  but  if  he  were  of  age  they  also  formed  a  part  of  the  marriage 
contract  of  the  eldest  son  or  of  the  brothers  and  sisters. 

2  Stobbe,  V,  97;  Bereng.  Fernand,  "Op.,"  527 ; Boucheul,  p.  336;  Arf/ow,  III,  17. 
'  Contra,  German  law.     With  the  consent  of  the  deceased  the  heir  may 

grant  his  hereditary  rights  to  a  third  party:  Pothier,  III,  206  (sale  of  rights  of 
succession).  Cf.  "Schwabensp.,"  35;  Stobbe,  V,  296  (renunciation  at  law  with 
certain  symbols);  "Sachsensp.,"  I,  13;  Huber,  IV,  664,  667. 

The  Covenant  "de  Hereditate  tertii  viventis "  is  a  contract  between  the 
heir  and  a  grantee  carrying  with  it  for  the  heir  the  obligation  to  transfer  his 
rjghts  of  succession  at  the  death  of  his  ancestor;  thus  he  must  accept  this 
succession;  however,  if  the  grantee  is  an  heir  of  subsequent  degree,  the  heir 
granting  to  him  can  renounce  the  succession  so  that  the  grantee  may  benefit 
by  the  renunciation.  The  daughter  who  has  a  marriage  portion  and  who  re- 
nounces the  succession  of  her  relatives  can  neither  accept  nor  renounce  after 
they  are  dead;  the  succession  does  not  open  for  her  benefit.  CJ.,  however, 
practical  difficulties  in  Boucheul,  loc.  cit. 

*  Without  the  beneficiary's  having  to  accept  (any  more  than  at  the  time 
when  daughters,  younger  children,  or  the  emancipated  children  were  excluded 
from  the  succession).  The  German  practice,  which  generalized  renunciations 
of  succession,  made  of  them  a  contract  between  the  deceased  and  the  heir 
presumptive.  Whether  it  be  a  contract  or  a  declaration,  it  is  effective  as 
against  third  parties. 

5  Sexte,  1,  18,  2.    Practical  difficulties:  Stobbe,  V,  307. 

*  Controversy  between  the  "Erbtochter,"  descendant  of  the  last  male 
agnate,  and  the  heirs  of  the  man  making  the  renunciation  ("  Regredienter- 
ben") :  Stobbe,  ibid.  CJ.  the  clause,  "Bis  auf  ledigen  Anfall."  Boucheul,  p.  353: 
renunciation  with  a  reservation  of  the  royal  escheat  (the  sister  succeeds  to 

717 


§  509]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

was  recalled  to  the  succession  by  the  deceased.^  Did  the  renun- 
ciation bind  the  descendants  and  the  heirs  of  the  person  renoun- 
cing? This  point  was  disputed,"  but  the  daughter  who  had  a 
marriage  portion  and  who  renounced  did  it  ordinarily  as  affect- 
ing herself  and  her  descendants;  it  was  implied  if  no  express 
declaration  were  made.^ 

§  510.  Appointment  by  Contract,  or  appointment  of  an  heir  by 
contract,  conflicts  at  one  and  the  same  time  with  the  Customary 
rule,  "The  appointment  of  an  heir  is  not  valid,"  and  with  the 
principles  of  the  written  law  according  to  which  the  appoint- 
ment of  an  heir  can  only  be  contained  in  a  will,  that  is  to  say,  in  a 
deed  which  is  revocable.*  The  "adfatimus"  was  scarcely  any- 
thing else  in  the  law  of  the  Ripuarians,^  and  the  formulae  desig- 
nated a  recall  to  succession  by  that  name.^    During  the  feudal 

her  brother  in  the  interest  which  she  has  renounced  in  the  inheritance  of 
her  father  should  he  die  without  children,  and  she  also  receives  a  collateral 
succession  in  which  the  paternal  inheritance  plays  a  part). 

1  The  Recalling  to  Succession,  which  could  be  carried  out  by  will  or  by 
contract,  could  always  be  revoked  unless  it  had  been  made  in  a  marriage  con- 
tract (cf.  appointment  by  contract).  This  does  not  assume  the  consent  of  the 
eldest  son  or  of  the  brothers  who  have  an  interest.  Its  effect  is  to  restore  to  the 
person  renouncing,  his  rights  of  succession  upon  intestacy;  however,  there 
were  many  who  were  only  willing  to  consider  this  as  a  legacy:  Loysel,  310,  341. 

2  Cf.  the  Romanists,  Balde,  Bartole,  cited  by  Goden,  "Consil.,"  no.  97. 

^  Cf.  the  Sahc  Law,  t.  I.  In  the  same  way  appointment  by  contract,  which 
is  the  counterpart  of  a  renunciation  to  future  inheritance,  benefits  the  appointee 
and  his  unborn  children. 

4  Texts:  Lauriere,  I,  24,  etc.  (in  1044);  D.  Vaissette,  VIII,  385  (in  1185); 
"Anjou,"  ed.  B.-B.,  62;  Masuer,  32,  6;  "Bourb.,"  219;  "Niv.,"  27,  12; 
"Poitou,"  216;  "Auvergne,"  15;  "Marche,"  248,  etc.;  Loysel,  308  et  seq.; 
Lamoignon,  39,  2;  Guyot,  "Sect.,"  1;  "Ord."  of  1560,  59;  of  Feb.,  1566,  57; 
of  1731,  17;  of  1747,  12,  14;  Auffroy,  402;  "Berry,"  8,  5. 

s  Uncertainties  as  to  the  origin  and  the  date  of  the  appointment  by  con- 
tract: Beseler,  II,  174;  Stobbe,  V,  190.  Cf.  the  old  opinions:  1st.  Roman  origin. 
The  "Novella,"  19,  of  Leo  the  Philosopher  (which  was  onlv  known  in  France 
through  the  translation  of  Agylseus  in  1560).  Cf.  "Cod.  Th^od.,"  11,  24,  2; 
"Cod.  Just.,"  2,  3,  15,  19,  30;  Dig.,  39,  5,  29,  2;  45,  1,  61.  — L.  19,  "Cod. 
Just.,"  "de  pactis"  (military  will,  and  thus  a  privileged  one).  Basnage, 
Lauriere,  Merlin.  —  2d.  Feudal  origin.  "L.  Feud.,"  II,  29  (morganatic  mar- 
riage); Lebrun,  "Succ,"  3,  2,  3,  etc.  Cf.  Montesquieu,  "Espr.  des  Lois,"  31, 
34  (at  first  only  nobles);  Laboulaye,  "Cond.  des  Femmes,"  p.  391.  —  Decius, 
"Cons.,"  225:  "Sub  tali  pacto  nobiles  inveniunt  nobiliores  per  quos  nobil- 
itas  crescit";  Baluze,  "Hist,  de  la  Maison  d'Auv."  (Act  of  1425);  Automne, 
"Conf.,  s.  1.  15  'C.  de  pactis.'  "  — 3d.  Germanic  origin.  Cf.  the  text.  — Under 
its  final  form  the  appointment  by  contract  dates  from  the  feudal  and  custom- 
ary period;  but  the  law  of  that  period  especially  made  use  of  the  Germanic 
precedents. 

6  "Aoste,"  III,  20;  Fertile,  IV,  10.  Let  us  liken  mutual  gifts  between 
spouses  to  them:  Huber,  IV,  ^QZ;  Stobbe,  I,  192;  the  " Erbverbrliderungen "  of 
the  higher  German  nobility  (an  alliance  between  two  families;  if  one  dies  out 
the  other  succeeds  to  it),  ib.,  V,  194,  277  et  seq.  As  to  the  " Einkindschaft," 
cf.  Stobbe,  II,  247;  Heusler,  I,  234;  Ferrihre,  see  "Rappel"  (bibl.);  Boucheul, 
p.  271. 

718 


Topic  6]  COVENANTS   RELATING   TO   INHERITANCE  [§  510 

period  there  appeared  clauses  which  were  related  to  the  right 
of  primogeniture:  "Declaration  to  proclaim  an  eldest  son  and 
principal  heir,"  ^  "promise  of  equality."^  It  was  especially  for 
the  benefit  of  noble  families,  and  to  assure  what  was  due  to  a 
fief,  that  the  appointment  by  contract  was  brought  about.^  Dur- 
ing the  decadence  of  the  nobility  it  was  justified  less  because  of 
its  feudal  aspect  than  because  of  its  matrimonial  aspect;  it  seemed 
to  be  a  happy  reconciliation  of  two  contrary  interests,  that  of  the 
grantor  who  did  not  expect  actually  to  deprive  himself,  and  that 
of  the  beneficiary  for  whom,  in  order  that  he  might  found  a  new 
family,  the  frail  hopes  which  the  will  holds  out  vrere  not  sufficient. 
The  Revolution  forbade  this  appointment  because  of  its  aristo- 
cratic and  feudal  character.^  Even  though  the  Civil  Code  re- 
established it.  Art.  1082,  it  did  not  dare  call  it  by  its  former  name; 
the  former  appointment  by  contract  has  lost  this  suspicious  desig- 
nation and  is  called  a  gift  of  future  possessions. 

In  the  very  old  law  the  appointment  by  contract  was  effected 
by  means  of  delivery.^  Also,  it  was  irrevocable,  and  at  the 
death  of  the  person  making  the  appointment  the  donee  found 
himself  in  possession  of  the  latter's  property  without  having  the 
power  of  renouncing  it,  because  he  had  accepted  it  beforehand. 
The  burden  of  debts  did  not  pass  to  him  unless  there  was  an  ex- 
press clause  to  this  effect  (cf.  testamentary  executors).^  According 

1  Lauribre,  I,  no.  30;  V,  111;  Ricard,  1064;  Argou,  III,  10. 

2  There  are  certain  differences  between  the  appointment  of  an  heir  prop- 
erly so  called  and  its  variations:  (a)  recalling  to  succession,  see  note  1,  p.  718;  (b) 
a  declaration  of  the  eldest  son  which  guarantees  him  his  hereditary  portion  of 
the  present  possessions  (and  not  merely  liis  legal  share) :  this  does  not  prevent 
the  property  from  being  disposed  of  for  a  consideration:  Loysel,  309;  (c) 
promise  of  equahty,  —  that  is  to  say,  not  to  favor  any  of  his  children  to  the 
detriment  of  the  others,  which,  however,  allows  of  gifts  for  the  benefit  of 
strangers:  "Nov.,"  19,  of  Leo;  Lebrun,  3,  2,  12;  Coquille,  on  "Niv.,"  12; 
Ferriere,  on  "Paris,"  318;  Boucheul,  5,  no.  28. 

'  Cf.  appointment  of  an  heir  charged  with  taking  the  name  and  bearing  the 
arms  of  the  grantor.  Letters  of  the  king  are  necessary  in  order  to  change 
one's  name,  but  not  to  join  one's  name  to  that  of  the  grantor. 

*  Law  of  March  7,  1793;  5th  Brum.,  year  II;  17th  Niv.,  year  II;  22d  Vent., 
year  II;  re-enacted  on  the  18th  Pluv.,  year  V;  4th  Germ.,  year  VII;  "Code 
civil  interm.,"  see  Table;  Aron,  "N.  R.  H.,"  1901,  448  et  seq.  Cf.  Prussian 
Code,  1,  12,  §  617. 

6  Dronke,  "Cod.  Fuld.,"  115-119;  c/.  104;  "Schwabenspiegel,"  22;  Dig.  X, 
2,  13,  9;  Heusler,  II,  637;  Fertile,  IV,  8;  Stobbe,  V,  178  ("Salmann"),  180,  181, 
189  ("Auflassung,"  intervention  of  the  public  authorities). 

*  Cf.  transmission  of  hereditary  debts.  If  it  was  difficult  to  admit  that 
"universal"  successors  were  held  for  the  debts  of  their  ancestors,  it  was  all  the 
more  difficult  to  admit  it  for  successors  by  some  special  right,  such  as  donees. 
At  the  most,  the  latter  could  only  be  required  to  pay  present  debts  (existing 
at  the  time  of  the  gift)  if  they  were  bound  to  do  so  by  a  clause  in  the  deed, 
either  expressed  or  implied  (that  is  to  say,  resulting  from  the  general  character 

719 


§  510]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

to  the  final  theory,  which  was  rather  unsettled  on  certain  points, 
the  appointment  by  contract  is  defined  as  "an  irrevocable  gift 
of  succession,"  ^  and  it  is  made  by  means  of  a  clause  in 
the  contract  of  marriage,^  for  the  benefit  of  the  spouses  alone, 
or  of  one  of  them,^  and  of  the  children  who  may  be  born  of  the 
marriage.'* 

of  the  gift).  The  man  appointed  by  contract  seems  to  have  had  from  the  very 
outset,  from  the  point  of  view  of  debts,  the  same  position  as  the  heir  at  law. 
Cy.  the  Lombard  "tliinx."  After  that  he  finally  came  to  be  considered  as 
being  held  "ultra  vires."  Cf.  Loyseau,  " Deguerpiss.,"  I,  11;  Ricard,  no. 
1522;  Duplessis,  "Don.,"  s.  6;  Lebrun,  "Succ,"  3,  2,  41;  Lauriere,  I,  244; 
Pothier,  "Succ,"  5,  2,  3;  Ferriere,  on  "Paris,"  334;  Stobbe,  V,  184.  Moreover, 
neither  the  gift  of  present  possessions  nor  the  gift  of  future  possessions  had 
the  effect  of  releasing  the  donor;  he  remained  open  to  the  prosecution  of 
his  creditors  and  could  be  subjected  to  personal  arrest.  —  Cf.  as  to  the 
modern  German  theory  of  transfer  of  debts,  Delbriick,  "Uebern.  fremd. 
Schuld.,"  1853;  Saleilles,  "Th.  de  I'Oblig.,"  1890;  Gnudemet,  "These,"  1898. 

1  Wholly  or  partly,  but  by  "universal"  right.  "Post  obitum"  gifts  also  fre- 
quently had  this  characteristic;  they  affected  a  domain  or  a  village  with  its 
farmers,  its  rights  of  enjoyment,  and  its  chapel,  or  all  the  possessions  present 
and  future.  Cf.,  however,  Beseler,  I,  161,  175;  Loersch  and  Schr.,  "Urk.," 
no.  63  (57);  Hubner,  "Don.  post  obit."  The  German  law  contrasts  the  "Erb- 
vertrag"  (appointment  of  an  heir)  with  the  "Vermachtnissvertrag"  (appoint- 
ment of  a  legatee) :  Huber,  op.  cit.;  Stobbe,  V,  298. 

2  Formerly  it  was  possible  outside  of  a  marriage  contract,  —  for  example, 
"Auvergne,"  15,  1,  in  the  charter  of  an  association,  Benedicti,  "in  cap.  Rayn.," 
see  "Duas  hab.,"  200.  Thus  is  to  be  accounted  for  the  power  of  bringing  in 
a  third  party  —  for  example,  a  brother  of  the  appointee  —  to  share  in  the 
advantages  arising  from  the  appointment:  Stobbe,  V,  277.  (The  German  law 
also  admits  of  them  outside  of  contracts  of  marriage.)  Cf.  P.  de  Fontaines, 
15,  7;  Masuer,  32,  13;  28,  9;  Bugnyon,  "De  leg.  abr.,"  I,  226. 

^  Not  only  the  father  and  mother  (or  one  of  them)  could  appoint  their 
children  when  they  married  them,  but  collaterals  and  third  parties  could  also 
do  it.  Gifts  made  by  contract  of  marriage  by  one  of  the  future  spouses  to  the 
other,  whether  mutual  or  not,  affecting  a  few  possessions  or  all,  or  a  portion 
of  their  present  and  future  inheritance,  are  valid  (because  there  is  no  suspicion 
of  compulsion  or  of  undue  influence),  must  be  registered  (just  like  mutual 
gifts  between  spouses  made  during  the  marriage)  and  cannot  be  reduced 
to  one-fifth  of  the  personal  belongings.  Cf.  post,  "Reservation,"  "Marriage 
Contract." 

*  If  it  were  made  at  the  time  of  the  marriage,  the  appointment  should 
naturally  benefit  the  cliildren  that  might  be  born  from  the  marriage.  This 
is  what  happened  when  the  spouses  or  one  of  them  had  received  the  benefit 
of  the  appointment  during  their  lifetime.  But  if  the  appointee  should  die  before 
the  person  making  the  appointment,  would  the  children  of  the  former  take 
the  succession  in  his  stead  as  soon  as  it  opened?  Cf.  as  to  this.  Topic  4, 
§  499,  of  this  chapter  (lapsing  in  this  case  if  there  were  no  children).  An  ex- 
pressed clause  must  have  been  necessary  first  of  all;  "Et.  de  St.  Louis,"  I, 
119:  "  I  give  to  you  two  and  toyour  heirs  who  shall  issue  from  you  two."  After- 
wards it  came  to  be  implied.  Difficulties  arose  as  to  its  nature  and  its  conse- 
quences: a  common  trust-entail  according  to  the  general  opinion;  cf.  direct 
transfer,  entail  in  trust  (which  could  be  expressed).  The  Romanists  im- 
plied astipulation  made  by  the  notary  for  the  benefit  of  the  unborn  child: 
Boerius,  "Decis.,"  172;  Gui  Pape,  67.  To  the  contrary:  Ordinance  of  Villers- 
Cotterets,  1539,  133;  of  Feb.,  1731,  5;  Louet,  "D.,"  51;  Ed.  Lambert,  "Stipul. 
pour  Autrui,"  1893,  §  165.  The  Ordinance  of  1735,  49,  decides  that  the  heir 
appointed  by  vnll  should  be  conceived  at  the  time  of  the  death  of  the  testator, 
but  does  not  prohibit  special  legacies  for  the  benefit  of  those  not  conceived  at 

720 


Topic  C]  COVENANTS   RELATING   TO   INHERITANCE  [§  olO 

Our  old  authors  set  their  wits  to  work  without  much  success 
in  trying  to  make  this  sort  of  appointment  fit  within  the  classical 
terms;  it  was  a  gift  "inter  vivos"  for  some  ^  and  "causa  mortis" 
for  others,-  a  double  gift  of  possessions  present  and  future,  accord- 
ing to  some  of  them,  an  amphibious  act,  a  contract  and  a  will  at 
one  and  the  same  time,  says  Furgole,  giving  it  up  in  despair.  Not 
one  of  these  conceptions  agrees  with  the  effects  which  it  was  given 
in  practice.  Its  object  was  to  guarantee  the  title  of  heir  to  the 
beneficiary.  It  is  irrevocable  because  it  arises  from  a  contract 
upon  the  faith  of  which  the  marriage  has  been  carried  out,  and 
which  is  "the  statute  of  two  famihes."  Though  the  title  of  heir 
cannot  be  taken  away  from  the  person  who  has  received  it,  any 
more  by  will  than  by  any  other  deed,^  it  is  otherwise  with  regard 
to  the  emolument  attached  to  this  title.  The  person  making  the 
appointment  reserves  besides  the  enjoyment  of  his  possessions  the 
right  to  dispose  of  them  privately  (sales,  debts,  and  even  small 
gifts) ,^  which  caused  Lauriere  to  say,  "Of  all  the  snares  which  one 
can  set  by  means  of  a  contract  of  marriage  (and  they  are  numer- 
ous) there  is  none  to  be  feared  more  than  appointments  by  con- 
tract." Against  this  danger  there  was  no  protection  excepting 
through  moral  guarantees,  the  honesty  of  the  one  making  the 
appointment,  the  natural  attachment  which  the  latter  felt  for 
his  possessions,  and  the  right  of  recovery  in  case  there  were 
fraud.  During  the  lifetime  of  the  grantor  the  person  appointed 
had  no  rights.  At  the  death  of  the  former  the  latter  was  "ipso 
jure"  in  possession  of  the  property  which  made  up  the  inheritance, 
just  as  an  heir  at  law  would  have  been,  and  was  held  for  the  debts 
"  ultra  vires, "  except  that  he  was  able  to  renounce,  or  even  to  ac- 
cept by  inventory.*"  In  the  countries  of  written  law,  where  the  ap- 
pointment by  contract  was  likened  to  a  gift  of  present  and  future 

that  time.     On  the  condition,  "si  nascatur,"  cf.  Favre,  "De  Error  pragmat.," 
33,  8,  IS. 

1  Lebrun,  III,  2,  6;  Pothier,  I,  534;  Bourjon,  V,  3.  Consequences:  (a) 
registration  (controversy);  (6)  prohibition  of  alienation  for  a  consideration; 
the  "Ord."  of  1731,  12,  dispenses  with  an  expressed  acceptance;  and,  19,  20, 
witli  registration  (at  least  in  the  direct  line);  (c)  it  is  not  subject  to  the  reserva- 
tion; ((/)  and  it  can  be  disposed  of  (alien,  person  in  mortmain,  bastard,  son 
of  the  family,  etc.). 

2  Ricard,  no.  971;  Lauribre,  c.  2.  Renusson,  "Propres,"  III,  2,  33,  cites 
for  this  Bncquet,  whom  he  disputes.  The  appointor  gives  nothing  during  his 
Ufetime.  The  gift  lapses  if  the  appointee  dies  before  the  appointor.  —  Cf. 
"post  obitum"  gifts  (where  the  donor  could  not  survive  the  donee,  ordinarily 
a  legal  person). 

3  Boerius,  "Dec,"  204.    Ingratitude?    Birth  of  children?    "Petrus,"  I,  7. 

*  Reservation,  cf.  Stobbe,  V.  177,  191. 

*  He  should  have  been  treated  rather  as  a  testamentary  heir. 

721 


§  510]  INTESTATE  SUCCESSION,  GILiTUITOUS  CONVEYANCES  [Chap.  IV 

possessions,^  it  was  admitted  that  the  person  appointed  could 
escape  from  debts  incurred  after  the  contract  of  marriage  by 
renouncing  any  possessions  which  had  been  acquired  after  that 
time.  This  appointment  was  also  held  as  being  absolutely 
irrevocable,  that  is  to  say,  the  person  making  the  appointment 
had  no  right  to  dispose  of  his  present  possessions  even  for  a 
consideration. 

§  511.  The  Abdication  of  Possessions  is  not  connected  with  the 
Roman  will  "inter  liberos,"  but  rather  with  barbarian  institutions. 
Among  the  Burgundians  the  children  have  a  right  during  the  life- 
time of  the  father  to  a  portion  of  the  family  community  belong- 
ings; the  father  cannot  alienate  anything  without  having  made  a 
partition  and  conferred  their  shares  upon  them.^  With  greater 
reason  general  usage  ^  authorizes  parents  who  have  become  old,  or 
have  been  affected  by  a  permanent  infirmity,^  and  who  are  conse- 
quently incapable  of  administering  their  patrimony,  to  abdicate 
their  position  of  head  of  the  family,  like  a  functionary  who  retires, 
in  order  to  give  the  position  to  their  descendants,^  —  that  is  to 
say,  to  people  who  are  younger  and  more  fit;  their  succession 
vested  by  way  of  anticipation^   ("to  resign  one's  activity,"  "to 

'  The  cumulative  gift  of  present  and  future  possessions  was  looked  upon  in 
countries  of  wTitten  law  as  containing  two  gifts  placed  together,  —  one  of 
present  possessions  (wliich  gave  the  immediate  seisin),  the  other  of  future 
possessions,  which  had  the  same  effect  as  an  appointment  by  contract,  be- 
cause one  might  accept  or  refuse  it,  etc.:  Henrys,  I,  4,  q.  183;  Furgole,  on 
Ordinance  of  1731,  Art.  17.  In  countries  of  Customs  it  was  not  split  up;  there 
was  only  seen  in  it  one  gift,  conferring  upon  the  donee  a  right  of  option  which 
went  into  effect  at  the  death  of  the  donor;  he  could  be  satisfied  with  the  present 
possessions  at  the  time  of  the  gift  (and  in  this  case  he  did  not  pay  debts  ac- 
cruing afterwards),  or  take  the  entire  gift  in  a  mass,  and,  assuming  this,  the 
gift  had  the  effect  of  an  appointment  by  contract  in  that  which  concerned 
present  possessions  as  well  as  in  that  which  concerned  future  possessions: 
Pothier,  I,  357;  "Ord."  of  1731,  17. 

2  "Burg.,"  1;  24,  5;  51;  74,  3;  78,  1  (as  to  the  history  of  this  law,  cf.  Zeumer, 
"N.  Arch.  f.  alt.  D.  G.,"  25,  258);  Schroeder,  p.  27S;  Ficker,  "Erbenf.,"  I, 
271;  II,  123,  358;  III,  380;  V,  104;  V,  185;  Viollet,  818.  Cf.  emancipation, 
reservation:  "Sachsensp.,"  I,  14.  "Watschar,"  "  Swascara,"  meaning  "propria 
portio"  (portion  which  had  been  released  by  this  partition);  Heusler,  I,  241; 
Amira,  122.  —  Ancient  custom  of  pillaging  the  possessions  left  by  the  dead: 
Post,  II,  173;  "Festg.  f.  Dernburg"  (Berlin),  47. 

3  "Form  Andec,"  57,  34;  Marculfe,  II,  11;  F.  Merkel,  24;  Rozihre,  "Form.," 
no.  166  et  seq.;  D.  Vaissette,  V.,  no.  102.  In  Friesland,  "evelganc"  ("iibel," 
sick  man);  Noordeweir,  "Regtsoudheden,"  255;  Grimtn,  "R.  A.,"  486,  563. 

*  Primitive  societies  in  which  the  old  men  are  allowed  to  die  of  hunger, 
where  they  commit  suicide  or  their  children  kill  them  and  eat  them  from  filial 
piety:  Deniker,  "Races,"  p.  286;  Grimm,  loc.  cit.;  Post,  II,  172. 

6  Rarely  to  others.  Interest  of  the  family,  and  even  of  the  lord :  "  L.  Feud.," 
II,  14. 

°  Other  systems  as  to  the  nature  of  the  resignation.  Sale,  innominate  con- 
tract (because  of  the  charges);  gift  "sub  modo,"  gift  "mortis  causa";  "divisio 

722 


Topic  6]  COVEN.'USrTS   RELATING   TO   INHERITANCE  [§  511 

make  oneself  dead").  Those  who  acquired  the  inheritance  bound 
themselves  in  return  to  furnish  those  resigning  it  with  sustenance 
(provisions,  necessaries),  with  care  and  a  decent  burial.^ 

In  the  earliest  times  the  abdication  of  possessions  required  a 
delivery  of  the  entire  inheritance;^  it  meant  actual  and  irrevocable 
relinquishment,^  or,  at  least,  it  was  only  subject  to  revocation  if 
the  beneficiaries  did  not  fulfill  the  duties  which  were  incumbent 
upon  them  (for  example,  if  they  refused  to  feed  and  support  their 
parent).  In  the  later  law  the  practice  becomes  altered  owing  to 
various  causes :  lack  of  cohesion  in  the  family,  possibility  of  acting 
through  a  representative,  and  simplification  of  delivery.  The 
individualistic  idea  comes  to  light  in  the  maxim,  "The  father 
does  not  undress  before  going  to  bed,"  and  results  in  new  com- 
binations which  sometimes  replace  the  abdication  of  possessions 
(for  example,  a  partnership  between  the  parents  and  the  children) 
and  sometimes  limit  its  bearing  (reserve  of  a  portion  of  the  pos- 
sessions). In  the  majority  of  the  French  Customs  general  abdi- 
cation persisted,  but  it  became  revocable.  Although  it  was  based 
upon  a  contract,*  it  was  treated  like  a  will  (without,  however, 
going  so  far  as  to  require  the  same  forms).  The  authority  of 
the  father,  the  respect  which  was  due  to  parents,  profited  thereby, 
but  at  the  price  of  great  disadvantages  when  the  possessions  had 
passed  into  the  hands  of  third  parties;  for  the  result  of  revoca- 
tion was  to  deprive  purchasers,  and  it  might  take  place  as  a  con- 
sequence of  a  fraudulent  understanding  between  parents  and 
children.  An  attempt  was  made  at  least  to  protect  the  interest 
of  third  parties  by  means  of  certain  provisions  of  publicity.^ 

According  to  the  earliest  ideas,  abdication  of  possessions  was 
a  sort  of  deprivation  of  civil  rights,  a  sort  of  civil  death;  the 
ascendant  who  lived  with  his  children  under  the  same  roof  and 

parentum  inter  liberos":  Stobbe,  V,  400.  Thus  differing  from  covenants  upon 
future  succession,  everything  takes  place  "inter  vivos"  and  the  consequences 
of  the  transaction  are  immediate. 

1  Lodging,  board,  "Allentheil,"  "Leibzucht,"  etc.  As  to  the  nature  of  these 
rights,  cf.  Stobbe,  V,  408;  Lalou,  "These,"  1900;  Heusler,  II,  534. 

^  The  giving  up  takes  place  as  a  general  right.  Cf.,  however,  "  Bret.,  N.  C," 
537. 

*  Thus  in  Brittany  and  some  other  customs:  D'ArgentrS,  266,  c.  4. 

*  Which  the  heirs  were  free  to  accept.  The  partition  among  ascendants 
was  not  a  contract. 

^  The  resignation  often  took  place  in  order  to  avoid  the  payment  of  the 
tallage,  or,  at  least^  to  have  the  one  making  it  put  at  the  end  of  the  list  among 
the  sick;  the  conditions  requisite  for  tliis  were  a  notarial  deed  ratified  by  the 
representatives,  published  at  the  time  of  the  sermon  or  at  the  close  of  the  church 
service,  notice  being  given  to  the  collectors.  Controversy  as  to  the  registration : 
Boullenois,  "Q.,"  10. 

723 


§  511]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYAJSTES  [Chap.  IV 

who  was  reduced  to  an  inferior  station  could  not  acquire  any 
new  possessions  nor  contract  any  new  debts.  According  to  the 
law  of  the  second  period,  he  loses  his  possessions  but  keeps  his 
capacity ;  thus  he  can  have  possessions  to  come,  and  future  debts 
which  call  for  a  settlement  at  his  death.  Practice  was  doubtful. 
Many  authorized  the  descendants  to  keep  the  present  posses- 
sions at  the  same  time  that  they  renounced  future  possessions, 
(that  is  to  say,  those  which  had  been  acquired  after  the  abdica- 
tion).^ As  far  as  debts  are  concerned,  the  descendants  were  held 
("intra  vires")  ^  for  the  debts  in  the  present,  but  not  for  future 
debts  in  the  case  where  they  renounced.^  There  was  nothing  to 
prevent  the  man  who  was  abdicating  his  possessions  from  pro- 
ceeding himself  to  make  partition  of  them  among  those  to  whom 
he  surrendered  them,  but  nothing  compelled  him  to  do  this;  in 
any  case  it  was  necessary  to  follow  the  same  rules  as  though 
partition  had  taken  place  after  his  death.  If  he  must  carry 
out  the  partition  of  his  property  ^  he  had  to  distribute  all  of  it 
among  all  his  heirs,^  in  conformity  with  the  Custom,^  and  this 
under  penalty  of  nullity.^ 

The  practice  of  abdication  of  possessions  was  not  abolished 
by  the  Revolutionary  laws;  but,  in  order  to  make  partition,  it 
was  necessary  to  act  in  conformity  with  the  new  regulation  with 

^  Vacant  succession:  Pothier,  op.  cit.;  Boullenois,  "Q.,"  11. 
2  Huber,  IV,  668  ("intra  vhes");  Stobbe,  V,  398. 
»  And  if  the  deed  of  resignation  has  been  registered. 

*  Cf.  P.  de  Fontaines,  34,  2;  Beaumanoir,  47,  11;  "Artois,"  36,  37;  Viollet, 
"Et.  de  St.  Louis,"  III,  3. 

*  Should  the  equahty  of  shares  exist  at  the  time  of  the  resignation,  or  at 
the  time  of  the  death?  Accidental  loss?  In  case  of  the  predecease  of  the  person 
to  whom  the  property  was  surrendered,  it  passed  to  his  children,  or,  if  he  had 
none,  to  his  fellow  heirs;  if  there  were  none,  it  returned  to  the  man  resigning  it. 

*  Germany:  conferring  of  the  patrimony  upon  the  "Ganerben,"  to  the 
"Anerbe,"  charged  with  furnishing  " Abfindungen "  to  his  brothers:  Heusler, 
loc.  cit.;  Stobbe,  V,  401.  In  France  the  right  of  primogeniture  is  a  clause  fre- 
quently met  with  in  the  partition  between  ascendants,  and  it  is  often  by  this 
means  that  it  is  introduced.  The  chronicler,  Dudon  de  Saint-Quentin,  IV, 
128,  tells  us  that  Richard  I,  Duke  of  Normandy,  being  at  the  point  of  death, 
in  996,  appointed  his  eldest  son  as  his  successor,  charging  him  that  he  give 
his  brothers  sufficient  for  them  to  live  in  an  honorable  manner.  In  later  law 
the  customary  rule  was  made  binding  upon  the  relatives:  "T.  A.  C,  Norm.," 
10,  2,  3.  Distinction  between  the  Customs  of  reference  legacies  and  those  of 
equality.  Bi-itz,  764:  inequaUty,  which  was  possible  by  the  advice  of  the  father 
and  mother  with  the  assistance  of  two  relatives. 

^  Already  in  the  old  law  we  observe  a  tendency  to  insist  that  each  heir 
should  have  a  share  in  kind  of  each  piece  of  property  in  the  succession,  which 
results  in  a  partition  that  is  mechanical  and  unintelligent  and  of  such  a  nature 
as  greatly  to  diminish  the  advantages  of  partition  among  ascendants:  Civil 
Code,  834.  Existing  judicial  law  has  still  further  exaggerated  this.  Cf. 
treatises  by  Regnier,  Barafort,  etc.  Glasson,  "R6f.  soc,"  1889,  209;  De 
Foville,  "Le  Morcellement,"  1885.  Theses:  Henru,  1895;  Caillet,  1900;  Megan, id. 

724 


Topic  6]  COVENANTS   RELATING   TO   INHERIT.\NCE  [§512 

regard  to  intestate  succession.  In  the  Civil  Code,  Art.  1075,  the 
name  of  abdication  of  possessions  has  disappeared,  but  the  in- 
stitution is  found  therein,  confused  with  partition  by  ascendants, 
to  which  its  revocable  character  had  made  it  similar.^ 

§  512.  Partition  by  Ascendants.^  —  The  partition  of  property 
made  by  parents  among  their  children  by  act  of  last  will  presented 
great  practical  advantages;  it  is  carried  out  without  expense;  the 
property  is  distributed  in  a  more  intelligent  way,  taking  into  ac- 
count the  fitness  of  each  one;  and,  finally,  quarrels  between 
brothers  are  avoided.  The  countries  of  written  law,^  and  even  the 
countries  of  Customs,*  borrowed  this  sort  of  gift  from  the  Roman 
law.^  Whence  the  name  "devises,"  often  given  to  wills,  because 
it  is  in  wills  that  they  are  found. ^  They  were  looked  upon  with 
favor  and  were  free  from  the  ordinary  formalities  which  were  at- 
tached to  these  acts;  it  was  sufficient  if  "  the  wishes  of  the  testa- 
tor were  certain  and  constant";  thus  in  countries  of  written  law  it 
was  permitted  as  an  exception  to  make  use  of  the  holographic  will 
in  such  cases  as  these.^  The  partition  could  be  revoked  by  the 
one  who  made  it,  just  as  every  testamentary  gift,^  at  least,  if  it 
did  not  form  part  of  a  contract  of  marriage.^  At  the  death  of 
the  ascendant  the  coparceners  took  the  property  as  heirs  at  law 

1  Practised  in  the  South,  although  contrary  to  the  rule:  "Nulla  viventis 
hereditas";  the  resigning  of  possessions  was  there  looked  upon:  (a)  as  a  gift 
"mortis  causa"  affecting  possessions  to  be  acquired  in  the  future;  (6)  as  a 
gift  "inter  vivos"  for  present  possessions  (and  in  tliis  case  it  is  irrevocable 
and  must  be  expressly  accepted  and  registered).  The  child  who  was  left  out 
would  only  have  a  right  to  his  legal  share,  for  the  written  law  allowed  of  the 
favoring  of  one  or  several  of  the  heirs. 

2  Furgole,  "Test.,"  8,  1,  141. 

'  "Brachyl.,"  II,  25;  "Liber  lustrum,  memor.,"  p.  172  et  seq. 

*  "Bret.,"  560;  "Bourb.,"  216;  "Poitou,"  219;  "Niv.,"  34,  17;  "Bourg.," 
7,  6,  etc.  Some  Customs  authorized  even  partitions  among  collaterals: 
"Amiens,"  94,  etc.;  Louet,  "P.,"  24. 

^  (A)  "Divisio  inter  liberos,"  permitted  first  of  all  only  to  the  father  be- 
cause of  the  "patria  potestas"  and  later  to  the  mother  and  the  ascendants: 
D.,  10,  2,  20,  3;  39,  5;  "Cod.  Th^od.,"  II,  24;  "Cod.  Just.,"  3,  28,  8;  3,  36,  21, 
26  ("Auth.  Si  modo");  "Nov.  Just.,"  18,  7,  107,  3.  The  descendants  did  not 
cease  to  be  heirs  at  law.  —  (B)  "Testamentum  inter  liberos":  "C.  J.,"  6,  23, 
21,  3;  "Nov.  Just.,"  107,  2.  Method  of  distribution  creating  testamentary 
heirs,  and  which  dispensed  with  the  formalities  required  for  wills.  Lebrun, 
"Succ,"  IV,  1,  8,  does  not  distinguish  between  the  "divisio"  and  the  will 
"inter  liberos";  there  is  a  distinction  within  the  meaning  of  the  Customary 
delivery;  at  the  time  when  the  appointment  of  an  heir  disappeared  these  two 
kinds  of  acts  became  confused. 

*  See  Ragueau;  cf.  Du  Cange,  see  "Divisa,"  "Ordinium";  "Fors  de  B^arn," 
ed.  Mazure,  p.  174:  "ordi";  Beaumanoir,  ed.  Salmon;  "Gloss.,"  see  "Devis," 
"Deviser." 

■>  Serves,  "Inst.,"  2,  10  (p.  219,  ed.  1771).    Cf.  Ordinance  of  1735,  17. 

8  Even  when  it  was  signed  by  the  coparceners. 

9  As,  moreover,  did  the  surrender  of  possessions. 

725 


§  512]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

(seisin,  obligations  "ultra  vires")-  In  countries  of  Customs  the 
partition  was  of  no  effect  unless  it  was  made  among  all  the 
children  and  unless  it  affected  all  the  property  which  the  parents 
possessed  at  that  time.-^  In  countries  of  written  law  it  was  not 
necessary  that  the  shares  should  be  equal,^  provided  that  the  law- 
ful share  had  not  been  affected  in  any  way.^ 

§  513.  Substitutions  in  Trust  ^  (Entails)  signify  a  gift  contained 
in  a  will  or  in  a  contract  by  which  the  donee  (or  "one  encum- 
bered") is  charged  with  keeping  the  property  which  is  trans- 
mitted to  him  and  giving  it  up  on  his  death  to  a  third  party  who 
is  "substituted  for  him"  (to  "the  one  called,"  "remainder-man"); 
the  latter  may  in  his  turn  be  charged  with  keeping  and  giving  up 
to  another,  and  so  on,  when  the  substitution  is  "graduated"  or 
has  several  degrees.^  Thus  the  grantor  regulates  the  disposal 
of  his  inheritance  during  one  or  more  generations;  he  disposes  of 
it  for  the  benefit  of  persons  who  will  not  have  come  into  being  at 
the  time  of  his  death;  he  creates  a  special  "ordo  successivus," 
which  differs  from  the  customary  or  legal  devolution.  These  en- 
tails were  most  often  made  from  male  to  male  by  way  of  pri- 
mogeniture. These  constitute  a  form  of  "majorat,"  that  is  to 
say,  giving  this  last  word  its  broad  meaning,  trusts  which  were 
perpetual  and  indivisible  in  favor  of  the  eldest  of  the  family, 
"major  natu."  They  strengthened  the  right  of  primogeniture 
by  keeping  the  family  patrimony  intact  in  spite  of  the  misfor- 
tunes, the  extravagance  or  the  lack  of  skill  of  its  head.  This  was 
one  of  the  masterpieces  of  the  old  organization  of  the  nobility;  it 
has  been  maintained  that  England  owes  to  it  a  part  of  her  great- 
ness; 6  in  our  day,  in  Germany,  its  suppression  or  its  preservation  is 
the  subject  of  a  lively  controversy. 

^  The  coparceners  divided  acquests  made  after  the  partition. 

2  In  countries  of  Customs  it  is  the  same  according  to  the  customs  of  the 
reference  legacy;  but  according  to  the  customs  of  equaUty  a  fairly  serious 
injury  (one-sixth  in  Brittany)  means  that  the  act  is  annulled. 

'  Right  to  the  substitute  of  the  legal  share. 

*  [As  Brissaud  points  out  in  note  6  on  "  English  Law,"  trust  has  been  rather 
badly  translated  by  "fideicommis."  The  converse  is  also  true  in  this  transla- 
tion, for  the  word  fideicommis"  has  here  been  rendered  "trust"  for  want  of 
a  better  term.  The  term  "entail"  has  here  been  used  as  the  nearest  equiva- 
lent of  the  ambiguous  "substitution."  —  Transl.] 

^  As  to  ordinary  entails  in  the  case  of  wards,  cf.  Argou,  loc.  cit.  They  are 
sometimes  called  direct  ones  as  contrasted  with  the  trust-entails  which  is 
called  an  indirect  one.  Substitution  in  grants  to  younger  branches  of  a  sov- 
ereign house,  cf.  Potheir,  "Fiefs,"  I,  1. 

«  Englisli  Law.  The  history  of  entails  is  very  complicated.  Let  us  dis- 
tinguish in  this  brief  outline  between  the  conditional  fees  of  the  common  law, 
fees  granted  by  virtue  of  the  Statute  "de  Donis,"  and  family  arrangements 

726 


Topic  6]  COVENANTS   RELATING   TO   INHERITANCE  [§  513 

Entails  in  trust  are  not  very  frequently  met  with  in  France, 
nor  elsewhere,  before  the  twelfth   century,^  and  for  the  reason, 

or  settlements  which  came  into  existence  after  the  seventeenth  century.  — 
(A)  Conditional  fees  were  reserved  for  a  certain  class  of  the  heirs  of  the  donee 
(for  example,  the  heirs  of  the  body  to  the  exclusion  of  the  collaterals,  the  males 
to  the  exclusion  of  the  females),  upon  failure  of  which  class  they  reverted  to  the 
donor  (or  to  liis  heirs).  The  grantees  sought  to  prevent  this  reversion  by  ahen- 
ating  their  fees  as  soon  as  a  child  was  born  to  them,  and  by  buying  them 
back  afterwards  in  order  to  make  them  capable  of  being  transmitted  to  their 
heirs,  whether  direct  or  collateral.  —  (B)  The  second  Statute  of  Westminster, 
1285,  "de  donis  conditionalibus,"  revived  estates  in  fee  tail  (that  is  to 
say,  limited),  for  example,  in  those  that  are  granted  with  a  clause  that  they 
shall  only  pass  to  the  male  cliildren  of  the  donee,  and  upon  failure  of  his  male 
children  shall  revert  to  the  donor.  By  degrees  entailed  possessions  were 
made  free,  but  this  scarcely  took  place  before  the  time  of  Henry  VIII:  Black- 
stone,  II,  7.  Cf.  Pollock  and  Maitland,  II,  11  et  seq.  As  to  the  reversion 
(return  to  the  grantor)  and  the  remainder  ("remanere,"  revertibility  to  third 
parties),  Lehr,  p.  310.  —  (C)  At  the  beginning  of  the  seventeenth  century 
the  patrimonial  domain  was  found  to  be  liable  to  be  split  up  because  the  actual 
owner  might  aUenate  it  or  dispose  of  it  by  will;  the  right  of  primogeniture  by 
itself  was  not  sufficient  to  keep  this  domain  intact.  Then  it  was  that  the  upper 
gentry  devised  family  settlements,  by  the  terms  of  which  the  heirs  placed 
themselves  in  the  same  position  as  the  one  encumbered  with  an  entail. 
Even  to-day  it  is  estimated  that  more  than  two-thirds  of  the  soil  is  subject  to 
this  system,  the  formation  of  which  Blackstone  does  not  seem  to  have  under- 
stood. It  is  true  that  neither  the  laws  nor  Parliament  nor  the  courts  were 
favorable  to  it;  from  a  legal  point  of  view  entails  were  only  lawful  if  they 
were  for  the  life  of  one  or  more  persons  in  being,  together  with  the  life  of 
a  person  to  be  born,  until  that  person  attained  the  age  of  twenty-one  years, 
which  was  about  the  same  thing  as  though  they  were  limited  to  a  duration 
of  eighty  years;  but  the  English  aristocracy  renewed  these  time  hmited 
estates  in  such  a  way  as  to  make  them  in  fact  perpetual:  Boutmy,  "Develop, 
de  la  Const,  en  Anglet.,"  ed.  1898,  p.  246.  —  (D)  Cf.  the  system  of  trusts,  — 
a  word  which  has  been  rather  badly  translated  by  "  fideicommis " :  property 
is  intrusted  to  one  person  (trustee)  in  the  interest  of  another  ("cestuy  que 
trust"):  Lehr,  p.  268;  Pollock  and  Maitland,  II,  226;  Pollock,  "Land  Laws," 
223;  "France  jud.,"  1877-1878,  p.  129. 

1  They  are  to  be  found  in  the  South  as  early  as  the  tenth  century:  D. 
Vaissette,  see  255  (in  966);  891  (in  1121);  958  (in  1129);  1173  (in  1154);  1177 
(in  1155),  etc.  Cf.  ibid.,  237,  238,  241,  etc.;  "Liber  Instr.  memor.,"  p.  172  et 
seq.  Sometimes  it  is  forbidden  to  aUenate  before  the  age  of  twenty-five  or 
thirty  years,  and  sometimes  the  prohibition  is  absolute:  "Petrus,"  I,  16; 
"Montpellier,"  56;  ffaenel,  "Dissens.  domin.,"  p.  465;  Pasquier,  "Doc.  rel. 
h  Boussagues,"  1901;  Dig.  X,  3,  26,  16,  18;  Gui  Pape,  103,  232  (bibl.);  "Decis. 
capella)  tolos.,"  q.  4.54,  455;  Boerius,  "Dec,"  38,  147,  156;  Menochius, 
"Prajs.,"  189  (testamentary  executors  called  "fideicommissarii");  see  Du 
Canrje;  Auffroy,  "Th.,"  500;  "Ass.  de  J6rus.,"  "Abrege  de  la  C.  de  Bourg.," 
c.  39.  —  Germany:  similar  clauses,  —  for  example,  if  the  donee  dies  without 
any  issue,  the  property  that  he  has  received  will  go  to  such  and  such  a  person: 
prohibition  to  alienate  to  no  matter  whom,  or  to  alienate  excepting  to  such  ana 
such  a  person,  etc.  But  frequently  these  grants  are  made  "zu  gesammter 
Hand"  (jointly)  with  the  exclusion  of  the  cognates  (examples  as  early  as  1075, 
"Bair  Akad.  bist.,"  14,  2,  78);  the  property  is  indivisible  and  inalienable;  a 
"  Ganerbschaft "  is  formed  (literally  co-heir,  but  really  a  couununity) ;  Schroedcr, 
273;  Verdelot,  p.  27.  In  the  fourteenth  century  the  establishment  of  an  order 
of  succession  makes  its  appearance.  This  is  what  preceded  the  family  trust 
of  the  seventeenth  century:  S.  Meyer,  "Beitr.  z.  Gesch.  d.  Fideic.  Subst.," 
1878,  and  "Z.  R.  G.,"  XV,  131;  Stobbe,  loc.  cit.;  Brunner,  "Grundz."  p.  210. 
PertUe,  IV,    152,   gives  an  instance  of  an  entail  at  Bergamo  dated   1076 

727 


§  513]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

undoubtedly,  that  until  that  time  the  interests  of  the  family 
were  protected  by  other  means.  At  that  time  the  spread  of  the 
Roman  law  and  its  trust  "familiae  relictum"  ("ne  heres  fundum 
alienaret  et  ut  in  familia  relinqueret"),^  and  the  admission  of 
feudal  primogeniture,  gave  to  this  institution  its  essential  char- 
acteristics. But  it  had  been  in  force  for  a  long  time  before  this. 
Without  mentioning  the  family  trust  which  was  in  use  among 
the  Anglo-Saxons  in  the  eighth  century,^  in  the  Prankish  coun- 
tries it  is  not  difficult  to  see  in  deeds  the  materials  whose  amalga- 
mation later  formed  entails :  reservations,  and  clauses  of  reversion 
making  the  property  which  was  being  disposed  of  inalienable,  con- 
ferring of  this  property  upon  a  person  and  his  "genealogia,"  and  a 
regulation  of  its  disposal  in  case  the  grantee  died  without  poster- 
ity; later  on  during  the  feudal  period  fiefs  are  conferred  upon  a 
certain  class  of  the  heirs  of  the  vassal,  and  during  his  lifetime 
the  latter  cannot  alienate  the  fief  .^  With  such  precedents  as  this 
the  genesis  of  entails  becomes  natural  enough.^  These  entails 
were  a  partial  restoration,  for  the  benefit  of  the  nobility,  of 
the  old  organization  of  the  family.^    The  more  the  old  customs 

(Lupi,  II,  706) ;  "Stat.  Venet.,"  4,  7.  In  Spain  it  is  established  that  they  existed 
in  1291. 

1  D.,  35,  2,  54;  30,  114,  14,  15  (rescripts  of  Severus  and  Antoninus);  "No- 
vella," 159  (four  degrees) ;  Girard,  pp.  282, 912  (on  the  trust  in  general) ;  Zacharie 
de  Lingenthal,  §  53. 

2  Brunner,  "Zur  Rechtsgesch.  der  Rom.  u.  Germ.  Urkunde,"  p.  190 
(cited  by  Kemble,  147,  169,  299,  327;  "  Alfred,"  41);  Schroeder,  285  (before  the 
year  770  the  gift  of  a  count  to  his  "genealogia").  See  as  to  appanages,  their 
reversion  to  the  domain:  Maffert,  "These,"  1901. 

^  "The  fief  is  not  a  free  piece  of  property;  it  is  fettered  from  two  points  of 
view :  for  the  benefit  of  the  sovereign  and  for  the  benefit  of  the  agnates  of  the 
vassal.  From  this  last  point  of  view  it  is  similar  to  the  trust";  Guilhiermoz, 
"Nobl.,"  200;  Lagonelle,  "Th.,"  1902. 

*  As  to  the  Spanish  origin  of  entails,  which  was  formerly  generally  ad- 
mitted (see,  for  example,  Ferriere),  cf.  Pfaff  and  Hofmann,  op.  cit.,  p.  23. 
But  there  existed  in  Germany  and  Italy  entails  that  were  similar  to  the 
"mayorazgos"  or  Spanish  estates  in  tail  before  the  influence  of  Spain  had 
begun  to  make  itself  felt.  After  the  seventeenth  century  there  was  a  great 
increase  of  family  trusts  in  Spain,  Laws  of  Toro,  1505;  in  Italy,  Edict  of  July 
16,  1648,  of  Charles  Emmanuel  II,  etc.;  "Cost.  Piemont.,"  1770,  VI.  In 
Germany  cf.  the  Prussian  "Landrecht"  and  the  majority  of  the  Codes  of  the 
last  century.    Cf.  also  on  this  subject,  England. 

*  German  Law.  The  theory  of  family  trusts  became  well  established  in 
the  seventeenth  century,  and  especially  in  the  writings  of  Knipschildt. 
This  author  likens  entailed  property  to  "Stammgiiter";  they  were  formed 
either  by  will  or  by  contract  (thus  differing  from  the  Roman  trust) ;  the  devo- 
lution of  the  property  takes  place  "ex  pacto  et  providentia  majorum."  The 
restriction  of  (>ntails  to  four  degrees  ("  Nov.,"  159)  is  not  admitted;  they 
are  perpetual,  for  the  object  is  to  maintain  the  power  of  the  family  indefinitely. 
For  this  same  reason  property  is  ordinarily  entailed  for  the  benefit  of  the 
males  and  the  eldest  of  the  males  (contrary  to  the  Roman  law).  In  time  the 
"Stammgiiter"  and  entailed  property  came  to  be  distinguished;  the  latter 

728 


Topic  6]  COVENANTS   RELATING   TO   INHERITANCE  [§513 

became  altered,  the  more  frequent  became  these  entails,  at 
least  among  those  whose  power  depended  upon  them.  They 
made  the  patrimony  inheritable,  indivisible,  inalienable  and  in- 
capable of  being  distrained  upon,  which  was  a  striking  return  to 
the  past;  they  only  gave  the  head  of  the  family  a  limited  right  of 
ownership,  as  was  his  status  in  the  early  times;  his  debts  re- 
mained personal  to  him  and  did  not  encumber  the  property  of 
which  he  had  been  the  depositary,  —  another  archaic  rule;  and, 
finally,  at  his  death  his  property  passed  to  heirs  who  were  chosen 
independently  of  his  wishes,  and  in  former  times  this  was  also 
done  in  the  same  way.  In  the  more  modern  law,  at  least  in 
France,  this  conception  little  by  little  lost  ground,  and  the  leg- 
islation of  the  monarchic  period  rather  looked  upon  entails 
with  disfavor,  seeing  in  them  a  "nursery  for  lawsuits,"  and  it 
modified  to  a  certain  extent  the  system  of  property  affected  by 
them. 

The  entail  is  not  the  result  of  the  law  or  the  Custom,  but  of 
a  declaration  of  will,  testament  or  contract;  in  Germany  the 
approval  of  the  sovereign  or  the  law  has  been  sometimes  further- 
more required.  It  especially  affects  immovables,  although  mov- 
ables are  found  to  be  included  in  entails  of  general  application; 
and  in  our  day  trusts  of  capital  are  sometimes  created.  The 
wishes  of  the  grantor  are  often  the  determining  factor  in  that  which 
concerns  the  naming  of  the  remainder-man;  sometimes  the  entail 
is  made  for  the  benefit  of  the  family  of  the  person  encumbered, 
and  sometimes  for  the  benefit  of  the  member  of  the  family  whom 
the  one  encumbered  shall  choose;^  most  often  the  property  is 
kept  for  the  male  agnates  alone,  and  the  trust  estate  is  trans- 
mitted entirely  according  to  the  systems  of  seniority  (for  the  bene- 
fit of  the  eldest  of  the  family),  of  the  "majorat"  ("sensu  stricto," 
for  the  benefit  of  the  oldest  among  the  most  nearly  related  with- 

assumed  a  special  grant;  the  former  were  established  by  the  law  or  the  Custom; 
the  "Stammglit"  is  alienable  and  can  be  distrained  ujjon  in  certain  cases;  the 
entailed  property  cannot  be  (but  this  difference  became  less);  the  inheritance 
of  the  "Stammgiit"  follows  the  common  law  and  docs  not  take  place  "ex 
pacto  et  providentia  majorum."  The  "Grundechte,"  §  18,  of  the  Parliament 
of  Frankfort,  in  1848,  abolished  trusts,  but  their  decision  did  not  have  a  very 
lasting  effect.  The  existing  Civil  Code  leaves  to  the  local  legislative  bodies 
the  care  of  regulating  this  matter.  In  1895  there  were  in  Prussia  only  about 
2,000,000  "hectares"  subject  to  trusts  out  of  nearly  35,000,000  that  are  con- 
tained in  the  territory  of  this  country:  Blondel,  "Popul.  rurales  de  I'All.," 
p.  435  (bibl.);  Regnier,  "Th6se,"  1900  ("Distinctions  de  Classes  dans  la 
Societe  Allemande  actuelle"). 

1  Brillon,  see  Ferribre;  Vulson,  op.  cit.;  Guyot,  see  "Choix.,"  "  Ord."  of  1735, 
62  et  seq. 

729 


§  513]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

out  representation).^  The  remainder-man  inherits  "ex  pacto  et 
providentia  majoriim";  he  does  not  take  the  inheritable  property 
of  the  man  encumbered,  but  that  of  the  donor,  which  means  that 
the  acts  of  the  man  encumbered  cannot  on  principle  be  set  up 
against  him.  The  man  encumbered,  or  the  actual  titulary  of 
the  trust,  has  the  full  ownership  of  the  property  in  trust  (domin- 
ion and  user);-  he  has  the  possession  and  the  enjoyment;  he  is 
even  authorized  to  change  the  cultivation,  etc.;  he  exercises  the 
honors  and  dignities  attached  to  this  property.  It  is  only  asked 
of  him  that  he  shall  not  compromise  the  rights  of  the  remainder- 
men. Thus  he  must  administer  after  the  manner  of  a  good 
father  of  a  family,  under  penalty  of  having  to  pay  damages.  He 
cannot  alienate  the  property  in  trust.^  If  he  does  so,  there  are 
two  possible  solutions  of  the  matter:  either  to  let  the  alienation 
stand  until  his  death  or  to  consider  him  as  being  deprived  of  his 
rights  and  to  allow  the  immediate  vesting  of  the  rights  in  re- 
mainder; this  last  solution  would  be  more  in  conformity  with  the 
spirit  of  the  institution,  but  it  has  not  been  conceded  in  France, 
under  the  pretext  that  it  was  sufficient  in  the  interests  of  the  fam- 
ily that  the  remainder-man  could  take  the  trust  estate  when  the 
trust  should  vest  for  his  benefit.  One  may  ask  if  the  consent  of 
the  remainder-men  could  validate  the  alienation ;  in  fact,  it  is  a  very 
rare  thing  in  the  case  of  "  graduated  "  trusts  that  all  later  in  line 
can  give  their  consent;  in  case  this  did  happen  the  French  juris- 
consults decided  that  the  alienation  would  be  valid,  although  it 
would  be  possible  to  see  in  this  a  renunciation  of  future  succes- 
sion by  the  remainder-man.  The  remainder-man  in  tail  has  in 
fact  a  right  of  succession,  an  expectant  estate,  which  may  be  com- 
pared to  the  reservation;  if  he  should  survive  the  one  encumbered, 
he  takes  the  trust  property,  and,  just  as  an  heir  at  law,  he  should 
be  seised  by  operation  of  law;  but  the  Ordinance  of  1747  (40,  1) 
treats  him  as  a  legatee  and  compels  him  to  ask  for  delivery  at  the 
hands  of  the  one  encumbered  (or  from  his  heirs).  The  latter  re- 
stores the  hereditary  property,  excepting  a  life  share  and  the 
heir's  quarter  of  the  estate  in  countries  of  written  law.    During 

^  Sometimes  it  was. customary  to  grant  an  appanage  to  the  younger  sons 
of  the  family  whom  the  trust  had  disinherited:  Fertile,  IV,  156;  Maffert, 
"Apanages,"  "These,"  1901. 

*  Controversy,  cf.  Stobbe,  II,  562.  See  appanages.  —  As  to  the  possessions 
of  the  stock,  "Stammgiiter,"  of  the  famiHes  of  the  higher  nobihty  and  the 
question  of  the  juridical  status  of  these  families,  cf.  Verdelot,  p.  109  et  seq.  (bibl.). 

'  Cf.,  however,  the  trust  "de  eo  quod  supererit."  —  As  to  clauses  of  in- 
alienability, cf.  the  Theses  of  Besnus,  1S99;  Fourrier,  1900;  Henrys,  V,  49. 

730 


Topic  6]  COVENANTS   RELATING   TO   INHERITANCE  [§513 

the  life  of  the  man  encumbered  the  next  in  Kne  could  at  the  most 
perform  acts  for  preserving  the  inheritance;  an  inventory  made 
previous  to  the  entry  upon  the  enjoyment  of  the  estate  by  the 
one  encumbered,  the  sale  of  movables  affected  by  the  trusts,  would 
suffice  ordinarily  to  protect  the  interests  of  the  successor;  if  there 
was  any  waste  which  amounted  to  a  destruction  of  buildings, 
the  latter  could  have  a  bond  furnished  him  or  have  himself  put 
in  possession.  In  case  of  an  action  being  brought  against  the 
one  encumbered  which  affected  the  property  in  trust,  the  judg- 
ment could  only  be  set  up  against  the  remainder-man  if  the  public 
ministry  had  intervened;  and,  again,  the  latter  had  the  power  to 
protect  himself  by  means  of  the  civil  petition  against  proceedings 
in  which  he  had  not  been  a  party. 

Entails  were  justified  during  the  monarchic  period  by  two 
reasons:  1st.  The  interest  of  children  and  their  posterity;  the 
father  and  mother  who  had  a  son  who  was  a  spendthrift  pre- 
vented him  by  means  of  an  entail  from  ruining  himself;  the  en- 
tail was  then  a  sort  of  domestic  conservator,  without  scandal, 
but  also  without  surety.^  2d.  The  interest  of  the  nobility;  "in 
the  great  houses  whose  possessions  consisted  of  lands,  entails 
have  become  almost  necessary  because  of  the  tremendous  ex- 
penses forced  upon  the  lords  who  have  to  uphold  illustrious 
names  and  fill  an  occupation  which  is  worthy  of  their  birth"; 
they  appear  thus  as  being  an  indispensable  complement  of 
the  right  of  primogeniture.^  —  But  these  results  were  only  ob- 
tained at  the  price  of  great  disadvantages,  as  long  as  entails 
could  be  perpetual  and  secret.  Perpetual:  the  property  under 
these  was  excluded  from  trade;  and  if  only  this  mass  of  property 
was  a  great  one,  a  serious  obstacle  to  the  development  of  public 
wealth  resulted  therefrom.^  Secret:  under  which  the  man  encum- 
bered passed  for  the  absolute  owner  and  because  of  this  en- 
joyed a  fictitious  credit.  His  position  was  a  snare  which  invited 
public  confidence;  very  few  resisted  the  temptation  to  abuse  the 

1  "Lex  si  Furioso,"  Dig.,  27,  10,  16.  Cf.  "Official  Disinheriting,"  Ferribre, 
see  "Subst." 

2  Verdelot,  p.  247,  analyzes  the  recent  German  writings  for  and  against 
trusts.    Cf.  Petiel,  "These,"  1901;  Rey,  "Noblesse,"  "These,"  1902. 

'  Mahometan  law:  alongside  of  the  "melk"  ownership  (similar  to  our 
individual  ownership)  there  exists  the  "wakf"  or  "habous,"  a  piece  of  prop- 
erty dedicated  in  perpetuity  to  some  charitable  work,  a  sort  of  endowment, 
but  with  this  peculiarity,  that  it  goes  first  of  all  into  the  hands  of  the  inter- 
mediary grantees,  who  are  designated  by  the  grantor.  This  has  been 
compared  to  entailed  property:  Lescure,  "Th.,"  1900  (bibl.);  Dareste,  "Nouv. 
Et.,"  344. 

731 


§  513]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

good  faith  of  third  parties;  if  the  old  famiHes  kept  their  property, 
it  was  only  with  the  shame  of  a  bankruptcy  in  each  generation. 
Guy  Coquille  (on  "Niv.,"  23,  10)  deplores  the  fate  of  the  de- 
frauded creditors  and  abused  sons-in-law,  "who  so  often  found  the 
inheritance  which  they  thought  was  very  rich  to  be  good-for- 
nothing."  ^  The  Old  Regime  had  to  remedy  this  evil:  (a)  the 
Ordinance  of  Orleans,  1560,  59,  limited  entails  to  two  degrees,  not 
including  the  first  holder;  -  (b)  various  edicts  or  ordinances 
of  tJie  sixteenth  century,^  especially  the  Ordinance  of  Moulins, 
15G6,  Art.  57,  provided  for  the  publicity  of  entails;  they  had 
to  be  read  in  court  and  registered.^  But  these  laws  were  hardly 
effective;  they  were  not  in  force  in  the  provinces  which  had 
been  newly  added  to  France;  certain  of  their  provisions  were 
disputed,  for  example,  the  one  about  the  reckoning  of  degrees;  ^ 
the  Parliaments  of  the  South  maintained  entails  to  the  fourth 
degree.  Finally,  it  was  decided  —  very  late  —  to  establish  a  uni- 
form legislation  in  this  matter;  this  was  the  work  of  the  Ordinance 
of  August,  1747,  which  did  little  more  than  codify  the  previously 
existing  law  to  correct  and  settle  the  decisions,  but  which,  with- 
out making  much  of  an  innovation,  none  the  less  rendered  great 
services  by  cutting  short  a  large  number  of  litigations.^ 

Abolished  by  the  Revolution  out  of  hatred  for  feudalism  (D.  25 
Oct.,  14  Nov.,  1792)  ^  entails  were  also  prohibited  on  principle  by 

1  Provisions  in  the  interest  of  creditors  by  Pope  Clement  VIII:  Fertile,  IV, 
159. 

2  The  "Ord."  of  1650  only  provided  for  the  future;  the  "Ord."  of  Moulins, 
February,  1566,  Article  57,  limited  to  four  degrees  entails  which  had  been 
created  previous  to  it.  Cf.  the  Edict  of  1598  of  Charles  Emmanuel  I  for 
Piedmont.     Maria  Theresa  restricted  them  to  two  degrees:  Pertile,  IV,  162. 

Perpetual  entails  were  still  possible,  provided  letters  patent  had  been 
obtained  from  the  king,  and  even  these  letters  were  not  necessary  in  the 
case  of  a  peer's  duchy.     Edict  of  May,  1771,  on  peerages:  Thevenot,  p.  463. 

3  1539,  1553,  1566,  1690.     Cf.  Isambert,  see  Table;  Argou,  II,  14. 

*  Provisions  as  to  pubhcation  in  Italy  since  1491:  Pertile,  IV,  159.  Cf. 
as  to  Germany,  Stobbe,  op.  cit. 

5  "Ord."  of  1629,  Art.  124  et  seq. 

8  D'Aguesseau  did  not  think  very  well  of  entails:  "The  absolute  aboli- 
tion of  all  trusts,"  said  he,  "would  perhaps  be  the  best  law  of  any  .  .  . 
but  I  fear  that  in  order  to  arrive  at  it,  especially  in  the  countries  of  written 
law,  it  would  be  necessary  to  begin  by  reforming  the  individuals;  and  this 
would  be  the  work  of  a  single  individual,  who  himself  would  have  need  of 
being  reformed."  Letter  of  June  24,  1730.  Montaigne,  II,  8,  rises  up  against 
entails  limited  to  the  male  line,  which  "we  take,"  says  he,  "too  seriously, 
and  by  means  of  which  we  propose  to  give  our  names  a  ridiculous  eternity." 
Montesquieu,  "Espr.  des  Lois,"  V,  9.  In  the  seventeenth  century  P.  Nav- 
arretta  and  Diego  de  Saavedra  also  criticise  entails:  Adami,  "Leggi. 
8.  Manimorte,"  p.  13;  Flammer,  "Dr.  civil  de  Geneve,"  p.  20;  Fenet,  XII, 
'516. 

7  Sagnac,  p.  224.     Cf.  Du  Casse,  "M^m.  du  roi  Joseph  II,"  299  (1856).— 

732 


Topic  6]  COVEN.iNTS    RELATING    TO    INHERIT.AJNCE  '      [§513 

the  Civil  Code,  Art.  896,  because  of  this  motive  and  because  of 
economic  reasons^  (the  interest  of  agriculture,  of  credit,  and  of 
the  circulation  of  property,  etc.).^ 

Abolition  in  Tuscany  in  1782:  Fertile,  IV,  162. — A  few  customs,  "Norm.," 
"Auv.,"  "Niv.,"  already  prohibited  their  being  made  by  will:  Bretonnier, 
op.  cit.,  in  fine;  "Code  Civil  interm.,"  see  Table.  The  Romanists  held  them 
to  be  "odiosa"  (Alciat,  etc.). 

1  Aron,  "N.  R.  H.,"  1901,  586. 

2  Previous  legislation.  —  (A)  Estates  in  tail  (Decree  of  March  30,  1806; 
Senate  Decree  of  Oct.  14,  1806;  March  1,  1808)  for  the  benefit  of  the  new 
nobility  created  by  Napoleon.  The  possessions  forming  the  endowment 
of  the  new  titles  were  effected  by  perpetual  entails  and  they  were  trans- 
mitted from  male  to  male  in  order  of  primogeniture.  They  were  forbidden 
for  the  future  and  practically  abolished  as  to  the  past  by  the  Laws  of  May 
12,  1835,  and  May  7,  1749:  Rondonneau,  "Coll.  des  Lois  Cone,  des  Maj.," 
1808;  Desquiron,  "Comm.  s.  le  Statut  de  1808,"  1809;  Merlin,  see  "Maj."; 
V alette,  "Rapp.  s.  Loi  1849."  — (B)  Entails  aUowed.  The  Civil  Code 
itself  permitted  as  an  exception  "officious"  entails,  provided  that  they 
did  not  create  any  inequaUties  between  children  (Art.  1048).  Under  the 
Restoration  there  was  some  question  of  re-establishing  the  right  of  primo- 
geniture. The  Law  of  May  17,  1826  (repealed  in  1849)  authorized  entails 
for  the  benefit  of  one  child. 


733 


§  514]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 


Topic  7.  Reservation  and  Legal  Share 


§  514.  Barbarian  Legislation. 
§  515.  Feudal  and  Customary  Law. 
§  516.  The    "Legal      Share"    ("legi- 
time"). 


§  517.  By  what  Right  did  one  collect 

the  Legal  Share? 
§  518.  The  Revolution  and  the  Civil 

Code. 


§514.  Barbarian  Legislation. — The  point  of  departure,  at 
least  for  the  present  purpose,  of  the  evolution  of  the  Germanic 
law,  is  the  inalienability  of  the  family  inheritance.^  In  time  this 
was  gotten  away  from  in  various  ways.  Among  the  Burgundians, 
the  Alamans  and  the  Bavarians,  the  father  and  the  children  lived 
in  a  community;  ^  although  the  head  of  the  family,  the  father 
could  not  alienate  the  possessions  which  were  jointly  owned ;  ^ 
but  he  had  the  power  to  make  a  partition  with  his  children;  '*  by 

1  Ficker  denies  this,  and  maintains  that  the  freedom  of  alienation  e.xisted 
originally  in  the  law,  but  that  it  was  limited  by  customs  at  the  outset  and 
afterwards  by  legislation.  The  arguments  on  this  point  which  he  draws 
from  the  barbarian  laws  have  been  refuted,  especially  by  Brunner.  Cf. 
"L.  Thur.,"  54,  and  "Alam.,"  which  are  explained  by  "Bai.,"  1  (the  free 
man  can  dispose  of  his  property  for  the  benefit  of  anybody  he  chooses;  but 
it  is  understood  that  this  means  provided  the  customary  conditions  are  all 
fulfilled,  —  for  example,  that  there  has  been  a  partition).  Cf.  the  Capitu- 
lary of  818-819.  —  On  this  disputed  question  cf.  a  summing  up  of  the  various 
opinions  in  Adler,  p.  3.  To-day  there  is  an  ever  increasing  tendency  to  admit 
that  the  reservation  is,  like  the  law  of  succession  itself,  an  outcome  of  the 
primitive  family  community;  the  " Gemeinschaftsrecht "  becomes  changed 
into  "Wartrecht,"  into  "Erbrecht."  Danish  law:  cf.  Matzen,  "For.  or. 
Danske  Retshistorie,"  I,  19.  Swedish  law,  cf.  Beauchet,  "N.  R.  H.,"  1900, 
601  (family  ownership).  Cf.  Mahometan  law,  Hanoteau,  "Kabylie,"  II; 
Ze7js,   "Le  Nil." 

2  "  Ganerbschaft "  (cf.  the  German  translation  of  the  Capitulary  of  818-819: 
"Coheres,"  meaning  "geanervo"),  "Hausgenossenschaft,"  "Gemeinder- 
schaft,"  etc.:  "Burg.,"  1,  24,  51;  "Bai.,"  1;  Schmollcr,  "Die  alt.  Arbeits- 
genossenschaften  u.  d.  alt.  agrarische  Familienwirtlischaf t "  ("Jahrb.  f. 
Gesetzgeb.,"  1890);  Miaskowski,  "  Problem  des  Grundbesitzvertheilung,"  1890. 

^  There  is  unity  of  joint  ownership,  "zu  gesammter  Hand,"  that  is  to 
saj',  all  the  members  of  the  community  must  participate,  at  least  in  the 
alienation  of  the  immovables.  Details  and  bibl.  in  Verdelot,  "These,"  p.  15 
et  seq.  After  the  death  of  the  father  the  community  does  not  cease;  some- 
times there  take  place  "Mutschierungen"  or  partitions  in  fact  of  the  usufruct 
between  the  members  of  the  community  without  its  unity  being  broken. 
Cf.  partitions  of  the  kingdom  under  the  Merovingians  and  the  CaroHngians 
(the  same  title,  "Rex  Francorum"  for  each  king;  increase;  reckoning  of  the 
years  of  the  reign  dating  from  the  accession,  even  with  regard  to  shares  which 
had  increased,  etc.).  Cf.  also  descent,  appanage,  and  collective  investiture 
of  fiefs.  As  to  the  maxim,  "Was  in  der  Were  verstirbt,  das  erbt  wieder  an 
die  Were,"  Freund,  1880,  cf.  Chaisemartin,  p.  445;  Grimm,  556,  602. 

*  The  Law  of  the  Burgundians  does  not  say  that  children  can  compel  their 
father  to  partition;  it  is  otherwise  in  the  "Schwabenspiegel,"  I,  59;  Heusler, 
I,  240;  II,  439.  Must  we  assume  that  during  the  period  of  the  barbarian 
laws  the  male  children  and  those  who  had  attained  their  majority  had  not 

734 


Topic  7]  RESERVATION   AND   LEGAL   SIL^RE  [§  514 

this  means  he  acquired  the  right  of  disposing  of  his  share. ^  Per- 
haps, even,  it  was  not  rare  in  such  a  case  as  this  for  the  near  rela- 
tives to  be  asked  to  approve  of  the  aUenation,-  as  was  the  case 
among  the  Saxons,  who  at  the  period  when  their  law  was  drawn 
up  do  not  seem  to  have  had  any  family  communities.^  Among 
the  Franks  ^  and  elsewhere  both  the  Saxon  custom  of  the  consent 
of  the  relatives  living  out  of  the  community,  and  the  communi- 
ties of  near  relatives  living  under  the  same  roof,^  are  once  more  to 
be  found.  Under  the  influence  of  religious  ideas  ^  these  very  old 
rules  were  not  conformed  with;  one  might  even  think  that  they 
were  entirely  abandoned,  for  one  reads  at  the  head  of  Chapter  6 
of  the  Capitulary  of  818,  819,  "Ut  omnis  homo  liber  ^  potestatem 
habeat,  ubicumque  voLuerit,  res  suas  dare  pro  salute  animse  suae." 
Practically,  this  formula  means  that  if  the  grantor  lives  in  a  com- 
munity he  will  nevertheless  be  able  to  make  a  grant  for  the  benefit 
of  the  Church;  the  public  authority  (the  count  or  "missus")  would 
force  the  recalcitrant  members  of  the  community  to  partition  with 

only  the  right  to  demand  their  share  of  the  common  patrimony  in  case  of  a 
partition,  but  also  the  right  to  compel  their  father  to  make  a  partition?  This 
no  doubt  depends  upon  what  period  we  are  considering.  Capitulary  of 
818-819,  c.  6;  "Z.  S.  S.,  G.  A.,"  1895,  229. 

1  " Todtheilung "    (partition),    "Watschar"    (portion). 

2  Cf.  especially  the  analysis  of  Bavarian  deeds  in  Adler  op.  cit.  Those 
in  which  the  relatives  are  mentioned  are  almost  as  numerous  as  those  in  which 
they  do  not  play  a  part.  Their  absence  may  be  because  the  grantor  is  the 
last  of  his  family;  he  has  no  posterity,  no  relatives.  Their  intervention  is 
to  be  accounted  for  by  the  existence  of  a  community,  or,  if  it  has  been  dis- 
solved, by  the  necessity  of  establishing  the  fact  that  they  have  been  given 
their  share;  the  Customs,  which  are  more  strict  than  the  law,  taking  into 
account  family  solidarity,  widen  the  circle  of  the  relatives:  "propinqui  con- 
senserunt,  ego,  fratres  et  proximi  tradiderunt  convocata  parentum  turma," 
etc.  In  770,  Poapo,  "vir  nobilis,"  calls  together  his  relatives  and  submits 
to  them  a  difference  which  he  has  with  his  sons  on  the  subject  of  a  gift  which 
he  wishes  to  make  to  a  church  (perhaps  this  deals  with  a  special  custom 
peculiar  to  the  nobihty). 

'  As  to  the  Saxon  law  and  the  "Beispruchsrecht,"  cf.  §  339,  supra,  and  notes. 

<  Pardessus,  "Dipl.,"  no.  559;  "Sal.  em.,"  14,  11;  Capitulary  of  805,  22; 
820,  3;  816,  5;  818,  819,  11  and  6  (I,  125,  292,  267,  283).  Cf.  Brwiner,  op. 
cit.;  Kohler,  p.  234  (various  texts).  According  to  Ficker,  IV,  204,  372, 
if  there  were  no  reservation  ("Wartrecht")  among  the  Salians  the  mother's 
"dos"  was  appropriated  for  the  children;  to  the  contrary,  Brunner,  op.  cit. — 
Cf.  "L.  Rib.,"  48,  49. 

^  "Roth.,"   167;  see  Grimoald,  etc.;  Thdvenin,  no.  79. 

•  Citations  of  the  Fathers  of  the  Church  in  Locning,  "D.  Kirchenr.,"  I, 
220;  II,  38,  685.  Salvien  advises  the  faithful  to  give  all  their  possessions 
for  the  salvation  of  their  souls  and  not  to  trouble  about  their  relatives  ("nemo 
conjunctior  quam  vos  ipsi").  Others,  more  scrupulous,  do  not  wish  the 
family  to  be  stripped.  St.  Augustine  prescribes  that  the  Church  should  be 
accounted  as  one  more  child.  Rozicrc,  "Form.,"  175:  Gifts  "ad  loca  sanc- 
torum" (preambles). 

'  The  man  who  is  not  free  cannot  alienate  to  any  one  outside  of  the  domain. 

735 


§  514]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

the  Church  benefiting  as  the  grantee,  or,  if  partition  was  im- 
possible for  the  time  being,  the  Church  would  enter  temporarily 
into  the  community,  in  order  to  exercise  therein  the  rights  of  the 
grantor.^  Already,  the  law  of  the  Burgundians,  Title  1,  authorized 
the  father  to  make  a  grant  before  any  partition,  which  was  contrary 
to  the  old  rule;  ^  this  old  rule  only  remained  in  force  with  regard 
to  a  certain  category  of  possessions,  the  share  of  the  Burgundian 
tenant  in  the  partition  of  lands  with  the  Gallo-Roman  owner 
("terra  sortis  titulo  adquisita").  Furthermore,  the  law  of  the  Sax- 
ons dispensed  with  the  consent  of  the  relatives  to  alienations  for 
the  benefit  of  the  Church  and  the  king.  In  specially  conceding 
the  privilege  of  the  Church,^  the  barbarian  legislation  is  far  from 
freedom  of  alienation.  Sometimes  this  was  only  permitted  with 
the  approval  of  near  relatives,^  sometimes  the  head  of  the  family 
was  only  free  to  make  a  grant  of  a  portion  of  the  inheritance  which 
he  administered,^  either  of  the  share  of  one  child  —  and  then  the 
quantity  which  could  be  disposed  of  varied  ^  —  or  of  a  fixed  quan- 
tity, one-fifth  among  the  Visigoths,^  one-third  among  the  Salian 

1  For  example,  as  long  as  the  children  are  minors,  c/.  "Sal.,"  73;  Schroeder, 
pp.  264,  320;  Adler,  "Ehel.  Guterr.,"  1893  (c/.  "Z.  S.  S.,  G.  A.,"  1895,  229). 

2  The  father  who  could  not  alienate  before  he  had  made  a  partition  with 
his  sons  (Tit.  24-51),  acquired  through  a  later  law  (amendment  of  Tit.  1) 
the  right  to  dispose  of  his  property  before  the  partition:  Brunner,  op.  cit. 
To  the  contrary,  Ficker,  I,  272.  If  one  of  the  children  died  before  his  father 
his  share  would  revert  to  his  father  (Tit.  51,  2),  who  once  more  became  its 
owner,  but  without  the  power  of  alienating  it;  thus  his  other  sons  would  have 
a  sort  of  reservation  over  this  share.  Tit.  78  changes  the  limited  ownership 
of  the  father  into  a  mere  enjoyment  and  gives  the  bare  ownership  to  the 
brothers;  if  one  of  them  should  die  before  the  father  his  children  would  suc- 
ceed to  his  property,  whereas,  according  to  Tit.  51,  they  would  not  have  been 
able  to  compete  with  their  uncles. 

3  Cf.  p.  437,  note  3.  Protestations  against  the  not  very  scrupulous  cleri- 
cals who  stripped  famihes  (Capitularies).  The  feudal  system  resulted  in 
forbidding  on  principle  the  disposing  of  immovables  for  the  benefit  of  "main- 
forte"  or  of  "mainmorte"  ("nee  militi,  nee  clerico").  As  to  this  prohibi- 
tion and  the  means  used  to  evade  it,  cf.  §  515;  Agen,  25. 

^  Cf.,  however,  the  formulge  stating  that  each  one  can  dispose  of  his  pos- 
sessions:  "Andec,"  36,  45;  Roziere,  131,  205. 

'  The  portion  reserved  to  the  son  is  called  the  "Falcidia":  Ldndenbrog, 
72;  see  Du  Cange;  Zanetti,  "Legge  Romana  reticacoirese,"  p.  120. 

•  The  father  who  has  two  sons  can  dispose  of  one-third  of  his  possessions; 
the  one  who  has  three,  of  one-fourth,  etc.  Lombards:  Fertile,  IV,  104; 
"Roth.,"  154-171;  "Liut.,"  65,  101-113,  "Aist.,"  1-13;  "Areg.,"  14.  Ac- 
cording to  Pa-ppenheim.,  "Z.  S.  S.,  G.  A.,"  1901,  389,  the  hereditary  share  of 
the  children  and  of  the  father  must  have  been  absolutely  incapable  of  being 
disposed  of  during  the  time  of  Rotharis  {Contra,  Ficker,  II,  356) ;  it  is  only  in 
the  eighteenth  century,  perhaps  as  a  consequence  of  "Liut.,"  113,  that  it 
became  divided  into  a  disposable  portion  and  the  reservation:  Brunner, 
"Reg.  farf.,"  p.  10  ("Mitth.  d.  Inst.  f.  oest.  Gesch.,"  II,  1).  As  to  the  rights 
of  daughters,  cf.  Brunner,  "Z.  S.  S.,  G.  A.,"  21,  6. 

'  Quantity  which  appears  at  first  in  a  retouch  by  Leovigild  of  an  "  Antiqua," 

736 


Topic  7]  RESERVATION   AND    LEGAL   SHARE  [§  514 

Franks,  and  one-half  among  the  Burgundians.^  In  this  last  case 
the  reservation  is  only  mentioned  as  being  for  the  benefit  of  the 
descendants.^  We  have  already  seen  that  disinheriting  is  very 
exceptional.^  Gifts  were  sometimes  for  the  benefit  of  the  Church 
or  third  parties,  and  sometimes  for  the  spouse  of  the  one  making 
the  grant,  or  for  one  of  his  children,  or  one  of  his  heirs.  For  each 
one  of  these  grantees  a  special  rule,  due  to  favor  or  distrust, 
was  conceived  of;  but  the  incoherent  provisions  of  the  barbarian 
laws  hardly  enable  one  to  make  out  their  growth  excepting  in 
that  which  concerns  the  Church  and  the  spouse.  To  judge  from 
them  according  to  their  general  spirit,  they  must  rather  have  tol- 
erated reference-legacies  or  special  advancements  ("melioratio") 
to  one  of  the  children  than  gifts  to  strangers  of  such  a  nature  as 
to  strip  the  family.  But  the  spirit  of  equality  already  made  itself 
felt  and  was  sometimes  in  conflict  with  this  result.^  Among  the 
Burgundians,  the  Alamans  and  the  Bavarians,  third  parties  and 
children  were  placed  upon  the  same  footing.  Among  the  Ripu- 
arians  it  was  forbidden  to  give  one  of  the  children  more  than 
twelve  sous  outside  of  his  share,  and  the  Salians  do  not  seem,  to 
have  known  any  reference-legacy  other  than  the  gift  made  to  a 
daughter  upon  the  day  of  her  wedding,  or  to  a  son  the  day  when 
his  hair  was  cut  for  the  first  time.  Among  the  Visigoths  the 
amount  which  could  be  disposed  of  for  the  benefit  of  children, 

5,  2,  4,  cf.  5,  2,  5,  and  "Cod.  Euric,"  319,  and  which  Chindasvnnd  generalizes, 
4,  5,  1  and  2,  in  abrogating  an  old  law  of  Euric  which  we  do  not  possess,  and 
which  had  introduced  the  freedom  of  alienation  among  the  Visigoths  (in 
what  terms?  Disinheritance  "pro  levi  culpa"  was  not  permitted  formerly); 
the  innovation  of  Euric  can  scarcely  be  accounted  for,  excepting  by  the  in- 
fluence of  the  Roman  law  or  of  the  Church:  Brunner,  loc.  cit.;  Ficker,  IV,  104; 
Zeumer,  "N.  Arch.,"  26,  139.  The  reservation  is  first  of  all  conferred  upon 
the  children  out  of  the  property  given  by  the  husband  to  the  wife  (Leovigild), 
and  then  out  of  the  "dos"  (Chindaswind),  and  finally  out  of  all  the  property 
excepting  the  acquests  made  during  the  marriage,  the  booty  of  war  and  royal 
gifts  ("Wis.,"  4,  2,  16;  14.5,  2,  2;  Euric,  305).  Erwig  only  makes  the  reserva- 
tion affect  the  husband's  personal  belongings  (4,  5,  1,  cf.  2,  1,  6;  3,  1,  9) . 

1  Arg.,  "Form.  Andec,"  58.  The  marriage  portion  among  the  Salians 
is  one-third:  "T.  A.  C,  Norm.,"  89;  "T.  A.  C,  Bret.,"  41;  "Compil.  de  us. 
Andeg.,"  43;  Ficker,  IV.  382,  394.  — C/.  §  490,  supra  (the  share  of  the 
dead;  division  of  the  patrimony  into  three  parts,  —  one  for  the  dead,  another 
for  the  widow,  and  a  third  for  the  children);  Dareste,  "Nouv.  Et.,"  304; 
"Burg.,"  51,  1;  53,  2;  75;  Ficker,  II,  123. 

2  Communities  among  brothers  are,  however,  not  a  rare  thing.  On  the 
hereditary  rights  of  the  father  and  mother  cf.  "Z.  S.  S.,"  1901,  "G.  A.."  374. 

3  "Wis.,"  4,  .5,  1;  "Alam.,"  1;  "Sax.,"  82;  "Roth.,"  166;  "Liut.,"  5,19, 
57;  "Z.  S.  S."  1901,  "G.  A.,"  385;  Am6g.,  II,  31;  "F.  Capit.,"  Ill,  326.  Cf. 
"Schwabenspiegol,"  ed.  Matile,  VIII,  28  ("a  man  makes  his  son  a  monk"). 

*  Cf.  "Cod.  Th(5od.,"  3,  8,  2:  right  of  favoring  one  child  in  the  case  of  a 
second  marriage.     Majorien  abolishes  it  ("Nov.,"  6,  8);  Severus,  I,  1,  id. 

737 


§  514]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

which  was  one-tenth  (instead  of  one-fifth  as  for  third  parties), 
was  increased  by  Erwig  ^  to  one-third  of  the  possessions. 

§  515.  Feudal  and  Customary  Law.  —  Out  of  these  precedents  ^ 
there  arose  ^  the  Customary  reservation/  a  new  and  a  httle  less 
powerful  form  of  the  right  of  relatives.  This  is  to  gratuitous 
alienations  what  the  repurchase  by  a  person  of  the  same  lineage 
is  to  alienations  for  a  consideration.    Like  the  latter,  it  is  re- 

1  "Wis.,"  4,  5, 1  and 2, 18;  "Rib.,"  59,  9.  Cf.  "Sal.,"  100  (ed.  Hessels);  Geff- 
cken,  p.  253,  bibl.;  Schroeder,  p.  319;  "Burg.,"  1  and  86.  Among  the  Ba- 
varians, Adler,  p.  121;  Marculfe,  2,  12,  14.  Among  the  Lombards  cf.  "Liut.," 
101,  113;  Fertile,  IV,  129,  104.  — The  Roz.  formula?,  166  et  seg.,  contemplated 
gifts  by  reference  legacy  ("absque  consortium")  for  the  benefit  of  one  son 
or  grandson  (reference  to  the  "L.  Rom.  Wis.,"  2,  24,  1,  int.).  —  As  to  ille- 
gitimate children  see  Roziere,  "Form.,"  130:  Brunner,  "Grundz.,"  p.  200. 

-  In  many  places  the  old  usages  persisted:  "A.  C,  Artois,"  23,  1  (aliena- 
tion at  the  pleasure  of  the  heir);  1509,  Art.  50;  1544,  Arts.  76,  77;  "Boulenois, 
A.  C,"  73 ;  " N.  C,"  124;  " Reims,"  1481,  Art.  54, 106;  "  Bayonne,"  70;  " Bearn,'^ 
1552;  cf.  ed.  Mazure,  Art.  178;  Labourt,  5,  1;  Soide,  17,  1;  26,  4;  Kohler,  loc.  cit.; 
Britz,  p.  724  (at  Valenciennes  one  gave  up  the  seisin  to  a  fictitious  grantee). 
The  "Coutume  de  Lille"  and  a  few  others  only  allowed  of  the  disposal  of 
income  and  personal  belongings.  —  Prohibition  of  disposing  of  immovables 
by  will,  Glanville,  7,  5,  4;  cf.  "T.  A.  C,  Norm.,"  57,  4  et  seq.  —  Disfavor  with 
which  wills  were  looked  upon  by  our  old  jurisconsults  of  the  seventeenth  and 
eighteenth  centuries  (proceedings  to  which  they  give  rise,  arbitrary  char- 
acter of  their  provisions);  Domat,  "Loix  civ.,"  4,  8;  Le  Brun,  "Succ,"  — 
"There  is  always  acomplaintas  to  wills,  andneverasto  successions";  Meaupou: 
"I  should  desire  to  do  away  with  wills  and  entails";  Flammermont,  "Le 
Chanc.  Meaupou,"  p.  618. 

'  The  origin  of  the  reservation  is  neither  in  the  Roman  law  nor  in  th<? 
Feudal  law.  Cf.,  however,  Glasson,  VII,  555.  But  it  is  from  the  feudal 
sj'stem  of  ownership  that  the  prohibition  of  alienating  to  persons  "de  main- 
morte"  or  "de  mainforte"  is  derived  ("nee  militi,  nee  clerico,  nee  domni 
religionis,"  D.  Vaissette,  V,  891),  which  prohibition  is  an  important  restriction 
upon  the  right  of  disposal,  looked  upon  in  the  eighteenth  century  as  estab- 
lished in  the  interest  of  the  State  and  in  that  of  the  family.  Cf.-  the  pre- 
amble of  the  Edict  of  August,  1749  (prohibition  of  provisions  of  last  \y\\\  for 
the  benefit  of  persons  in  "mortmain,"  necessity  for  the  authorization  by  letters 
patent  of  acquisitions  for  a  consideration;  the  ratification  of  Parliament  is  suffi- 
cient for  pious  or  charitable  foundations  (masses  or  obituals,  charity  schools, 
etc.).  Cf.  Civil  Code,  910  (administrative  reservation) :  "T.  A.  C,  Norm.,"  57; 
Adami,  "Race.  d.  Leggi  s.  le  manimorte";  Britz,  519;  Tissier,  "Tr.  des  Dons 
et  Legs  aux  Etabliss.  publics,"  1896.  Theses:  especially  Coulondre,  1886;  Pitois, 
1890;  G.  de  Lapradelle,  1895.  Cf.  frequent  allusions  in  the  Customs  to  the 
consideration  of  piety  or  pity.  —  As  to  the  restrictions  upon  alienation  in  the 
interest  of  the  feudal  lord,  cf.  Auffroy,  pp.  461,  527,  615,  663.  Indivisibility 
of  fiefs,  cf.  J.  d'Ibelin,  c.  144  et  seq.;  "Gr.  Cout.  de  Norm.,"  36;  Guilhiermoz, 
"Orig.  de  la  Nobl.,"  p.  200;  Maffert,  "Apanages,"  "These,"  1900;  Lagouelle, 
"These,"    1902,   p.    227    (Normandy). 

*  Customary  reservations,  allusion  to  the  divergencies  in  the  Customs  of 
customary  legal  share  {Pothier,  "Don.  entre  vifs,"  no.  245),  as  contrasted  with 
the  legal  share  of  the  law  (Roman).  Legal  share  of  compassion  for  the  benefit 
of  younger  children  when  all  the  father's  possessions  are  encumbered  with 
an  entail  for  the  benefit  of  the  eldest:  "Novella,"  39,  1;  Boissonade,  p.  314 
(bibl.).  German  law:  "Pflichtheil,"  legal  share;  "Notherben,"  necessary 
heirs.  Russia:  indisposability  even  by  gift  of  the  patrimonial  possessions: 
Lehr,  "Dr.  Civ.  Russe,"  II,  44. 

738 


Topic  7]  RESERVATION   AND   LEGAL   SILA.RE  [§  515 

stricted  to  personal  belongings;  movables  and  acquests  having 
been  left  to  the  free  disposition  of  individuals/  contrary  to  the  old 
law.  It  allows  relatives  of  the  same  lineage  to  keep  the  personal 
belongings  which  have  been  disposed  of  by  will  ^  in  excess  of  a 
certain  quantity.  It  should  also,  it  seems,  have  authorized  them 
to  reclaim  possessions  of  this  same  nature  which  had  been  given 
"inter  vivos";  but,  although  quite  a  number  of  Customs  adopted 
this  solution,^  it  was  rejected  by  the  common  law,  undoubtedly 
because  gifts  —  and  especially  with  regard  to  the  impediments 
with  which  they  were  surrounded  —  seemed  less  to  be  feared  than 
did  legacies.^  The  amount  of  the  reservation,  that  is  to  say,  of 
the  portion  of  the  intestate  succession  which  could  not  be  dis- 
posed of  by  will  to  the  prejudice  of  the  heirs,  and  which  is  reserved 
for  the  latter,  varied  according  to  the  Customs.^    From  the  thir- 

1  Cf.  Champeaux,  "Gr.  Encyclop.,"  see  "Reserve";  Loysel,  305;  Beau- 
mayioir,  12,  3:  "Jostice,"  12,  3,  1  (p.  224);  "Cartul  de  Notre-Dame,"  no.  177; 
Desmares,  149;  "Cout.  Not.,"  7;  "Paris,"  292;  Ferriere  on  this  article;  "Confer, 
des  Cout.  de  Guenois,"  fo.  682.  —  Customs  in  which  the  reservation  affects  both 
personal  belongings  and  acquests:  (a)  because  of  a  survival  of  the  old  law, 
"Norm.,"  418;  "Metz,"  8,  7;  (&)  as  a  consequence  of  the  tendency  to  confuse 
the  reservation  with  the  legal  share:  "Bourg.,"  VII.     Customs  called  those 

.  of  subrogation,  in  which,  if  there  are  no  personal  belongings,  the  reservation 
affects  movables  and  acquests:  "Bret.,"  203;  "Anjou,"  340;  "Maine," 
352;  "Touraine,"  238;  "Poitou,"  181  et  seq.;  "Sens,"  68,  etc.;  Kohler,  p.  256; 
R.  de  Lacombe,  see  "Reserve." 

2  Gifts  by  way  of  reference  legacy  are  hard  to  reconcile  with  a  system 
of  family  joint  ownership  such  as  the  one  that  served  as  a  basis  for  the  reserva- 
tion. On  the  other  hand,  they  can  without  difficulty  be  applied  to  acquests 
and  movables,  and  it  is  especially  with  regard  to  these  that  the  legal  share 
must  have  been  introduced.  The  general  tendency  of  the  Customs  is  to 
prohibit  these  gifts,  but  certain  of  the  Customs  authorize  them.  P.  de  Fon- 
taines, 23,  10,  11,  14,  with  regard  to  the  legal  share  allows  a  child  to  be  left 
the  same  that  could  be  left  to  a  stranger.  Beaumanoir,  12,  3;  14,  13,  15; 
70,  5:  the  father  cannot  leave  more  to  one  child  than  to  another;  however, 
he  may  give  one  of  them  the  power  of  disposing  of  the  movables  and  acquests: 
"Olim,"  II,  807  (no.  170);  "T.  A.  C,  Norm.,"  10;  "Summa  Norm.,"  35; 
"Et.  de  Norm.,"  pp.  9,  11,  79;  "Gr.  Cout.,"  pp.  365,  369,  372;  J.  d'lhelin, 
144,  146,  152;  27,  29;  "Clef  des  Assises,"  191  et  seq.;  "C.  des  Bourg.,"  192; 
"Guenois,"  fo.  702;  D'Espinay,  "F6od.  et  Dr.  civ.,"  p.  305;  Boissonade, 
p.  231;  Albert,  p.  513;  Van  de  Walle,  "Th^se,"  1903,  p.  161  (Flanders).  — i?". 
de  Daroca,  Munoz,  542. 

'  Sometimes  by  adhering  to  the  Germanic  tradition,  and  sometimes  by 
applying  the  Roman  theory  of  the  legal  share.  "Blois,"  166  ("formerly  it  was 
allowable  to  make  a  gift  'inter  vivos'  of  all  possessions,  which  custom  seemed 
to  be  too  harsh");  Kohler,  p.  2.53  et  seq.  As  to  the  rule,  "To  give  and  to 
withhold  is  invalid,"  see  texts  in  Kohler,  p.  261.  Gifts  made  upon  one's 
deathbed  were  frequently  likened  to  dispositions  of  last  will,  ibid.;  Loysel, 
666;  "Gr.  Cout.,"  p.  364;  "Paris,"  277,  etc. 

*  Glanville,  VII,  1  (prohibition  of  gifts  "in  extremis";  "Norm.,"  427; 
Blackstone,   French  translation.   III,   327   (heirlooms). 

^  Importance  of  the  reservation  of  two-thirds  (partition  into  thirds): 
"Et.  de  St.  Louis,"  I,  10,  68;  "Touraine,"  "Aniou,"  "Maine,"  "Troves." 
etc.;  "Bord.,"  57  eUej.  — One-half,  "Reims,"  1481,  Arts.  78,  95;  "Laon,"  60, 

739 


§  515]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

teenth  century  it  is  usually  four-fifths  of  the  personal  belong- 
ings;^ only  one-fifth  may  be  bequeathed,  whatever  the  number 
and  quality  of  the  heirs  who  survive.^  It  is  necessary  to  go  back 
to  the  time  of  the  death  ^  in  order  to  see  whether  the  reservation 
has  been  impaired  or  not,  and  then  proceed,  if  there  is  occasion  to 
do  so,  to  the  curtailing  of  excessive  donations.^  The  heirs  to  the 
personal  belongings  ^  (that  is  to  say,  the  relatives  called  to  the  in- 
testate succession)  alone  have  the  right,  but  only  upon  condi- 
tion that  they  have  neither  renounced  nor  been  excluded,®  for  the 
reservation  is  nothing  but  the  intestate  succession  less  the  dis- 

etc.  —  Three-quarters,  "Lorraine,"  11,  13;  "Sedan,"  etc.  —  Sometimes  there 
is  a  distinction  made  between  fiefs  and  villein  tenures:  "Noyon,"  17,  etc. — 
No  reservation,  "Luxembourg,"  1623,  X,  1;  "Douai,"  "Orchies,"  etc.; 
Kohler,  p.  250;  Britz,  p.  725;  Brocher,  206.  —  Portugal:  the  amount  which  can 
be  disposed  of  consists  of  one-fifth  of  the  personal  belongings  and  one-third 
of  the  acquests  (thirteenth  century);  and  later  on  of  one-third  of  all  the 
possessions  (sixteenth  century);  Jordao,  "R.  h.  Dr.,"  1857,  500.  Spain,  cf. 
"L.  Wis.,"  Sicily,  one-third:  Brilnneck,  II,  95. 

1  P.  de  Fontaines,  33,  12,  15;  Beaumanoir,  12,  3,  5,  6,  17,  18;  44,  55;  14, 
15,  31;  70,  5;  "Jostice,"  12,  3,  1;  Desmares,  70,  149,  237;  "Cout.  Not.," 
VII,  143;  "Gr.  Gout.,"  II,  20;  "Olim,"  III,  2,  1010;  "A.  C.,  Picardie," 
73;  "Amiens,  A.  G.,"  4:  "An  inheritance  can  only  be  divided  into  fifths 
once,"  —  that  is  to  say  that  the  fifth  part  can  only  be  given  once  so 
long  as  the  inheritance  stays  in  the  same  family;  cf.  1507,  1  and  4;  1567, 
46,  57;  Viollet,  "Et.  de  St.  Louis,"  I,  128  (in  1244).  — This  system  of  the' 
conferred  fifth,  which  is  that  of  the  Ile-de-France  and  of  Orleans,  prevailed 
perhaps  because,  with  its  chsposable  quantity,  wliich  did  not  vary  and  was 
not  very  great,  it  was  more  like  the  old  law  and  at  the  same  time  satis- 
fied the  new  needs  that  were  responsible  for  the  success  of  the  legal 
share.  —  Loysel,  306;  "Valois,"  85;  Beaumanoir,  12,  6;  Auffroy,  p.  619. — 
Variations  in  Boissonade,  p.  258;  Albert,  p.  513.  —  MuTioz,  509;  one-fifth  for 
the  eldest. 

2  However,  certain  Gustoms  drew  a  distinction  according  to  whether  there 
were  or  were  not  children:  "Norm.,"  414^28;  cf.  392;  "Eure,"  101  et  seq.; 
"Maine,"  332  et  seq.;  "Anjou,"  321  et  seq.;  "Touraine,"  233  et  seq. — On  the 
Norman  system  of  partition  by  thirds:  "T.  A.  G.,  Bret.,"  206;  Glanville,  VII, 
5;  Brilnneck,  "Siciliens  Stadtr.,"  II,  6.  —  Loysel,  158:  " The  proper  dower  for 
children  is  a  customary  legal  share";  post,  "Dower." 

^  For  example,  to  ascertain  whether  there  are  or  are  not  children.  —  Loysel, 
329:  the  personal  belongings  included  in  the  reservation  are  free  and  clear 
of  debts;  but  the  "Gout,  de  Paris,"  295,  prescribes  that  the  debts  shall  be 
paid  out  of  all  the  possessions,  without  any  distinction. 

■*  The  action  for  curtailing  is  a  real  action,  for  the  personal  belonging  is 
looked  upon  as  not  having  left  the  patrimony  of  the  deceased.  The  donee 
would  thus  not  have  the  power  to  pay  oiT  in  money  the  heir  entitled  to  the 
reservation  in  order  to  keep  the  immovable.  Some  Gustoms  only  give  the 
person  entitled  to  the  reservation  a  personal  right:  "Audenarde,"  20,  9; 
"Termonde,"  18;  "Furdes,"  20,  8;  Ferriere,  see  "Retranchement." 

*  (Customs  of  the  stock,  etc.).  The  testator  should  leave  four-fifths  of 
the  paternal  personal  belongings  to  the  paternal  relatives  and  four-fifths  of 
the  maternal  personal  belongings  to  the  maternal  relatives. 

^  Beaumanoir,  12,  17:  disinheritance  does  not  make  one  lose  the  four- 
fifths  of  the  personal  belongings.  As  to  the  daughter  who  lives  "luxuriose," 
"T.  A.  C.,  Norm.,"  10,  or  the  son  who  marries  without  the  consent  of  his  father, 
see  Fertile,  IV,  109;  "Usat.  Barchin.,"  77,  78. 

740 


Topic  7]  RESERVATION   AND   LEGAL   SHARE  [§  olG 

posable  quantity.^  If  there  are  no  heirs  there  is  no  reserva- 
tion.^ Thus  the  fate  of  a  particular  legacy  made  in  a  particular 
will  would  depend  upon  divers  circumstances, —  variations  in  what 
goes  to  make  up  the  inheritance  itself,  the  existence  of  heirs,  and 
the  ability  of  the  latter  to  collect  the  inheritance.  The  right  of 
those  for  whom  the  reservation  is  made  is  thus  dependent  upon 
events,  but  it  cannot  be  taken  away  from  them  by  the  deceased, 
and  thus  it  appears  as  a  survival  of  the  family  joint  ownership. 

§  516.  Th9  Legal  Share  ^  ("legitime"),  in  use  among  the  Gallo- 
Romans  ^  and  in  countries  of  written  law,^  is  a  Roman  institution 

1  It  may  be  encumbered  with  an  entail  (Lauribre,  on  Loysel,  341); 
this  would  not  be  so  with  regard  to  the  legal  share:  Benedicti,  "Rep.  in  c. 
Rayn.,"  II. 

^  The  most  distant  collateral  has  a  right  to  the  reservation,  but  the  Treas- 
ury has  not:  "Gr.  Gout.,"  II,  40;  "Et.  de  St.  Louis.,"  I,  68. 

*  This  is  the  "quarta  legitimse  partis"  of  the  Roman  law.  Girard,  p.  856 
(an  amount  left  to  the  estimation  of  the  judge  originally,  and  later  fixed  in 
imitation  of  the  heir's  fourth  of  that  wliich  the  heir  would  have  had  if  there 
had  been  an  intestacy).     As  to  this  amount  in  the  Justinian  law  cf.  post. 

The  heir's  fourths  ("quarte  Falcidie,"  or  the  "quarte  trebelhanique") 
which  the  appointed  heir  could  keep,  —  the  former  out  of  legacies,  the  other 
out  of  trusts,  —  were  not  admitted  in  countries  of  Gustoms,  where  the  ap- 
pointment of  the  heir  did  not  take  place.  In  countries  of  written  law  they 
were  applied;  better  still,  the  appointed  heir,  when  he  was  entitled  to  the 
legal  share,  could  add  to  it  one  of  these  fourths,  excepting  if  the  testator  had 
forbidden  it:  "Nov.,"  1,  2,  3;  "Auth.,  Sed  cum  test.";  Faber,  "Inst.,"  fo.  69; 
Pasquier,  "Docum.  s.  Boussagues,"  p.  29  (in  1334);  Dig.  X,  3,  26,  16  and 
18;  Masuer,  XXXII;  Pasquier,  "Inst.,"  p.  459;  "Ord."  of  1735,  56-60.  Juris- 
prudence was  hostile  to  this,  excepting  in  Bordeaux:  see  Ferriere;  Britz, 
p.  733;  Briinneck,  p.  99;  Lattes,  p.  265  (bibl.);  "Siete  Part.,"  VI,  11. 

*  The  legal  share  is  often  incorrectly  called  "Falcidia":  Paul,  4,  5,  2,  3; 
3,11;  "God.  Th6od.,"5,  1,4;2, 19,  leise^.;  "L.  Rom.  Gur.,"  8,  5,  etc.;  "Nov. 
Th.,"  11,  1,  6;  Papien,  10,  4;  31,  2;  45,  2,  7:  Zeumer,  "Z.  S.  S.  G.  A.,"  IX,  26; 
Stouff,  "N.  R.  H.,"  1887,  273  ("Falcidia"  in  sales).  On  the  Edict  of  Theo- 
dosius,  33,  cf.  Auffroy,  p.  102.  The  "Papien,"  45,  6,  refuses  to  give  the 
"querela  inoff.  test."  to  brothers  (cf.  "God.  Th^od.,"  2,  19,  1).  In  the  form- 
ula; and  deeds  the  "Falcidia"  is  reserved  to  the  heirs:  Mnrculfc,  II,  17;  Lin- 
denbr.,  72;  "Touraine,"  17;  "Andec,"  41;  Will  of  Widerad,  721;  of  Abbo, 
739  ("Falcidie"  to  a  first  cousin),  etc.  Frequently,  however,  in  the  preamble 
of  a  will  there  is  a  statement  of  the  right  to  dispose  freely  for  the  benefit  of 
the  Ghurch,  of  one  of  the  relatives,  or  of  third  parties:  "Andec,"  37,  etc.  Cf. 
the  barbarian  law  (father  and  son  coparceners).  The  "Brachyl.,"  II,  23, 
24,  and  the  "Petrus,"  I,  12,  18,  repeat  the  system  of  Justinian  in  his  "Nov.," 
18  and  115:  the  "Falcidie"  includes  one-third  of  all  the  jiossessions  of  the  as- 
cendants if  there  are  four  descendants  at  least,  or  one-half  if  there  are  more; 
the  ascendants  have  a  fourth;  the  person  entitled  to  the  legal  share  may  be 
deprived  even  of  his  fourth  by  disinheriting  him  in  those  cases  provided  for  by 
the  law.  The  "Petrus"  does  not  speak  of  a  fourth  share  for  the  benefit  of 
the  brothers.  It  does  not  require  that  this  should  be  left  "jure  institutionis." 
—  Italy:  Crespo  de  Valdaura,  "Obs.,"  24  (does  not  e.xist  in  Aragon). 

*  Cf.  Romanists,  such  as  J.  Faber,  etc.;  Serres,  II,  17;  Julien,  "Gom.  s.  les 
Statuts  de  Prov.,"  I,  483;  Henrys,  "CEuvres,"  see  Table;  R.  de  Lacotube 
(bibl.);  Roussilhe,  op.  cit.  —  Variations  in  the  C'ustoms  of  the  South.  The 
"querela  inoff.  test."  and  the  action  supplementary  to  the  legal  share  ("God. 
Th6od.,"  2,  19,  4;  "God.  Just.,"  "de  inoff.  test.","  30)  are  both  admitted. 
"Bourg.,"  1459,  7,  3  (the  legal  share  should  be  left  as  a  part  of  the  right  of 

741 


§  51G]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

unknown  to  the  Germanic  law  and  to  the  very  old  Customary  law.^ 
It  was  introduced  in  the  countries  of  Customs  towards  the  middle 
of  the  thirteenth  century,-  to  be  made  use  of  in  cases  where,  the 
deceased  having  few  personal  belongings  or  having  none  at  all,  the 
reservation  was  nothing  or  else  was  insignificant.  By  giving  "  by 
devise  all  his  possessions  to  strangers  and  nothing  at  all  to  his 
children,"  if  the  latter  are  poor  and  if  the  testator  has  nothing  to 
reproach  them  with,  he  is  lacking  in  the  "officium  pietatis,"  in  his 
duty  to  support  them.^  "One  should  assist  one's  heirs  because  of 
compassion."  But  it  was  not  necessary  in  order  to  do  this  to  an- 
null  the  will  entirely;  ^  they  limited  themselves  to  revoking  it  in 

the  appointment  of  the  heir  under  penalty  of  annuUing  the  will).  Cf.  "L. 
Rom.  Burg.,"  45.  On  the  contrary,  the  "Cout.  de  Bergerac,"  1322,  only 
admits  the  supplementary  action:  Serves,  II,  18;  "Bayonne,"  11,  9;  "Bord 
N.  C,"  57,  63,  75;  Guyot,  "  Preterition." — Restrictions  with  regard  to  daughters 
who  have  received  a  marriage  portion  and  who  have  not  always  a  right  to 
their  legal  share:  Jarriand,  p.  254;  Auffroy,  p.  665.  —  Appointment  for  a 
small  sum:  "Montpellier,"  55.  (the  childi-en  must  be  contented  with  this). 
"Toulouse,"  123,  a,  b,  c,  d,  ed.  Tardif:  the  mother  can  disinherit  her  chil- 
dren, the  father  must  leave  them  at  least  5  sous  (in  order  to  show  that  he 
has  not  forgotten  them):  Tardif,  "Dr.  Priv6  au  XIIP  s."  p.  68  (error);  La- 
bourt,  XI,  3;  Sole,  26,  3;  "Metz,"  8,  8;  Henrys,  5,  4,  41;  "Dec.  Cap.  Tolos.," 
438.  "Biscaye":  a  tree,  a  "real,"  or  a  tile.  —  Some  Customs  of  the  South 
organize  a  true  reservation:  "Bord.  A.  C,"  59,  94,  145;  "N.  R.  H.,"  1890,  400. 
—  Italy  {Pertile,  IV,  105):  the  Customs  often  do  away  with  the  legal  share 
("Aoste,"  V,  9,  53:  "In  this  country  there  is  no  form  or  image  of  the  legal 
share");  but  they  do  not  allow  the  sons  to  be  left  out,  and  the  mother  can- 
not take  from  them;  in  Venice  the  legal  share  consists  of  one-third  of  the 
possessions. 

1  P.  de  Fontaines,  34,  10:  "It  would  be  too  cruel  and  inhuman  for  anybody 
to  say  that  a  father  could  give  all  his  chattels,  movables  and  jointly  acquired 
property  to  any  one  of  his  children  that  he  wished  .  .  .  this  would  be  con- 
trary to  the  written  laws."  Here  one  sees  at  once  the  imprint  of  the  Roman 
system.  Cf.  also  Beaumanoir  loc.  cit.  At  Liege  a  customary  third  part,  Britz, 
p.  726.  Cf.  also  P.  de  Fontaines,  34,  1  et  seq.  The  legal  share  was  all  the 
more  necessary  for  the  younger  children  because  the  right  of  primogeniture 
left  them  with  very  little.  Boissonade,  p.  307.  —  Cf.  "Cout.  Not.,"  "Et.  de 
St.  Louis,"  I,  10. 

^  P.  de  Fontaines,  34,  30;  Beaumanoir,  12,  17  et  seq.,  37;  70,  5;  "Jostice," 
p.  225;  "Or.  Cout.,"  II,  40  (p.  364);  "L.  d.  Dr.,"  no.  931;  Boutaric,  I,  103, 
and  Charondas'  notes  (Order of  1558,  1583,  etc.);  "A.  C,  Paris,"  silent;  "N.  C," 
298  (one-half  of  the  hereditary  share  of  each  child);  Dumoulin,  "Cons.," 
29,  35;  Lauriere,  Ferriere,  on  "Paris,"  298;  de  Guenois,  "Conf.  des  Cout.," 
ibid.;  Kohler,  p.  272;  see  Guyot,  R.  de  Lacombe;  Pothier,  "Don.  entre  vifs," 
212.  —  Cf.  the  dower  of  children;  see  Guyot,  §  II;  "  Normandie,"  399  (customary 
third,  fitting  marriage). 

'  P.  de  Fontaines  loc.  cit.;  Ricard,  "Don.,"  no.  1463. 

''  P.  de  Fontaines,  34,  10;  Beaumanoir,  12,  20.  Cf.  "querela  inoff.  test." 
at  Rome,  Girard,  p.  857;  and  in  countries  of  written  law  annulment  of  the 
will  in  case  the  persons  entitled  to  the  legal  share  are  passed  over.  "  Ord."  of 
1735,  51  et  seq.  In  countries  of  Customs  the  person  entitled  to  the  legal 
share  has  never  any  right  to  anything  excepting  his  legal  share.  Cf.,  how- 
ever, provisions  "ab  irato."  As  to  Germany,  see  Stobbe,  V,  238. — Juris- 
})rudence,  at  least  after  the  sixteenth  century,  had  no  difficulty  in  admitting 
of  actions  for  the  annulment  of  wills  for  the  benefit  of  the  heirs  because  of 

742 


Topic  7]  RESERVATION   AND   LEGAL   SHARE  [§516 

part  for  the  benefit  of  "needy  near  relatives,"  that  is  to  say, 
descendants  and  ascendants,^  or  even  in  the  sixteenth  century  de- 
scendants alone.^  They  were  given  a  right  to  maintenance  affecting 
the  movables  and  acquests,  and  this  right,  which  was  not  very 
exact  at  first,  became  fixed  after  the  manner  of  the  Roman  legal 
share.  The  judge  determined  the  amount  (during  the  period  of 
Beaumanoir)  in  such  a  way  that  the  "  heirs  could  live  reasonably 
and  have  their  maintenance  according  to  their  condition  in  life."  ^ 
Differing  in  this  from  the  reservation,  which  tends  to  keep  the  pos- 
sessions in  the  family,  the  legal  share  is  to  be  accounted  for  by  the 
duty  between  near  relatives  of  mutual  assistance;  it  is  the  supreme 
accomplishment  of  the  obligation  to  support,^  In  the  fourteenth 
century  the  amount  seems  to  be  fixed  by  custom  at  half  of  the 
movables  and  property  acquired  jointly,  at  least  if  one*  is  to  be- 
lieve the  "Grand  Coutumier  de  France";  ^  this  figure  is  found  once 
more  in  the  sixteenth  century  in  the  Custom  of  Paris.^  If  the 
legal  share  was  impaired,  the  reduction  affected  gifts  "^  as  well  as 
legacies,  so  as  better  to  assure  maintenance  to  the  one  who  had  a 
right  to  it.    Conversely,  the  right  to  the  legal  share  only  existed 

undue  influence  or  suggestion,  by  connecting  them  with  the  Roman  law: 
M.  Bernard,  "Obs.  de  Droit,"  p.  593;  see  Ferriere,  Guyot;  Domat,  3,  1,  5,  25; 
Pothier,  "Don.  test.,"  no.  96;  Furgole,  "Test.,"  5,  3.  "  Ord."  of  Aug.,  1735, 
Art.  47.  As  the  Civil  Code  is  silent  on  this  subject,  a  wiU  could  only  be  an- 
nulled to-day  for  obvious  fraud. 

1  P.  de  Fontaines,  34,  11;  Beaumanoir,  12,  20.  Cf.  exclusion  of  ascendants 
from  fiefs  and  personal  belongings:  Glasson,  "Inst.  Anglet.,"  II,  275. 

2  "Paris,"  298;  Declaration  of  Feb.,  1731,  34  et  seq.;  see  Ferriere  (bibl.). 
In  countries  of  written  law  there  is  a  legal  share  for  the  benefit  of  ascendants 
(one-tliird)  and  even  for  the  benefit  of  brothers  and  sisters  if  the  deceased  has 
appointed  as  heir  a  "persona  turpis."  Special  jurisprudence  of  the  Parlia- 
ment of  Toulouse,  ibid.,  Argou,  II,  13;  Boissonade,  288. 

'  Beaumanoir,  12,  37;  70,  5.  Elsewhere  it  is  suggested  that  the  stranger  be 
given  the  same  share  as  the  child,  Beaumanoir,  12,  19;  P.  de  Fontaines,  34,  10. 

*  The  obligation  to  support  existing  between  relatives  is  connected  with 
the  Roman  law  by  our  old  authors  (see  Ferriere,  bibl.);  "Tract,  univ.  jur.," 
VIII;  Surdus,  "De  Alimentis";  Ferraris,  "Bibl.  Canon.,"  see  "Alim."  Also 
Romanists,  such  as  Voet,  etc.;  F.  de  Vizcaya,  XXIII,  but  it  was  also  included 
in  the  old  Customary  law.     Theses,  for  example,  Geny,  etc. 

*  "Gr.  Cout.,"  II,  40  (p.  364) :  a  text  standing  by  itself;  does  it  contemplate 
the  disposal  of  his  or  her  share  of  the  community  made  by  one  of  the 
spouses? 

6  "Paris,"  298.  Cf.  "Auth.  de  triente  et  semisse";  "Nov.,"  18,  115, 
followed  in  countries  of  written  law  and  in  some  of  the  Customs  ("Reims," 
"Melun,"  etc.);    "Petrus"  I,  10. 

^  Reduction  in  the  following  order:  "universal "  legacies  (or  general  legacies, 
no  distinction  being  made),  special  legacies,  gifts  "inter  vivos"  or  marriage 
portions  (see  Guyot,  8,  2),  beginning  witli  the  most  recent  one  (even  gifts  to 
the  Church).  As  to  the  appointment  by  contract,  see  the  "  Ord."  of  1731,  34,  36. 
Controversy  in  case  of  the  insolvency  of  the  donee.  The  real  action  against 
third  parties  who  have  acquired  part  of  the  inheritance.  The  legal  share 
should  be  paid  in  kind. 

743 


§  51G]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

in  case  the  reservation  were  insufficient ;  ^  if  four-fifths  of  the  per- 
sonal belongings  were  equal  to  a  half  of  all  the  possessions  (in- 
cluding personal  belongings),  the  person  entitled  to  the  legal  share 
could  claim  nothing  out  of  the  movables  and  property  acquired 
jointly;  if  the  four-fifths  were  equal  to  a  quarter,  the  legal  share 
was  a  quarter;  and  so  on  and  so  forth.  Moreover,  when  there 
were  several  persons  entitled  to  the  legal  share,  they  did  not  take 
the  half  of  the  inheritance  in  one  lump  in  order  to  partition  it 
among  themselves,  but  each  one  of  them  was  entitled  to  half  of 
his  hereditary  share,  because  the  legal  share  was  individual. 

§  517.  By  what  Right  did  one  collect  the  Legal  Share?  ^  —  As 
heir?  or  as  near  relative,  rather  after  the  manner  of  a  creditor? 
Two  systems  here  came  slowly  into  existence,  the  first  in  countries 
of  written  law,  and  even  among  many  of  the  jurists  of  the  countries 
of  Customs;  the  other  was  rare  excepting  in  countries  of  Cus- 
toms. —  First  System.  "  Legitima  est  pars  bonorum,  non  heredi- 
tatis."  ^  —  The  "inheritance"  includes  the  assets  and  the  liabilities 
which  are  inheritable;  the  "properties"  are  what  is  left  once  the 
debts  have  been  paid,  or  even  that  which  is  outside  of  the  inherit- 
ance, such  as  things  already  given  away.  He  who  has  a  right  to 
the  properties  is  not  seised  of  them  like  an  heir,  is  not  compelled 
to  accept  the  possession  of  the  inheritance  in  order  to  claim  them, 
and  is  not  held  for  debts  "ultra  vires."  There  is  no  need  to  accept 
the  inheritance  in  order  to  "take  steps  for  the  reduction"  of  gifts 
and  legacies.  One  may  keep  (by  way  of  an  exception)  the  legal 
share  with  which  one  is  invested,  even  though  one  has  received 
gifts  from  the  deceased,  provided  one  renounces  all  right  of  suc- 
cession. So  also  one  is  authorized  to  keep,  if  there  be  occasion 
to  do  so,  the  "disposable  quantity"  (by  the  same  right  as  a 
stranger  to  whom  it  had  been  given  would  have  had);  which 
means  that  a  man  might  cumulate  his  legal  share  and  the  dispos- 
able quantity.  The  legal  share  is  reckoned  upon  what  remains 
after  having  paid  the  debts  and  funeral  expenses;  the  one  entitled 
to  the  legal  share  is  not  treated  as  a  preferred  creditor;  but  he  is 

^  Beaumanoir,  12,  18;  P.  de  Fontaines,  34,  10. 

^  Aubey  and  Rau,  VII,  §  6S2;  Demolovihe,  XIX,  nos.  47  et  seq.;  Machelard 
"R.  h.  Dr.,"  VIII,  682;  XIX,  245  (reproduced  in  "Melanges");  Dramard, 
"Bibliogr.  du  Code  Civ." 

3  Ricard,  "Don.,"  1463,  contrasts  the  reservation,  to  which  one  has  a 
right  as  heir,  and  the  legal  share,  "which  is  especially  dependent  upon  the 
fact  that  tlie  beneficiary  is  one  of  the  children  and  the  obligation  which  is  in- 
cumbent upon  a  father  to  leave  sustenance  to  those  whom  he  has  brought 
into  the  world";  Polhier,  "Don.  test.,"  no.  189. 

744 


Topic  7]  RESERVATION   AND    LEGAL    SHARE  [§518 

not  held  for  the  debts  of  the  inheritance  out  of  his  own  assets 
(unless  he  has  accepted  the  inheritance),  nor  out  of  properties 
which  have  been  given  him  by  the  deceased  and  are  subject  to  be 
reduced,  for  these  do  not  form  a  part  of  the  creditor's  security.^ 
—  Second  system.  "Nemo  legitimam  habet  nisi  qui  heres  est."  ^  — 
The  legal  share  is  confused  with  the  inheritance  like  the  reserva- 
tion whose  complement  it  is.  Thus  one  is  seised  of  it  b}^  opera- 
tion of  law;  ^  one  has  a  right  to  it  only  on  assuming  the  character 
of  heir,  and  one  is  held  for  the  debts  "ultra  vires"  of  the  inherit- 
ance unless  one  has  accepted  under  the  privilege  of  inventory. 
But  the  logical  consequences  of  this  system  were  not  all  accepted, 
even  by  its  partisans.  It  was  admitted  that  no  one  could  claim 
his  legal  share  by  way  of  an  action  for  reduction  of  the  possessions 
which  had  been  bequeathed,  unless  he  assumed  the  character  of 
heir  in  the  same  way  as  though  the  reservation  was  concerned. 
The  child  who  had  received  a  gift  or  a  legacy  should  not  have 
been  allowed  to  keep  his  legal  share  of  the  possessions  which  had 
been  given  or  bequeathed  to  him  in  case  he  renounced  the  suc- 
cession; but  he  was  authorized  to  do  so  in  imitation  of  the  first 
system,^  and  he  was  allowed  to  have  the  cumulation  of  the  dispos- 
able share  and  the  legal  share, ^  The  person  entitled  to  the  legal 
share  did  not  have  to  contribute  to  the  debts  of  the  inheritance 
out  of  the  possessions  arising  from  the  reduction;  for  it  was  said 
they  only  re-entered  the  inheritance  in  an  entirely  relative  way, 
with  relation  to  the  inheritance  alone,  and  not  with  relation  to 
the  creditors  of  the  deceased.^ 

§  518.  The  Revolution  and  the  Civil  Code.  —  Far  from  con- 
templating the  proclamation  of  the  freedom  to  make  a  will  (a 
natural  corollary,  it  would  seem,  of  individual  ownership),  the 
Revolutionary  Assemblies  came  almost  to  suppress  the  will,  — 
the  theoretical  lawfulness  of  which  they  contested  and  the  effects 
of  which  they  feared  in  practice,  —  to  put  in  its  place  the  new 

1  The  action  for  the  attainment  of  the  legal  share  does  not  make  one  the 
heir.     Cf.,  however,  "Nov.,"  115  and  92;  Fiirgole,  "Test.,"  c.  8. 

2  Ricard,  1117;  Dumoulin,  on  "Paris,"  125,  1  (I,  884).  Cf.  "Nov.,"  115, 
c.  3. 

3  Dumoulin,  "Cons.,"  36,  12;  on  "Berry,"  18,  3;  Boissonnde,  279. 

*  Pothier,  "Don.  entrc  vifs,"  nos.  217,  226;  "Don.  test.,"  no.  189;  see  Guyot, 
1,  3;  7,  3.  The  man  who  renounces  in  order  to  keep  the  gift  that  he  has 
received  is  included  in  the  number  uj)()n  which  the  reckoning  of  the  legal 
share  is  based:  Boissonnde,  p.  292  (difficulties). 

^  Excepting  in  the  Customs  of  absolute  equality:  "Paris,"  307;  "Orleans," 
273;  "  Ord."  of  1731,  34;  Ricard,  "Don.,"  979;  Lehrun,  2,  3,  I;  Pothier,  "Don.," 
217.  —  Dumoulin's  theory;  Ginoulhiac,  op.  cit.;  Cuenot,  p.  205. 

6  Ricard,  "Don.,"  979;  Lebrun,  2,  3,  1,  39  (Order  of  1685). 

745 


§  518]  INTESTATE  SUCCESSION,  GRATUITOUS  CONVEYANCES  [Chap.  IV 

system  which  they  had  inaugurated.^  A  memorable  discussion 
on  the  right  to  make  a  will  took  place  in  1791  in  the  Constituent 
Assembly.^  IMirabeau  (in  the  discourse  which  death  prevented 
him  from  delivering),  Tronchet,  Dupont  de  Nemours  .and  Robes- 
pierre upheld  the  thesis  of  Rousseau's  ''social  contract,"  that 
"Ownership  dies  with  the  man."^  According  to  them,  the  right 
to  make  a  will  is  contrary  to  nature;  the  freedom  to  make  a  will 
is  also  as  injurious  to  the  State,  because  it  facilitates  the  for- 
mation of  the  great  domains  of  the  aristoci:ary  of  nobles,  as  it  is  * 
fatal  to  the  family  because  it  encourages  the  despotism  of  the 
father  over  his  children,^  and  because  it  gives  rise  to  jealousy  and 
hatred  between  the  latter  as  a  consequence  of  the  inequality  of 
fortune.  They  did  not,  however,  go  so  far  as  to  propose  that  the 
right  to  make  a  will  should  be  abolished;  but  they  wished  to  re- 
duce the  amount  which  could  be  disposed  of,  —  Mirabeau  to  one- 
tenth  of  the  possessions,  Tronchet  to  one-fourth.  Cazales  and  a 
few  orators  from  the  South  defended  the  system  of  the  countries 
of  written  law  with  sufficient  energy  for  the  discussion  to  remain 
without  any  immediate  results.  In  their  eyes  the  right  to  make  a 
will  was  as  natural  as  the  right  to  sell  or  mortgage,  the  effects  of 
which  are  not  limited  to  the  life  of  the  owner.  One  only  works 
and  economizes  and  acquires  wealth  in  order  to  be  able  to  dispose 
freely  of  the  possessions  which  one  has  acquired.  This  is  an  in- 
dispensable attribute  and  one  of  the  most  efficacious  sanctions  of 
the  paternal  power.    Finally,  the  inequality  of  partitions  arouses 

1  Laferriere,  "Hist,  des  Principes  de  la  R^vol.,"  p.  222;  Brocher,  p.  291; 
Boissonade,  p.  350;  Albert,  p.  643;  Sagnac,  pp.  213,  350;  Aron,  "N.  R.  H.," 
1901,  606. 

2  Summing  up  in  Aron,  "N.  R.  H.,"  1901,  478.  Cf.  "Arch.  Parlem.," 
XXIV. 

'  Montesquieu,  "Esprit  des  Lois,"  26,  6,  15  (the  father  is  not  held  bound  to 
leave  his  fortune  to  his  children:  he  is  under  no  further  obligation  to  them 
after  he  has  brought  them  up).  The  theory  of  Grotius,  according  to  wliich 
intestate  succession  was  nothing  more  than  an  implied  will,  was  in  favor  of 
the  freedom  to  bequeath  by  will. 

*  The  Revolutionary  laws  declared  that  immoral  or  unlawful  conditions 
inserted  in  gifts  (contrary  to  the  old  law,  by  which  these  conditions  were 
annulled)  or  in  wills  should  be  treated  as  though  they  had  never  existed,  in 
order  that  individuals  should  not  revive  in  their  own  interests  institutions 
which  had  been  abolished:  Laws  of  Sept.  5-12,  1791;  5th  Brum.,  year  II,  Art. 
1;  17th  Niv.,  year  II,  Art.  12;  Civil  Code,  Art.  900;  Bartin,  "These,"  1887. 

'  "He  who  only  respects  his  father  because  he  hopes  for  a  greater  share 
of  his  succession  comes  pretty  near  to  awaiting  with  impatience  the  time 
when  he  shall  take  it,  and  pretty  near  to  hating  his  father."  Robespierre, 
April  5,  1791.  It  is  certain  that  good  sons  need  no  rewards,  and  that  bad 
sons  will  always  be  met  with,  whether  or  not  there  exists  freedom  to  dispose 
by  will.  But  how  many  others  there  are  upon  whom  the  prospect  of  being 
disinherited   has   its   effect! 

746 


Topic  7]  RESERVATION   AND   LEGAL   SHARE  [§518 

the  industry  of  younger  sons  and  allows  of  extensive  farming, 
which  is  only  advantageous  in  certain  localities.  As  we  see,  the 
question  of  the  right  to  make  a  will  was  bound  up,  in  the  thoughts 
of  the  members  of  the  Constituent  Assembly,  with  the  question 
of  the  right  of  primogeniture  and  trust-entails.^  The  ideas  of 
Mirabeau  and  the  majority  of  the  members  were  the  inspiration 
for  the  laws  passed  by  the  Convention,  of  the  5th  Brumaire  and 
the  17th  Nivose,  year  II.  They  allowed  one  to  dispose  by  gift 
or  legacy  only  of  one-tenth  of  one's  possessions  if  the  deceased  had 
heirs  in  the  direct  line,  and  of  one-sixteenth  if  he  had  collaterals.^ 
This  minimum  quantity  could  not  be  conferred  upon  one  of  the 
heirs  by  way  of  a  gift  as  a  reference-legacy;^  this  had  the  effect 
of  preventing  parents  from  stripping  their  children  for  the  benefit 
of  one  of  them,  and  it  also  favored  the  parceling  of  the  prop- 
erty. The  right  of  granting  as  a  gift  was  thus  found  to  be  re- 
duced to  almost  notliing.  In  the  reaction  which  took  place  against 
the  philosophical  and  political  tendencies  of  the  Constituent  As- 
sembly and  of  the  Convention,  this  system  was  abandoned  in  order 
to  substitute  for  it  a  compromise  between  the  rights  of  the  in- 
dividual and  those  of  the  family.  This  was  the  natural  termina- 
tion of  the  course  of  the  old  legislation,  and  one  which  rather 
agreed  with  the  common  opinion.  The  Law  of  the  4th  Germinal, 
year  VIII  (March  25,  1800),  allowed  one  to  give  or  bequeath 
one-fourth  of  one's  possessions,  if  there  were  less  than  four  chil- 
dren; one-fifth  if  there  were  four;  and  so  on,  reckoning  the  donee, 
in  order  to  determine  the  quantity  which  could  be  disposed  of, 
as  one  child  more;  gifts  by  way  of  reference-legacy  for  the  ben- 
efit of  those  capable  of  inheriting  were  authorized.  The  Civil 
Code  had  but  to  simplify  these  rules  (Art.  913  et  seq.).  This  law 
gives  the  name  of  the  "reservation"  to  the  portion  of  the  inherit- 
ance which  cannot  be  disposed  of,  understanding  by  this  that  it 
is  a  fraction  of  the  intestate  succession,  and  that  one  must  be  the 
heir  in  order  to  have  a  right  to  it.    However,  the  modern  institu- 

'  The  customary  tradition  in  favor  of  the  preservation  of  the  possessions 
in  the  family  was  first  of  all  based  entirely  upon  the  idea  of  family  joint  owner- 
ship; following  this  it  found  a  support  in  the  feudal  system  (right  of  primogeni- 
ture); and  finally  it  seemed  to  be  justified  to  a  certain  extent  by  the  interest 
of  the  monarchy  itself  (entails). 

^  Law  of  the  5th  Brum.,  year  II,  Art.  11;  Law  of  the  17th  Niv.,  j'ear  II, 
Art.  16  et  seq.  See  for  more  details,  and  on  the  subject  of  canceling  gifts, 
the  authors  cited  ante.  As  to  disinheriting,  Brandt,  op.  cit.,  p.  88,  and  Decree 
of  March  7,  1793. 

'  Law  of  the  5th  Brum.,  year  II,  Art.  9;  Law  of  the  17th  Niv.,  year  II, 
Art.  9. 

747 


§  518]  INTESTATE  SUCCESSION,  GRATUITOUS   CONVEYANCES  [Chap.  IV 

tion  is  not  justified  because  of  the  old  idea  of  the  preservation 
of  possessions  in  the  family,  but  by  the  duty  which  near  rela- 
tives have  to  sustain  and  help  one  another;  in  fact,  the  collaterals 
have  no  right,  the  disposable  quantity  varies  according  to  the 
number  and  the  quality  of  the  heirs  who  are  interested;  and, 
finally,  the  reduction  affects  gifts  as  well  as  legacies.  This  system 
had  only  approval  in  France,  until  the  school  of  Le  Play  ^  came 
to  claim  the  freedom  to  make  a  will  as  it  existed  in  England,^ 
with  the  object  of  restoring  the  paternal  authority;  and  until 
the  socialist  schools  had  attacked  the  right  to  make  a  will,  and 
even  intestate  succession,  because  they  are  hostile  to  individual 
ownership.^ 

1  Details  in  Boissonade,  pp.  362,  664;  Albert,  p.  785.  "These"  upon  the 
family  possessions  or  the  homestead:  Verdelot,  Petiet,  Serves,  etc. 

2  English  law-  Freedom  of  disposal  by  will,  right  of  primogeniture  and 
substitutions  (entails) :  such  are  the  most  noticeable  characteristics  of  the  Eng- 
lish system  of  succession  of  our  own  times.  The  freedom  to  dispose  by  will 
has  oiily  existed  since  the  time  of  the  Tudors  (Statute  of  Henry  VIII  allowing 
one  to  dispose  by  will  of  one's  tenures  in  socage;  assimilation  under  Charles 
II,  of  military  tenure  to  socage  tenure):  Coke,  "Inst.,"  II,  32.  In  the  time  of 
Glanville  (I,  7)  it  was  forbidden  to  dispose  of  immovables  by  will;  one  could 
only  give  "inter  vivos"  a  reasonable  portion  ("quandam  partem  terrse")  in 
order  to  furnish  a  marriage  portion  for  one's  daughter  or  by  way  of  "  frankal- 
moign," etc.  The  chattels  were  divided  into  three  parts,  —  one  for  the  widow, 
another  for  the  heirs,  and  the  third  for  the  deceased;  it  was  only  tliis  last  por- 
tion which  could  be  bequeathed  (as  to  tliis  division  c/.  "Share  of  the  Dead," 
§  490,  supra,  of  this  chapter).  Among  the  Anglo-Saxons  it  was  already  men- 
tioned by  Bede:  Pollock  and  Maitlayid,  II,  247.  Magna  Charta,  1215,  c.  20, 
also  gave  the  widow  and  children  a  right  to  a  reasonable  share:  Bracton, 
fo.  60  et  seq.  If  one  of  the  parties  does  not  exist  the  division  still  takes  place 
by  thirds,  and  not  by  halves.  But  Bracton  tells  us  that  even  in  his  time  in 
London  there  existed  a  special  custom  allowing  relatives  to  dispose  freely 
of  their  movable  possessions:  "Were  it  not  for  this,"  says  he,  "not  a  citizen 
would  seek  to  enrich  himself;  and  his  cliildren,  who  would  be  sure  of  having 
the  father's  fortune,  would  live  in  debauchery."  Cf.  Pollock  and  Maitland,  II 
350.  Thus  it  is,  no  doubt,  that  tluough  special  customs  the  rule  of  partition 
into  thirds  came  to  be  abandoned.  Fitzherhert  maintains  still  that  the  legal 
share  exists  by  virtue  of  the  "consuetudo  regni";  but  after  his  time  it  is  only 
met  with  as  an  exception.  As  to  immovables,  for  a  long  time  they  could 
only  be  disposed  of,  at  least  by  act  of  last  will,  by  indirect  methods  and  by 
having  recourse  to  the  practice  of  uses.  We  have  seen  that  from  the  time 
of  the  Tudors  this  was  quite  otherwise.  The  freedom  to  dispose  by  will  was 
thus  established  in  England  through  a  reaction  of  a  national  character  against 
its  institutions;  but  in  uniting  with  entails  and  the  right  of  primogeniture 
it  has  lost  some  of  its  importance.  Cf.  Houard,  "Anc.  Lois,"  I.  244,  288; 
"Cout.  Anglo-Norm.,"  II,  136,  445;  III,  272. 

3  Mentha,  "Le  Droit  de  tester,"  1891;  Thiehault,  "Thdse,''  1899  ("Le  Prin- 
cipe de  la  Propri6t6  individuelle  devant  I'Assembl^e  Constituante"). 


748 


Topic  l] 


PRANKISH  PERIOD 


[§519 


CHAPTER  FRTE 
SYSTEM   OF  PROPERTY  BETWEEN  SPOUSES 

Topic  1.  Frankish  Period. 

Topic  2.  Dower  and  Other  Rights  by  Survivorship. 

Topic  3.  Systems  without  Community.     . 

Topic  4.  Systems  of  Community. 


Topic  1.    Prankish  Period 


§  519.  System    of    the    Husband's 
"Mundium." 

§  520.  "Pretium    Nuptiale"    or   Ger- 
manic Marriage  Portion. 

§  521.  The   Gift   of  the   Morning  or 
"Morgengabe." 

§  522.  Roman  Marriage  Portion,  "Fa- 
derfium,"  "Maritagium. 

§  523.  Rights  of  the  Husband  during 
the  Marriage. 


§  524.  Dissolution  of  Marriage. 

§525.  The  Same.  — (A)  The  "Mor- 
gengabe." 

§526.  The  Same.  — (B)  The  "Pre- 
tium." 

§  527.  The  Same.  —  (C)  The  Disposal 
of  the  Share  brought  by  the 
Wife. 

§  528.  Rights  of  the  Wife  over  Pro- 
perty acquired  jointly. 


§  519.  System  of  the  Husband's  "  Mundium."  —  Just  as  in 
the  old  Roman  law,  where  the  woman  was  "in  manu  mariti,"  so 
in  the  old  Germanic  law  she  found  herself,  body  and  possessions, 
under  the  "mundium"  of  her  husband;  ^  this  was  a  natural  con- 
sequence of  the  old  organization  of  the  family.-  In  proportion  as 
the  latter  gives  way,  —  and  there  is  scarcely  need  to  say  that 
evolution  has  varied  according  to  peoples,  and  we  are  here  too 
often  limited  to  systematic  outlines,  —  the  rights  of  the  woman 
come  to  light,  little  by  little.  Sometimes,  as  in  the  Roman  law, 
certain  possessions  are  taken  out  of  the  husband's  power  {separate 

1  "Cod.  Dipl.  Langob.,"  I,  134,  no.  74  (in  769);  "Cartul.  Lang.,"  no.  16; 
TMvenin,  no.  48.  The  Lombard  law  here  shows  us  a  belated  phase  of  evolu- 
tion; it  is  in  this  form  that  we  make  use  of  it;  we  do  not  pretend,  as  we  have 
been  reproached  with  doing,  to  generalize  its  solutions  in  order  to  extend 
them  absolutely  to  other  barbarian  peoples:  Brandileone,  "Arch.  Giur.," 
67,  2. 

2  Cf.  especially  as  to  the  evolution  of  the  Germanic  law,  Heusler,  §  134 
(bibl.  and  discussion  of  systems).  The  vigorous  synthesis  that  is  found 
there  shows  how  hard  the  problem  is  and  how  far  we  are  from  being  in  accord 
as  to  the  details,  and  even  as  to  the  whole. 

749 


§  519]  SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

maintenance);  sometimes  there  is  formed  a  partnership  of  pos- 
sessions between  the  spouses,  which  is  more  or  less  extensive 
{community  of  possessions);  in  the  former  ease  the  rights  of  the 
husband  are  restricted  to  certain  possessions;  in  the  second  case 
they  extend  over  all  the  possessions.  In  the  primitive  system/ 
which  is  a  system  without  community,  there  can  scarcely  be  any 
question  of  the  possessions  of  the  wife;  there  only  exists  one  in- 
heritance, which  is  in  the  hands  of  the  husband.  But  from  a  very 
early  time  —  from  the  time  of  the  establishment  of  the  barbarians, 
it  would  seem  —  three  classes  of  possessions  over  which  the 
woman  has  claims  are  distinguished:  the  Germanic  marriage  por- 
tion, the  gift  of  the  morning,  and  the  marriage  portion  in  the 
Roman  sense,  or  the  share  brought  by  the  wife.^ 

§  520.    "  Pretium  Nuptiale  "  or  Germanic  Marriage  Portion.^  — 

1  We  shall  not  reconsider  the  celebrated  passage  of  Tacitus,  18,  which  hag 
been  so  widely  discussed.  Cf.  "Acad.  16g.  Toulouse,"  1900,  169.  And  as 
opposed  to  it:  Lefebvre,  II,  354;  Meynial,  "N.  R.  H.,"  1898,  p.  165  (an  interest- 
ing analysis  of  the  old  Germanic  epic  poems,  the  "Eddas,"  "Gudrun");  I  dare 
not  generalize  and  come  to  the  conclusion  with  the  author  that  "the  woman 
keeps  her  possessions  and  can  leave  her  husband  at  her  will."  Brunhild  as 
well  as  Fredegonde  seem  to  me  not  to  come  under  the  general  rule.  Cf.  as 
to  the  Celtic  law,  Collinet,  "R.  Celt.,"  1896,  320. 

2  One  finds  a  matrimonial  system  which  recalls  that  of  the  barbarian 
laws  in  the  Babylonian  Code  of  Hammourabi,  about  2250  B.C.:  "Mem. 
de  la  D616g.  en  Perse,"  IV;  "Textes  Elamites,"  2d  series,  by  V.  Scheil,  1902; 
Winckler,  "Gesetze  Hammurabis,"  1902;  Dareste,  "J.  des  Sav.,"  1902;  Meiss- 
ner,  "Beitr.  z.  altbabylon.  Privatr.,"  1893;  "Beitr.  z.  Assyriologie,"  1898; 
"N.  R.  H.,"  1886,  113  (the  notes  of  Bunanitun);  G.  Cohn,  "Gesetze  Hammur- 
abis" 1903. 

3  "Dos,"  and  afterwards,  at  least  in  the  ninth  century  {Thevenin,  nos.  175, 
179;  "Capitul,"  see  Index  "Dotalicium,"  "  Dotarium,"  "Doarium").  "Dona- 
tio nuptialis,"  "  sponsalitia  largitas,"  "  sponsahcium."  "Antifactum"  (ante- 
nuptial gift);  Thevenin,  no.  48,  "  Wittemon,"  "  widem"  ("Burg."),  "Weotuma" 
(Anglo-Saxon),  "witthum"  in  the  later  law,  cf.  the  Gothic  "vidan,"  to  bind; 
"wette"  in  modern  German.  Cf.  "vidnum,  Meta"  (Lombard),  cf.  "Miethe," 
"Lohn,"  modern  German;  "  medfio  "  means  "meta-feo"  ("pecus");  "  Munds- 
ket"  (Prisons);  "Scaet,"  "ceap,"  "gyft"  (Anglo-Saxon,  meaning  "pretium."  — 
"Tanado,"  "tandono"  (etymology?  Brunnerop.  cii.,  p.  547)  only  in  the  Prank- 
ish formulae:  Marculfe,  II,  15,  16;  Merkel,  15,  17,  19,  22;  Bignon,  6;  Zeumer, 
"N.  Arch.,"  VI,  33.  — "Arrhse,"  Thevenin,  no.  135;  "L.  Wis.,"  see  index;  Du 
Cange,  id.  Later  Catalonian  documents  (" screix,"  meaning  increase)  —  " Oscu- 
lum,"  Roman  custom  of  betrothals:  "Cod.  Th6od.,"  3,  5,  5  (6)  and  Godefroy, 
on  this  text;  Terhdlian,  "de  vel.  virg.,"  10.  Syrio-Roman  book,  45;  Mitteis, 
"Reichsr.,"  225;  Roziere,  no.  219;  Zeumer,  "Porm.,"  p.  163;  Thevenin,  no. 
177;  F.  Viejo,  5,  1,  4;  "oscle,"  "oclage,"  "ousclage";  see  Ragueau,  Guyot; 
Viollet,  421,  810;  Laboulaye,  130;  Esmein,  "M61.,"  62;  Meynial,  "N.  R.  H.," 
1896,  527;  Stouff,  "N.  R.  H.,"  1887,  249.  Tacitus,  18;  Tertullian,  "ad  uxor.," 
2,  8;  "Nov.  Th6od.,"  I,  14,  1,  4  (gifts  "ante  nuptias,"  as  contrasted  with 
the  "Altera  dos");  Papien,  21,  3;  "Burg.,"  62,  2;  "Wis.,"  3,  2,  8;  5,  3; 
6,  1;  cf.  4,  5,  2;  "Ep.  ^Egid.,"  3,  5,  1  (registration  of  marriage  portion);  "L. 
Rom.  Cur.,"  24,  20;  26,  1,  etc.;  "Sal.  Cap..extr.,"  7,  8;  "Rib.,"  37;  F.  Angers, 
1  ("Dos,"  meaning  "libellus  dotis").  Brunner,  "Prank.  Rom.  Dos,"  546, 
shows  how  the  word  "dos"  has  changed  in  its  meaning  and  is  used  in  the 

750 


Topic  l]  FIL\NKISH  PERIOD  [§  520 

(A)  This  is  the  purchase  price  paid  by  the  husband  to  the  relatives 
of  the  wife  on  the  occasion  of  the  betrothals  in  the  primitive  law.^ 
It  belonged  absolutely  to  the  relatives,  and  the  wife  had  at  first  no 
claim  over  it;  from  her  husband  she  received  the  gift  of  the  morn- 
ing; from  her  relatives,  a  few  articles  of  clothing  or  ornament; 
these  constituted  her  entire  assets.  —  (B)  But  the  law  of  the  sec- 
ond stage  ^  reversed  the  roles  by  giving  the  woman  all  or  a  large 
part  of  the  "pretium,"  ^  which  was  changed  into  a  marriage  por- 
tion (called  "ex  marito");  whereas  the  relatives  only  had  a 
small  portion,  or  were  even  reduced  to  the  symbolical  price,  such 
as  the  sou  and  denier  among  the  Franks.'*  The  providing 
of  a  marriage  portion  is  none  the  less  always  considered  as 
a  requisite  condition  of  the  validity  of  the  marriage;  the  wife 
whose  husband  has  not  given  her  a  marriage  portion  is  only  a  con- 
cubine; and  the  Church  compels  this  doctrine  to  prevail,  so  much 
so  that  the  law  of  the  Ripuarians  ^  and  a  few  other  barbarian 

barbarian  texts  to  designate  the  possessions  given  by  the  husband  to  the 
wife  at  the  time  of  the  marriage;  he  has  especiallj^  insisted  upon  the  custom 
of  the  Lower  Empire,  —  aheady  pointed  out  by  Esmein,  "Mel.,"  p.  66, — 
which  was  to  appoint  as  one's  marriage  portion  the  antenuptial  gift:  "Cod. 
Theod.,"  3,  5,  13;  "Nov.  Theod.,"  II,  14,  1,  3  (in  439).  Thus  is  to  be  ac- 
counted for  the  precept  of  Valentinian  III,  "Nov.,"  34,  9;  and  of  Majorien, 
"Nov.,"  6,  9,  according  to  which  the  marriage  portion  should  not  be  less  than 
the  antenuptial  gift.  Cf.  "Wis.,"  3,  1,  5;  Brandileone,  "Don.  pr.  n.,"  1892; 
"Arch.  Giur.,"  67,  2. 

1  "Sax.,"  40;  "Bai.,"  7,  6;  "Wis.,"  3,  2,  8;  4,  6;  "Burg.,"  12;  "Alam.," 
54,2;  "  iEthelbert,"  77,83;  "Ina,"  31;  Cassiodore,  "Y&r.,"  4:,  1;  Procope,"De 
B.  G.,"  IV,  20;  Isidore,  "Orig.,"  I,  24;  Gntmn,  "R.  A.,"  421.  Cf.  "mun- 
dium"  and  "meta"  in  the  Lombard  laws:  Fertile,  III,  314;  "mundr"  in  the 
Scandinavian  law:  Dareste,  "Etudes,"  348,  etc.;  Glasson,  "Inst.  Anglet.," 
I,  116;  Theses:  Roche,  1899;  Lafourcade,  1902;  J oly,  "Dr.  familial  dans  I'ls- 
lamisme,"  p.  79. 

2  A  very  irregular  formation,  made  with  hesitation  and  survivals,  and  of 
very  diverse  dates  according  to  locahty:  Braiidilione,  "Arch.  Giur.,"  67,  2. 

^  Marriage  portion  conferred  by  delivery  (Roziere,  220,  228;  Stouff,  account 
of  the  "Rapyjolst.  Urk."  in  the  "Arm.  de  I'Est,"  1901;  delivery  of  the  marriage 
portion  to  the  wife  with  a  wisp  of  straw,  with  the  hands  and  the  mouth,  pub- 
licly upon  the  road  of  the  empire)  or  "per  cartam":  "Rib.,"  37;  Roziere, 
219  et  seq.  ("Libelh  dotis").  Cf.  Brunner,  op.  cit.,  and  "Rom.  und  Germ. 
Urkunde,"  1880.  Necessity  for  the  "gestis  alligatio"  for  the  antenuptial 
gift,  and  even  for  the  marriage  portion,  contrary  to  the  Justinian  law,  which 
even  dispenses  with  the  necessity  for  registering  the  antenuptial  gift:  "Cod. 
Th6od.,"  3,  5  ("Int."  and  "Epit.");  "  F.  Andec,"  1  ("N.  Arch.,"  XI,  328); 
"Sen.,"  39,  40;  "Bitur.,"  15;  Roziere,  221  et  seq. 

*  "  Burg.,"  66  (partition  by  thirds  if  the  wife  has  neither  father  nor  brothers) ; 
86,  2;  62;  69;  42;  52;  F.  Lindenbr.,  75;  "Rib.,"  37;  "Alam'.,"  55;  "Bai.,"  14,  7; 
"Cnut,"  II,  74;  "Alfred,"  12;  "Roth.,"  178  and  on  "Liut.,"  89,  114,  126 
et  seq.  Under  Rotharis  the  wife  has  a  right  to  the  "meta"  as  an  exception; 
under  Liutprand,  as  a  general  rule,  and  then  her  parents  only  receive  a  sym- 
boUcal  price  (4  deniers:  Fumagalli,  "Cod.  dipl.,"  69,  in  853);  Rive,  "De 
dote,"  1852;  Brandileone  "Arch.  Giur.,"  67,  2. 

*  "Rib.,"  37,  2;  50  sol  {cf.  "Wergeld"  of  200  sol,  and  "Rib.,"  36,  11:  25 

751 


§  520]  SYSTEM    OF   PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

laws  ^  established  a  legal  marriage  portion  if  there  were  no  mar- 
riage portion  given  by  agreement.  The  custom  of  the  marriage 
portion  "ex  marito"  is  to  be  accounted  for  ^  outside  of  the  Roman 

head  of  cattle  or  4  horses,  etc.);  "Alam.,"  55,  3:  40  sol;  "Bai.,"  14,  6  et  seq.; 
7,  14.  On  the  "justicia"  of  the  Bavarian  law  cf.  Adler  op.  cit.,  and  account; 
given  hy  Br uniier.  Brunner,  "Z.  S.  S.,  G.  A.,"  1895,231;  "Forsch.,"  482; 
"Fr.  r.  Dos.,"  569  et  seq.;  "Festg.  f.  D.,"  41  et  seq.,  maintaias  that  among  the 
Salians  in  the  absence  of  a  special  agreement  the  marriage  portion  is  equal 
to  one-tliird  of  the  possessions  (movables  or  immovables)  of  the  husband, 
and  that  the  word  "tertia"  is  even  the  technical  term  designating  this  cus- 
tomary marriage  portion:  Pardessus,  "DipL,"  no.  179  (sixth  century);  Mar- 
culfe,  11,17;  Thevenin,  nos.  53,  175,  179  (in  833,  etc.);  "Cart.  Langob.," 
"M.  G.  H.,  L.  L.,"  IV,  595  ("tertia,"  marriage  portion  of  the  Salians,  and 
"quarta,"  marriage  portion  of  the  Lombards).  In  the  "Cap.  extr."  of 
"L.  Sal.,"  7  and  8,  the  marriage  portion  of  62  "sols"  or  one-half,  is  per- 
haps the  customary  "tertia,"  for  it  seems  that  it  is  equal  to  one-third  of 
the  "Wergeld,"  and  the  "Wergeld"  itself  corresponds  to  the  value  of 
a  free  man's  share  of  land  ("Hufe").  According  to  Ficker,  III,  376 
et  seq.,  the  normal  marriage  portion  is  one-half.  Heusler,  II,  310.  It 
is  curious  that  this  quantity  of  a  third  should  be  exactly  equal  to  the 
right  wliich  the  widow  has  over  acquests.  Cf.  post,  "  Dower  of  One- 
third,"  and  ante,  "Share  of  the  Dead":  "Anc.  Us.  d'Anjou,"  ed.  Marnier, 
§  75. 

1  If  there  is  no  marriage  portion,  then  there  is  no  marriage,  and  the  chil- 
dren are  illegitimate:  Mojorien,  "Nov.,"  6,  9  (in  458)  (Oriental  precedents, 
Mitteis,  "Reichsr.,"  225).  Although  abrogated  by  Severus  in  463,  the  rule 
was  applied  in  Gaul.  Letter  from  Leo  the  Great  to  Rusticus  of  Narbonne 
in  458  or  459  {Mansi,  VI,  405),  received  in  "Capit.,"  VII,  105  (VI,  133; 
VII,  179,  389,  463;  4,  2),  in  Gratian,  2d  p.,  C.  30,  q.  5,  c.  6  (pretended  Council 
of  Aries,  ante,  Chap.  II,  §  101):  "  Nullum  sine  dote  fiat  conjugium."  Mar- 
jorien  had  in  mind  the  Roman  marriage  portion;  Pope  Leo,  the  antenuptial 
gift  "in  dotem  redacta,"  the  later  ecclesiastical  sources,  and  the  Germanic 
marriage  portion  (up  to  the  twelfth  century):  "Wis.,"  3,  1,  9  (Eswig);  12,  3, 
8;  Papien,  37;  "Cod.  Theod.,"  3,  7,  3.  The  "Libelli  dotis,"  Roziere,  nos. 
2i9  et  seq.,  include  every  sort  of  conferring  of  marriage  portion  by  the  husband 
upon  the  wife.  According  to  the  Germanic  conception  of  marriage,  if  there 
were  no  betrothals  there  could  be  no  regular  union,  or,  at  any  rate,  no  honor- 
able union:  Dareste,  "Etudes,"  309,  324. 

2  The  antenuptial  gift  of  the  Lower  Empire  is  derived  from  the  very  com- 
mon usage  of  the  giving  of  presents  by  the  husband  to  the  wife  before  the 
marriage;  this  usage  itself  originated  in  the  marriage  by  purchase.  Why 
did  it  become  generally  accepted,  and  why  did  it  grow  into  a  regular  insti- 
tution? Cf.  Esmein,  "M61.,"  p.  58;  Mitteis,  "Reichsr.,"  p.  256;  Larocque, 
"Le  Don  du  Fianc^,"  "These,"  1898;  Lefebvre,  II,  223;  Meynial,  "N.  R.  H.," 
1897,  134  (scarcity  of  paraphernaUa) ;  Dareste,  "Etudes,"  41.  The  Roman 
practice  was  readily  blended  with  the  Barbarian  law,  which,  like  many  of 
the  old  legislations,  transformed  the  purchase  price  into  a  marriage  portion 
for  the  benefit  of  the  wife.  The  preambles  to  the  formulae  conferring  mar- 
riage portions  invoked  the  "Lex  Romana"  and  the  "consuetudo  pagi," 
which  were  in  accord  with  one  another  in  spite  of  the  divergence  between 
their  sources.  Cf.  Bachmnnn,  "Corpus  juris  Abessinorum,"  1890.  Dareste, 
"Etudes,"  4,  etc.:  the  marriage  portion  given  by  the  husband  is  met  with 
in  Egypt  (with  the  supremacy  of  the  wife  in  the  household  which  greatly 
scandalized  the  Greeks),  among  the  Jews  under  the  name  of  "Khetouba" 
(a  minimum  of  200  "zouzes"  or  deniers  for  the  daughter,  and  100  for  the 
widow,  Talmud),  among  the  Arabs,  among  the  Hindus,  and  in  the  Cau- 
casus, where  since  1866  the  father  gives  the  daughter  one-third  of  the  price 
that  he  has  received  for  her:  Hanoteau  and  Letourncux,  "Kabylie,"  II, 
155. 

752 


Topic  l]  PRANKISH  PERIOD  [§  520 

and  barbarian  precedents  in  two  ways:^  (a)  having  become  a 
widow,  the  wife  would  have  found  herself  without  resources  at  the 
mercy  of  the  husband's  heirs,  and  almost  in  the  same  situation  as 
a  slave;  the  marriage  portion  from  the  husband  assured  her  better 
treatment  and,  if  need  be,  provided  for  her  maintenance;  (6)  under 
a  system  where  all  the  possessions  of  the  wife  passed  to  the  hus- 
band, where  they  were  all  merged  by  the  marriage  relation,  and 
where  the  woman  had  no  paraphernalia,  the  Germanic  marriage 
portion  seems  like  an  equitable  compensation  for  the  benefit  of  the 
wife;  ^  the  husband  appropriates  for  her  a  portion  of  his  estate 
in  return  for  what  he  gains  over  her  possessions  or  with  the 
assistance  of  her  possessions;  this  motive  became  more  pressing  in 
proportion  as  the  rights  of  inheritance  of  the  wife  assumed  im- 
portance and  a  portion  of  the  acquests  had  to  be  conferred  on  her. 
Originally,  undoubtedly,  the  marriage  portion  "ex  marito"  only 
consisted  in  movable  objects;^  but  deeds  and  formulae  contain 
long  lists  in  which  there  figure,  together  with  gold  and  silver, 
horses  and  clothing,  pieces  of  land,  and  even  domains  with  the 
slaves  who  cultivate  them.'*    Among  the  Lombards  and  the  Visi- 

1  These  reasons  seem  to  us  to  result  from  an  analysis  of  the  institution. 
Formulae  and  deeds  simply  consider  the  marriage  portion  as  the  necessary 
consequence  of  marriage,  a  requisite  condition  for  its  regularity  (I  marry 
you,  and  that  is  why  I  give  to  you).  Cf.  Roziere,  no.  240;  no.  238.  The 
expression,  "pro  amore  dulcitudinis"  (Roziere,  no.  229,  232),  etc.,  alludes  to 
the  "affectus  maritalis,"  —  that  is  to  say,  to  the  lawful  marriage  excluding 
concubinage.  Cf.  Lefebvre,  II,  426;  Heusler,  II,  294:  the  husband  shows  by 
these  means  that  his  wife  shall  be  "loco  filiae,  socio  vit£e."  In  Norway  the 
increase  of  the  marriage  portion  or  the  "tilgiof"  conferred  by  the  husband 
generally  consists  of  one-half  of  the  marriage  portion.  The  Jewish  "Khe- 
touba"  seems  intended  to  prevent  the  husband's  abusing  his  right  of  repudiat- 
ing his  wife. 

2  This  is  the  idea  which  could  very  well  be  expressed  by  the  word  "tanodo" 
of  the  Frankish  formulae  if  one  were  to  accept  the  reading  of  "tanto  dono" 
in  certain  documents  in  the  sense  of  a  gift  that  is  the  equivalent  of  the  marriage 
portion.  It  is  too  bad  that  neither  this  reading  nor  tliis  meaning  seems  to 
be  correct.  But,  leaving  aside  all  question  of  terminology,  it  is  nevertheless 
true  that  the  Germanic  marriage  portion  has  become  the  "quid  pro  quo" 
for  the  Roman  marriage  portion;  it  is  quite  certain  that  the  prospect  of  having 
a  large  marriage  portion  must  have  determined  the  betrothed  man  to  show  his 
generosity.  However,  they  did  not  go  so  far  as  to  say  that  the  two  marriage 
portions  must  be  equal,  and  the  Germanic  marriage  portion  still  continued 
to  be  given  before  the  marriage,  in  the  same  way  as  the  Roman  antenuptial 
gift,  to  which  it  was  similar.     Cf.  "Wis.,"  3,  1,  5;  Caesar,  "Bell.  Gal.,"  VI,  20. 

3  Cf.  the  exclusion  of  the  wife  from  succession  to  the  land.  Originally, 
the  wife  only  has  a  marriage  portion  consisting  of  movables  and  a  right  to 
the  "Beisitz,"  that  is  to  say,  a  right  not  to  be  expelled  from  the  conjugal 
hearth.     Post,  "Dv/elling-house." 

/  Rozihre,nos.  219  et  seq.;  Thevenin,  noa.  177  (11  "villje"),  174.  Gals- 
winthe  receives  five  towns  in  Aquitaine,  among  others,  Limoges,  Cahors 
and  Bordeaux  ("Capit.,"  ed.  Bor.,  I,  13).  The  Jewish  "Khetouba"  was 
only  actually  paid  at  the  time  of  the  dissolution  of  the  marriage. 

753 


§  520]  SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

goths  a  maximum  which  the  marriage  portion  could  not  exceed 
was  fixed  in  imitation  of  the  testamentary  "  disposable  quantity."^ 
§  521.  The  Gift  of  the  Morning  or  "  Morgengabe  "  ^  consisted 
originally  in  merely  a  few  simple  gifts  ^  which  it  was  customary 
for  the  husband  to  give  to  the  wife  the  day  after  the  marriage.^  It 
consisted,  on  the  part  of  the  husband,  in  a  ratification  of  the  con- 
jugal union,  a  renunciation  of  the  right  to  repudiate  his  wife  in 
cases  where  according  to  the  biblical  expression  she  did  not  find 
favor  before  him;  these  cases  were  those  in  which  she  had  undis- 
closed defects,^  and  one  of  the  latter  among  many  of  the  primi- 
tive peoples  is  the  loss  of  virginity;  thus,  they  sometimes  called 
the  "Morgengabe,"  "pretium  prtemium  virginitatis."  ^  In  the 
Christian  reaction  against  the  facility  of  divorce,  the  gift  of  the 
morning,  losing  its  early  reason  for  existing,  was  changed  into 
something  which  corresponded  to  the  Germanic  marriage  por- 
tion; ^  like  the  latter,  it  included  movables  and  immovables,  and 

1  "Liut.,"  7  (in  717)  ("morgincap"  of  one-fourth  or  more),  88  ("meta" 
of  400  or  300  "sols"  at  the  most),  according  to  the  position  of  the  interested 
parties:  Fertile,  III,  316;  "Wis.,"  3,  1,  5  ("Chindaswind")  in  645:  one-tenth 
of  the  husband's  possessions.  Cf.  "Ulp.,  Reg.,"  15;  Zeumer,  "N.  Arch.," 
loc.  cit.;  Brandileone,  "Arch.  Giur.,"  67,  2. 

2  Greg.  Tours,  IX,  20:  "tam  in  dote  quam  in  morganegiba,  hoc  est  matu- 
tinaUdono";  "Rib.,"  37;  "^thelbert,"  80;  "Roth.,"  199,  etc.;  see  Dm  Ca^i^e, 
Haltaus.  "Morgengabe"  is  feminine,  but  the  barbarian  laws  say  "ipsum 
morgincap";  Thevenin,  no.  178;  Gengler,  "De  Morg.,"  1843;  Zedekauer, 
"II  Dono  di  Mattino"  (Florence),  1886  ("Miscell.");  Heusler,  II,  297; 
Schroeder,  "Gut.,"  I,  106;  Huber,  IV,  380. 

'  "Alam.,"  52,  6:  the  amount  of  12  "sols,"  and  the  wife  establishes  the 
existence  of  it  by  swearing  with  her  hand  upon  her  breast:  Huber,  IV,  355; 
"Sal.,"  102,  Hessels. 

*  Passing  from  hand  to  hand:  "Rib.,"  37. 

6  The  engaged  man  did  not  even  know  his  betrothed  as  a  general  thing. 
Cf.  Mahometan  customs. 

8  Cf.  Juvenal,  VI,  199:  "quod  prima  pro  nocte  datur."  —  As  to  the  impor- 
tance connected  with  virginity,  cf.  "  Deut.,"  xxii,  14  et  seq.  Queer  provision  of 
the  Capitulary  of  757,  10;  "L.  Walliaj,"  II,  20;  Michelet,  "Orig.,"  p.  58;  "  Tris- 
tan et  Iseult";  "Aethelbirth,"  77;  Westermarck,  p.  341;  Post,  II,  94;  Fertile, 
111,317;  Heusler,  II,  298  (bibl.);  "Alam.,"  53.  Widows  were  entitled  to  the 
"Morgengabe";  however,  some  of  the  more  recent  Customs  ("Augsbourg," 
"Bdle")  would  not  give  it  to  them  because  of  a  hatred  for  second  marriages; 
when  allowed  to  widows  it  is  sometimes  given  the  name  of  "Abendgabe," 
or  gift  of  the  evening:  Osenbriiggen,  "Stud.,"  76  (Switzerland);  Amira, 
"Rccht.j"  162.  "Morgengabe"  given  by  the  widow  to  the  man  whom  she 
marries  if  he  is  not  a  widower:  Huber,  IV,  380.  —  Perhaps  we  must  look  upon 
it  as  a  sort  of  composition  to  be  paid  by  the  husband  as  a  consequence  of 
the  abduction.  Heusler  sees  in  it  rather  an  honor  that  is  done  the  wife,  a 
sign  that  she  will  not  be  treated  as  a  slave,  but  as  the  mistress  of  the  house 
(the  treasure  of  the  "  Niebelungen "  was  the  "Morgengabe"  of  Kriemhilt). 
Dareste,  "Etudes,"  108  (Persians);  288  (Sweden:  a  giving  before  12  witnesses 
and  a  price  varying  according  to  the  station  of  the  spouses);  324  ("Unfe" 
in  Norway);  "Nouv.  Et.,"  239,  370  (Wales). 

^  The  "Morgengabe"  is  met  with  in  the  case  of  irregular  unions,  thus 

754 


Topic  l]  FIL^'KISH  PERIOD  [§  522 

not  mere  objects  for  the  use  of  women;  ^  it  ended  by  becoming 
merged  with  the  marriage  portion  (together  with  which  it  was 
made  use  of)  in  order  to  become  dower.^ 

§  522.  Roman  Marriage  Portion  ("Dos"),  "Faderfium,"^  "Mari- 
tagium."  ^  —  (A)  The  share  brought  by  the  wife  consisted  first  of 
all  in  clothing  and  ornaments  exclusively  used  by  women 
("rhedo")/  the  only  inheritance  of  which  she  could  not  be  de- 
prived. —  (B)  When  she  was  recognized  as  having  more  exten- 
sive rights  over  the  paternal  inheritance  the  share  which  she 
brought  was  increased;  over  and  above  her  trousseau  she  had  a 
marriage  portion  in  the  Roman  sense.^  This  is  the  "faderfium" 
of  the  Lombards,  the  "maritagium"  of  the  Anglo-Saxons.  Some- 
times her  parents  gave  her  her  share  of  the  inheritance  ^  in 
advance,  at  the  time  she  was  married,  and  sometimes  she  had 
already  received  the  inheritance  to  w'hich  she  had  a  right 
as    a    consequence  of    the    previous    death    of   her  father  and 

differing  from  the  "pretium":  "Roth.,"  223.  Cf.  morganatic  marriages, 
ante.     The  "Schwabensp.,"  I,  20,  makes  it  a  privilege  of  the  nobihty. 

1  For  real  deUvery  is  substituted  a  writing.  Among  the  Lombards  the 
"morgincap"  should  not  be  more  than  one-fourth  (Adelg.,  3:  one-eighth) 
of  the  present  and  future  possessions  of  the  husband;  "Liut.,"  7  (in  717), 
103:  prohibition  against  the  husband's  giving  the  wife  more  than  she  has 
received  "in  diem  votorum  in  mepfio  et  morgincap";  "Burg.,"  24;  42,  2. 

2  Lombard  law:  deeds  of  833,  "pro  meta,"  i.e.  "quarta";  874,  875,  etc. 
"Form.  Wisigot.,"  no.  20:  conferring  of  marriage  portion  in  hexameter  verses. 
"Tr.  d'Andelot,"  587:  Galswinthe  received  towns  "tam  in  dote  quam  in 
morganegyba."  Huber,  IV,  380:  a  deed  of  1282  ("dote  seu  dotalicio  quod 
vulgariter  dicitur  morgangaba");  however,  there  are  survivals  of  it  even  to 
our  time,  ib.,  381;  "Schwabensp.,"  18. 

3  "Roth.,"  182:  "fader,"  meaning  father;  "fio,"  meaning  "pecus,"  199, 
201. 

*  "L.  Henrici,"  I,  1,  3,  4,  70,  22;  "T.  A.  C,  Norm.,"  3;  Glanville,  VII,  1; 
see  Du  Cange. 

^  "Rhedo"  (trousseau,  cf.  post,  the  German  "Gerade";  Italy,  "corredum"), 
derived  from  "rat,"  meaning  "supellex":  "Thur.,"  2,  4;  1,  7;  "L.  Fr.  Cham.," 
42;  "Burg.,"  51,  3  and  4;  86,1;  14,  6  and  14,  4.  C/.  "Sal.,"  59;  "Cap.  extr.," 
7;  "Alam.,"  55;  Lupo,  "Cod.  Berg.,"  I,  529;  Fertile,  III,  312;  Diimmler, 
"Formclbuch,"  p.  96.  In  the  fifteenth  century  the  Dithmarscs  (Fricsland) 
still  marry  their  daughters  without  giving  them  any  marriage  portion:  Hano- 
teau  and  Letourneux,  "KabyUe,"  II,  162,  294;  Du  Cange,  see  "trosellus"; 
Dig.  "de  leg.,"  32,  32,  6. 

*  Was  there  a  deUvery  to  the  husband  of  the  things  comprising  the  mar- 
riage portion? 

7  "Roth.,"  181,  182,  184  {Pappenheim,  "Launcgild,"  p.  9),  186,  199, 
201,  228;  "Liut.,"  1  et  seq.,  14,  64,  101,  113;  "Aist,"  1,  4,  5;  Deeds,  for  ex- 
ample c.  855;  Fertile,  III,  312;  Schroeder,  305;  Greg.  Tours,  IV,  27  (large  mar- 
riage portion  of  Galswinthe);  VI,  45  (the  marriage  portion  of  Rigonthc, 
daughter  of  Fr6d6gonde,  carried  in  fifty  carts);  "Sal.  Cap.  extr.,"  14;  Mar- 
culfe,  II,  10. — Disinheriting  in  case  of  the  daughter's  marriage  without  the 
consent  of  her  parents:  "Liut.,"  119  (imperative  provision);  "Burg.,"  12,  5; 
"Alam.,"  57  (misalliance).  —  Cf.  Girls  made  heirs  in  default  of  male  heirs 
in  the  Greek  law,  Beauchet  op.  cit.;  "Erbtochter"  of  the  German  law. 

755 


§  522]  SYSTEM   OF   PROPERTY   BETWEEN    SPOUSES         [Chap.  V 

mother.^  The  progress  made  in  the  rights  of  inheritance  of 
women  is  one  of  the  most  important  factors  in  the  evolution  of 
the  system  of  possessions  between  spouses.  By  making  a  sister 
the  equal  of  her  brothers  the  wife  was  made  more  like  her 
husband. 

§  523.  Rights  of  the  Husband  during  the  Marriage.  —  In  the 
family  communities  such  as  those  which  existed  under  the  Bur- 
gundian  law,  the  community  of  inheritance  did  not  allow  the  wife 
to  have  anything  of  her  own  (excepting,  no  doubt,  the  "  ornamenta 
muliebria");  her  possessions  were  mingled  with  those  of  her  hus- 
band; products  and  lands  served  to  increase  the  common  assets.^ 
Under  systems  which  were  less  strictly  those  of  the  community 
the  husband's  "mundium"  carried  with  it  consequences  which 
were  similar  in  certain  aspects  and  different  in  others.^  In  ap- 
pearance, at  least,  there  was  but  one  inheritance;  the  possessions 
which  composed  it,  whether  they  came  originally  from  the  wife  or 
the  husband,  were  subjected  to  the  administration  and  the  enjoy- 
ment of  the  latter.  "*    He  had  the  power  to  alienate  movables  (ex- 

*  Ireland :  the  authority  in  the  household  belongs  to  that  one  of  the  spouses 
who  contributes  the  largest  share:  Dareste,  "Etudes,"  324. 

2  Huber,  "Hist.  Grundlage  d.  ehel.  Giiterrechts  d.  Berner  Handfeste," 
1884;  "Gesch.  d.  Schweiz.  Privatr.,"  IV,  3i9 ;  Heusler,  II,  301.  The  "com- 
munis facultas"  of  the  father  and  the  children  includes  the  share  contributed 
by  the  wife,  which  she  can  no  longer  withdraw;  14,  4  (cf.  Huber,  IV,  351,  3; 
Schroeder,  "Giit.,"  299;  Brunner,  "Z.  S.  S.,  G.  A.,"  1895,  104);  she  has  a 
right  to  a  portion,  a  child's  share  of  the  common  property,  cf.  24,  62,  74. 
Cf.  "Alam.,"  91,  95,  53,  55;  "Pactus,"3;  Huber,  IV,  352  (bibl.);  Post,  II,  150. 

^  Among  the  Arabs  before  the  time  of  Mahometanism  the  wife  was 
purchased  and  formed  a  part  of  the  inheritance;  according  to  the  Koran 
she  should  give  her  consent  to  the  marriage,  she  becomes  the  owner  of  the 
nuptial  gift,  keeps  the  enjoyment  of  her  personal  belongings  during  the  mar- 
riage, and  does  not  even  contribute  to  the  expenses  of  the  household;  she  is 
not  subject  to  any  authority  on  the  part  of  her  husband.  When  she  becomes 
a  widow  she  takes  by  right  of  inheritance  a  portion  of  the  husband's  prope^t}^ 
The  Arabian  wife  has  thus  passed  from  extreme  subjection  to  extreme  lib- 
erty. Dareste,  "Etudes,"  61.  But  we  must  not  suppose  that  these  rules 
were  applied  in  all  the  Mahometan  countries.  Cf.,  for  example,  Hanoteau 
and  Let.,  "Kabylie,"  II. 

*  "Burg.,"  100:  "Maritas  facultalem  ipsius  mulieris"  (Roman  or  Bur- 
gundian)  "sicut  in  eam  habet  potestatem,  ita  et  de  rebus  suis  habeat"  (in 
the  absence  of  previous  betrothals).  Cf.  XII,  61.  This  "Novella"  ("N. 
Arch.,"  25,  285)  is  made  for  a  period  of  transition  (Roman  marriage  portion, 
barbarian  "mundium").  For  M.  Lefebvre,  II,  442,  this  cannot  be  an  over- 
throwing of  the  old  Burgundian  law  and  the  establishment  of  the  husband's 
power  by  virtue  of  the  Christian  ideas:  Glasson,  III,  211;  "Burg.,"  1,  42,  45, 
etc.;  "Cod.  Euric,"  223;"  "Melanges  Couture,"  p.  25;  "Wis.,"  2,  3,  6;  4, 
2,  15;  Zeumer,  "N.  Arch.,"  24,  96;  Schroeder,  "Guterr.,"  I,  126;  "Rib.,"  74; 
this  "bit  of  text,"  as  it  is  called  by  Lebfevre,  II,  445,  is  very  significant; 
it  states,  in  passing  and  as  a  foregone  conclusion,  that  one  can  no  more  con- 
tract with  the  wife  of  another  person  than  one  can  uith  a  slave  or  a  child, 
obviously  refei*ring  to  the  customary  organization  of  the  family  in  order  to 

756 


Topic  l]  FIL\NKISH  PERIOD  [§  523 

cepting  the  "ornamenta  muliebria").^  Every  acquisition  realized 
during  the  marriage  belonged  to  him,^  —  fruits,  harvests,  or  the 

justify  this  statement.  It  is  especially  among  the  Salian  Franks  that 
Lefebvre,  II,  432,  contests  the  existence  of  the  husband's  "mundium."  The 
example  of  Fr^degonde  is  of  little  value  as  proof  (see  ante,  §  144,  note  2, 
Chap.  II);  her  case  was  such  an  abnormal  one  that  it  needs  to  be  justified  in 
the  eyes  of  the  Franks.  But  we  admit  that  the  "libelli  dotis"  {Roziere,  219 
et  seq.)  furnishes  him  with  a  better  argument  by  conferring  upon  the  wife  the 
ownership,  the  enjoyment  and  the  possession  (either  immediate  or  from  the 
time  of  the  marriage)  of  the  property  established  as  a  marriage  portion  by 
the  husband.  No  allusion  is  made  to  the  "mundium"  or  to  the  intervention 
of  the  husband  in  the  administration  or  the  disposal  of  these  possessions.  So 
that  the  Frankish  wife  appears  to  be  independent  of  the  husband,  having 
separate  property,  with  a  distinct  inheritance  and  interests,  like  the  Roman 
wife.  Let  us  observe,  however,  that  all  the  formulae  are  not  identical;  some- 
times the  spouses  must  have  possession  together,  or  the  wife  must  have  her 
marriage  portion  if  she  survives;  sometimes  she  has  it  at  once,  but  only  for 
her  life  with  a  reversion  to  her  husband  or  his  heirs;  sometimes  she  can  do 
as  she  wishes  with  it.  Thus  the  wife's  rights  vary;  but  apparently  her  posi- 
tion is  always  the  same,  and  it  is  for  this  reason  that  we  must  not  allow 
formulae  based  upon  Roman  models  to  make  too  great  an  impression  upon 
our  minds;  they  only  express  to  a  certain  extent  the  law  as  practised  by  the 
barbarians;  this  is  clearly  seen  from  the  gaps  in  them  and  the  absence  of  the 
right  to  acquests,  for  example.  Perhaps  we  should  conclude  from  this  that 
it  was  legal  to  give  the  wife  a  "peculium"  of  her  own,  just  as  she  had  her 
paraphernalia  at  Rome;  but  it  would  be  a  mistake  to  consider  as  common 
law  something  which  was  only  a  rare  exception  and  a  copying  of  the  civilized 
man  by  the  iDarbarian  of  the  better  class  (for  instance,  gift  of  "villse"  and 
of  considerable  domains).  Behind  this  deceitful  veneer  there  exists,  at  least 
for  the  masses,  and  no  doubt  also  to  a  great  extent  in  exceptional  cases,  the 
old  custom  which  submits  the  wife  to  the  husband  and  does  not  allow  her 
to  do  anything  without  him.  Furthermore,  the  conferring  of  the  possessions 
given  to  the  wife  does  not  necessarily  imply  a  loss  of  their  enjoyment  by  the 
husband  who  gives  them.  The  essential  object  of  the  "libellus  dotis"  was 
to  make  the  wife's  right  irrevocable;  it  was  given  the  same  name  as  the  right 
of  a  purchaser  by  making  use  of  typical  clauses  {Roziere,  267  et  seq.;  cf.  159 
et  seq.);  this  does  not  mean  that  the  wife  had  to  act  in  the  same  way  as  a  pur- 
chaser; she  would  have  had  to  lose  her  status  of  a  married  woman  in  order 
to  make  that  possible.  Also,  in  "  interdonatio "  charters  there  is  no  mention 
made  of  the  marriage  portion  "ex  marito":  Roziere,  245  et  seq.;  to  read  them 
one  could  not  doubt  its  existence. 

1  "Burg.,"  51,  4.  Here  we  have  the  germ  of  the  "pecuHum,"  of  separate 
and  personal  belongings  for  the  wife  (English  and  German  law).  We  have 
just  seen  that  perhaps  as  early  as  the  Frankish  period  the  wife  also  had, 
as  an  exception,  we  believe,  possessions  of  which  she  had  the  administra- 
tion, and  the  products  of  which  she  kept.  Such  was  the  case  of  Fredegonde 
(a  very  exaggerated  case  because  of  the  character  of  this  queen):  Greg. 
Tours,  VI,  45;  10,  79.  Cf.  Lombards,  Fertile,  III,  313;  Dareste,  "Etudes," 
325:  In  Norway  the  husband  has  the  administration  of  his  wife's  possessions, 
but  the  inheritance  of  each  of  them  remains  sei)arate,  and  the  wife's  inher- 
itance consists  of  the  marriage  portion,  the  increase,  the  gift  of  the  morning, 
and  everything  that  the  wife  acquires  by  inheritance  or  otherwise.  If  the 
wife  dies  first  the  husband  keeps  the  increase.     Cf.  ibid.,  348  (Iceland). 

2  Cf.  "Roth.,"  184;  "Liut.,"  57.  Cf.  post,  "Partition  of  Acquests."  How- 
ever, Fr(5dogonde  kept  for  herself  the  acquests  due  to  her  own  labors,  to 
the  income  from  her  possessions,  and  to  the  gifts  of  her  husband  or  third 
parties.  In  mutual  gifts  between  spouses  the  husband  and  wife  each  give 
the  other  the  acquests  made  during  the  marriage  "quod  pariter  conlabora- 
verimus";  Roziere,  245  et  seq. 

757 


§  523]  SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES        [Chap.  V 

products  of  work  ("quod  simul  laboraverunt").^  When  the  share 
brought  by  the  wife  was  an  immovable,  a  conflict  took  place 
between  the  rights  of  the  husband  and  the  rights  of  the  wife's 
family;^  as  a  general  thing,  the  husband  did  not  have  the  free  dis- 
posal of  them,  any  more  than  he  did  of  his  own  immovables.^  Nor 
was  he  authorized  to  deprive  his  wife  of  the  rights  which  had  been 
conferred  upon  her  under  the  form  of  the  "pretium"  or  of  the 
"jNIorgengabe."  ^ 

§  524.  Dissolution  of  Marriage.^  —  The  various  possessions 
which  were  united  in  the  hands  of  the  husband  so  as  to  form  a 
single  estate,  at  least  in  appearance,  were  not  always  separated 
on  dissolution.  The  tendency  of  the  Barbarian  law  is  rather  to 
allow  the  community  of  possessions  resulting  from  the  marriage 

1  CJ.  "Rib.,"  37,  3;  "Alam.,"  55,  2;  "Wis.,"  3,  6,  1;  Greg.  Tours,  X,  29. 
The  wife's  possessions,  as  well  as  those  of  the  husband,  must  answer  for  the 
debts  of  the  latter:  "Bai.,"  1,  10;  "Burg.,"  65.  Contra,  "Ina,"  57;  "^thel- 
stan,"  6;  "Cnut,"  II,  76.  The  wife's  "Wergeld"  belongs  to  the  husband: 
"Alam.,"  51;  "Roth.,"  200. 

2  C/.  in  the  Roman  law  the  husband  as  owner  of  the  land  included  in  the 
marriage  portion:  "Burg.,"  100.  Among  the  Jews  the  marriage  portion 
and  the  "Khetouba"  are  administered  by  the  husband  during  the  mar- 
riage. CJ.  as  to  the  Caucasus,  the  wife's  administration:  Daresle,  "Nouvellea 
Etudes,"  239,  268  (Mongols:  the  wife  freely  disposes  of  her  dower),  323 
(Cambodia). 

3  "Liut.,"  22:  with  regard  to  her  relatives  or  the  judge,  the  wife  who 
alienates  her  property  with  the  consent  of  her  husband,  "violentiam  se  pati 
non  reclamat " ;  29;  Thevenin,  nos.  58,  148;  "Roisin,"  " Formvorschr.  f .  die  Ver- 
ausserungsgeschaf te der  Frauen "  (Lombard  law),  1880  ("Unters."  by  Gierke); 
Dareste,  "Et.,"  p.  310. 

*  The  wife's  rights  account  for  her  frequent  intervention  in  deeds  made 
by  her  husband  {cf.  children).  Deeds  (Schroeder,  "Giit.,"  p.  130  et  seq.); 
773,  the  husband  having  made  a  delivery  to  his  wife,  both  together  deliver 
to  a  third  party  the  property  that  she  has  received;  775,  the  husband  gives 
what  he  has  excepting  the  marriage  portion  conferred  upon  his  wife;  774: 
"O.  et  conjux  mea  H.  donamus,  hoc  est  quod  donat  conjux  mea  suam  dotera 
quam  tradidi  ilh  ante  diebus  nuptiis";  "Rib.,"  37,  3;  during  the  marriage, 
"conscripta"  or  "tradita"  possessions  have  been  used  up  ("simul  consump- 
serint"),  the  widow  has  no  right  to  reclaim  them,  and  undoubtedly  no  right 
to  demand  an  equivalent  for  them :  Heusler,  II,  314,  349;  Thevenin,  no.  134; 
Huber,  IV,  358:  "ego"  (wife)  "et  L."  (husband)  " conquisivimus " ;  Heusler, 
II  314;  Lefebvre,  II,  433.  Cf.  "Acts  of  the  Apostles,"  v,  1:  Ananias  sells  his 
property  jointly  with  Saphira. 

^  According  to  Brunner  op.  cit.,  the  national  Frankish  law  gave  the  widow 
the  o\vnership  of  the  Germanic  marriage  portion,  but  an  ownership  which 
was  limited  by  the  rights  of  the  children  if  there  were  any,  and  if  there  were 
none  by  the  right  of  reversion  that  belonged  to  the  relatives  of  the  husband 
who  had  made  the  gift;  in  case  the  wife  predeceased  the  husband  her  heirs 
had  no  rights  to  this  property  and  the  husband  kept  it;  the  "Morgengabe" 
reverted  to  the  donor  after  the  death  of  the  wife;  as  to  acquests,  they  must 
have  belonged  to  both  spouses  together,  excepting  that  they  were  partitioned 
in  the  proportion  of  two-thirds  to  the  husband  or  his  heirs  and  one-third  to 
the  wife.  Moreover,  the  marriage  portion  established  by  contract  must 
have  excluded  the  right  to  a  portion  of  the  acquests.  Cf.,  however,  "Festg. 
f.  Dernb."  (right  to  dispose). 

758 


Topic  l]  FRANKISH  PERIOD  [§  524 

to  continue  to  exist.^  When  the  marriage  is  broken,  the  disposal 
of  the  possessions  varies,  not  only  in  different  systems,  but 
according  to  the  causes  of  the  dissolution  of  the  marriage,  —  ac- 
cording to  whether  there  are  (or  have  been)  children,^  or  whether 
that  one  of  the  spouses  who  survives  shall  remarry.^  We  can 
only  give  a  brief  summary  of  this  complex  subject.^     We  point 

^  The  German  "  Beisitz."  Thus  is  to  be  accounted  for  the  law  of  the  Thur- 
ingians  which  declared  that  the  mother  leaves  the  land  to  her  sons,  and  to 
her  daughters  the  "  Gerade."  She  is  excluded  from  the  succession  to  the  land; 
but,  because  of  her  right  of  "Beisitz"  she  takes  the  place,  in  fact,  of  her 
husband  at  the  head  of  the  family  patrimony.  In  Poland  the  widow  keeps 
the  enjoyment  of  the  possession  so  long  as  she  does  not  remarry;  if  she  does 
•  remarry  she  has  no  share  in  the  inheritance,  but  she  takes  away  her  bed  with 
its  bedding  and  any  product  of  her  own  labor:  Dareste,  "Et.,"  186;  "N.  Et.," 
324;  Glasson,  "Inst.  Anglet.,"  I,  125;  Joly,  "These,"  p.  132  (system  of  the 
"Hadana"  in  Mahometan  law). 

2  Brunner,  "Z.  S.  S.,  G.  A.,"  1895,  63,  has  shown  the  influence  of  the  birth 
of  a  child  on  the  matrimonial  system  ("Kinderzeugen  bricht  Ehestiftung";. 
In  the  very  old  law  people  are  married  "Uberorum  quaerendorum  causa," 
and  barrenness  of  the  wife  is  a  just  cause  for  repudiation:  "Bai.,"  8,  14. 
Charlemagne  repudiates  the  daughter  of  Didier:  "Mon.  S.  Gall.,"  Ill,  17; 
Hincmar,  in  Migne,  "Patr.  Lat.,"  125,  734.  So  long  as  there  are  no  chil- 
dren the  marriage  is  only  provisional,  and  it  is  not  hard  to  see  that  a  pro- 
visional system  of  possessions  must  also  correspond  to  tliis  trial  of  a  life  in 
common.  Once  the  marriage  has  been  sealed  through  the  birth  of  a  child 
the  pecuniary  rights  of  the  spouses  are  modified,  even  though  the  child  should 
die  before  the  dissolution  of  the  marriage.  Thus,  taking  up  the  various 
periods  of  the  old  law:  (a)  under  the  system  of  separate  possessions  the  rights 
of  the  husband  accrue;  he  obtains  the  marriage  portion  in  case  he  survives 
(com-tesy  of  England);  (6)  the  separation  of  possessions  becomes  changed 
into  a  community;  the  limited  community  into  an  absolute  community; 
the  survivor  takes  all  the  property  (at  least  if  there  are  no  children  at  the 
time  of  the  death).  Applications  of  this  among  the  Frisians:  1st.  Barbarian 
law,  "Pactus  Alam.,"  3,  1;  "L.  Alam.,"  89  (the  child  has  opened  its  eyes, 
seen  the  roof  and  the  four  walls);  "Bai.,"  15,  8;  "Sax.,"  47;  mhelhert,  78,  81; 
"Burg.,"  14,  3,  4  {Brunner,  p.  104);  "Gulathingslog,"  §  54.  —  2d.  Feudal 
France,  Normandy,  England:  a  child  screaming  and  crying,  —  post,  "Rights 
of  the  Survivor." — 3d.  Sicily  (Norman  origin?).  Absolute  community  par- 
ticipated in  by  the  children:  V.  la  Mantia,  "Consuet.,"  p.  6;  Brunneck, 
I,  81;  II,  6;  "Ass.  d'Antioche,"  p.  47.  —  4th.  Artois,  Flanders,  Hainaut, 
Vermandois:  blood  gift  between  husband  and  wife:  "Gout,  de  Flandre," 
ed.  Liinburg-Stirum,  III,  509;  Faider,  "Gout,  de  Hainaut,"  III,  353.  —  5th. 
Frisia,  Westphalia,  various  parts  of  Germany,  c/.  Brunner,  op.  cit.  —  6th. 
Switzerland:  Ruber,  IV,  356,  437;  "Placit  gen.  de  Lausanne,"  ed.  Salis, 
p.  58;  "Zfschw.  R.,"  1903,  226.  —  Brunner,  p.  92  also  sees  in  the  period  of  a 
year  and  a  day  a  time  of  trial;  Mitteis,  "Reichsr.,  p.  224  (Egj-pt):  if  the  wife 
has  not  become  pregnant  at  the  end  of  this  time  the  husband  has  a  right  to 
repudiate  her.     Post,  "  Basis  of  the  Community." 

^  The  majority  of  the  barbarian  laws  contemplated  subsequent  marriages, 
and  their  pecuniary  consequences:  Brunner,  "Sitzb.  Ak.  Berlin,"  1894,  2, 
1289  (Tit.  44  of  the  Salic  Law  on  the  "reipus"  is  only  an  imitation  of  the 
Gallo-Roman  practice,  "Cod.  Th^od.,"  3,  7,  1;  it  is  to  be  accounted  for  by 
the  idea  of  facilitating  the  marriages  of  widows,  which  the  relatives  of  the 
first  husband  might  have  an  interest  in  opposing:  "Roth.,"  182;  "Bai.," 
14,  6  et  seq.;  "Jydske  Lov.,"  1,  8;  "Gragas,"  II,  155,  162.  Cf.  "Sal,"  72; 
'■Gap.  extr.,"  7,  8).  Moreover,  the  title  dealing  with  the  "reipus"  was 
never  applied  in  practice:  Capitulary  of  819;  Heusler,  II,  308;  Post,  I,  185. 

*  Cf.  Heusler,  II,  306  (a  study  of  the  various  barbarian  laws  in  succession). 

759 


§  524]  SYSTEM   OF  PROPERTY   BETWEEN   SPOUSES        [Chap.  V 

out  as  a  striking  characteristic  the  appropriation  of  the  posses- 
sions of  the  spouses  for  their  children;  this  will  be  found  later 
on  embodied  in  the  rule,  "The  dower  of  the  mother  is  the 
principal  inheritance  of  the  children."  ^ 

§  525.  The  Same.  —  (A)  The  "  Morgengabe  "  returned  to  the 
husband  who  had  given  it,  because  of  its  personal  character,^  in 
case  the  wife  died  or  was  repudiated  for  just  cause.  If  the 
husband  died  or  the  wife  was  repudiated  without  cause,  she  ac- 
quired this  gift  absolutely.^ 

§  526.  The  Same.  —  (B)  The  "  Pretium"  belonged  to  the  hus- 
band'* when  the  wife  died  before  him  or  was  repudiated  for  some 
just  cause,^  excepting  that  the  rights  of  their  children  were  not 
affected,  the  result  of  which  was  that  he  was  not  allowed  to  make 
an  alienation  of  it.  Sometimes,  even,  a  duty  is  imposed  upon  him 
to  restore  back  the  "pretium"  during  his  life,  when  the  children 
have  attained  their  majority.^  In  case  the  husband  dies,  his  widow 

*  Brunner,  "Ft.  r.  Dos.,"  p.  568,  only  sees  in  the  Merovingian  capitularies 
which  deal  with  the  marriage  portion  and  second  marriages  a  stamp  of  the 
Roman  law  in  its  last  stages  (contrary  to  those  who  considered  them  as  an 
expression  of  the  Frankish  law:  Heusler,  II,  311):  (A)  Marriage  with  chil- 
dren. The  Roman  legislation  had  ended  by  making  family  possessions  of 
the  antenuptial  gift  and  the  marriage  portion;  the  surviving  spouse  had  the 
enjoyment  of  them,  but  was  not  able  to  dispose  of  them:  "Cod.  Th^od.,"  3,  8, 
2,  3;   "Nov.  Theod.,"  II,  14,  1,  3  ("second  marriages");   "Nov.  Majorien," 

6,  6,  and  "Severus,"  1;  cj.  "Int.  de  Nov.  Th.,"  II  (even  if  there  were  no  second 
marriages).  A  "Nov."  of  Valentinian  III,  34,  10,  even  compels  the  widower 
to  restore  half  of  the  wife's  marriage  portion  to  the  children,  unless  they 
attain  the  age  of  twenty  years:  "Ed.  Th6od.,"  54;  Papien,  26,  2;  "Wis.," 
4,  2,  3;  "  Cod.  Euric,"  321;  "L.  Sal.,"  "Cap.  extrav.,"  7,  8.  —  (B)  Marriage 
without  children.  The  system  of  partition  by  halves  ("Nov.  Valent.,"  Ill, 
34,  8,  c/.  Mitteis,  "Reichsr.,"  pp.  248,  252)  is  found  once  more  in  "Burg.," 
24,  2,  and  "Wis.,"  4,  2,  13.     With  this  maybe  connected  "Sal.  Cap.  extrav.," 

7,  8  (the  widow  has  two-thirds,  but  upon  condition  of  giving  up  that 
which  the  German  law  later  on  calls  the  "Federwat"  (bed  and  bedding), 
and  the  value  of  this  seems  to  make  up  the  difference  between  two-tliirds 
and  one-third.  Cf.  "F.  Andec,"  1;  Troya,  "C.  Dipl.  Lang.,"  no.  520.  The 
Edict  of  Chilperic,  c.  4,  comes  back  to  partition  by  halves  between  the  sur- 
viving spouse  and  the  relatives  of  the  other.  Cf.  "Bai.,"  14,  9;  "Alam.," 
55;  Brunner,  op.  cit.,  p.  568.  These  capitularies  are  only  applied  in  cases 
where  no  agreements  have  been  entered  into.  Cf.  Roziere,  nos.  245  et  seq.; 
Brandileone,  op.  cit. 

2  Cf.  Huber,  IV,  355. 

^  "Alam.,"  56.     As  to  repudiation,  Joly,  "These,"  p.  148. 

*  However,  the  marriage  portion  is  partitioned  between  the  surviving 
spouse  and  the  relatives  of  the  predeceased  spouse  according  to  the  "Cap. 
extr.,"  7  and  8  of  the  "L.  Sal,"  and  the  Edict  of  Chilperic,  4. 

6  "Burg.,"  34,  3;  "Bai.,"  7,  14;  "Wis.,"  3,  4,  3,  12.  According  to  the  law 
of  India,  a  gift  made  to  the  wife  passes  at  her  death  to  her  daughter  if  she 
has  children,  and  to  her  husband  or  her  father  if  she  has  not,  while  at  the  same 
time  taking  into  account  the  various  forms  of  marriage:  Dareste,  "Etudes,"  74. 

6  This  is  what  the  "Cap.  extr.,"  7  and  8  of  the  "L.  Sal,"  held  in  the  case 
of  second  marriages:  the  widower  or  the  widow  who  remarries  keeps  the 

760 


Topic  l]  FRANKISH  PERIOD  [§  527 

gets  the  "pretium,"  ^  sometimes  the  absolute  ownership  of  it,^  but 
more  often  with  rights  which  are  Hmited  in  the  interests  of  their 
children  or  of  the  relatives  of  the  husband,  to  whom  it  returns 
when  there  are  no  children.^  These  restrictions  are  especially- 
prominent  when  the  wife  leaves  the  house  of  the  husband  to  re- 
turn to  her  relatives  or  in  order  to  enter  into  a  second  marriage. 
The  wife  who  has  been  repudiated  without  cause  '*  is  in  about  the 
same  situation  as  the  widow. 

§  527.  The  Same.  —  (C)  The  disposal  of  the  share  brought  by 
the  icife  would  seem  as  though  it  should  be  easy  to  regulate;  it 
ought  to  belong  to  the  wife  or  her  heirs  under  all  circumstances.^ 

Germanic  marriage  portion  without  being  able  to  give  it  or  sell  it,  the  former 
until  the  children  have  attained  the  ''perfecta  aetas,"  the  latter  until  her 
death.  If  there  is  no  second  marriage  the  widower  or  the  widow  will  ordi- 
narily live  with  their  children  and  the  possessions  will  be  mingled. 

1  "Burg.,"  69,  42  (right  of  the  widow  who  has  not  remarried  to  one-third 
of  the  husband's  possessions,  but  only  for  her  Ufe,  assuming  that  there  are 
no  children;  loss  of  this  right  in  case  of  a  second  marriage);  52;  "Roth.," 
1S2,  184;  "Aist.,"  5;  "L.  fam.  S.  Petri  Worm.,"  1  (reversion  to  the  hus- 
band's relatives  if  there  are  no  children);  Beyer,  "Mittelrh.  Urk.,"  I,  83. 

2  Various  systems  in  the  formulae  (and  later  on  in  the  Customs  deahng  with 
dower) :  1st.  Absolute  ownership  of  the  wife  in  every  case  (you  will  do  what 
you  wish,  will  leave  to  whom  you  wish);  2d.  Ownership  if  there  are  no  chil- 
dren; and  enjoyment  if  there  are;  3d.  Enjoyment  in  all  cases.     One  does  not 
see  any  very  striking  differences  between  the  barbarian  formulae   and   the 
Roman  formulae:  Roziere,  nos.  219  et  seq.     Heusler,  II,  307,  maintains,  taking 
as  his  basis  the  Frankish  formulae,  "Lindenbr.,"  7,  and  "Bignon,"  6,  that  the 
marriage  portion  of  the  widow  was  reserved  for  the  children  ("verfangeu"). 
Idem.,  Ficker,  III,  378.     Brunner,  "Fest.  f.  Demberg"  (Berlin),  thinks,    on 
the  contrary,  that  she  had  a  right  to  dispose  of  her  "tertia"  or  marriage  por- 
tion, and  that  this  "tertia"  in  ownership  was  then  converted  into  a  dower  of 
one-half  in  enjoyment:  "  L.  Sal.,"  "Cap.  extr.,"  7, 8  (Roman  influence  according 
to  Brunner;  second  marriages  only);  Marculfe,  2,  9,  17;  "Andec,"  34,  40,  54 
Thevenin,  nos.  53,  113,  176;  "Cart,  de  Saint  Pere  de  Chartres,"  p.  88;  "Wis.,' 
4,  5,  2  (right  of  the  wife  to  dispose  of  only  one-fourth,  formerly  of  the  whole) 
"Alam.,"  55,  56;  "Burg.,"  24,  62  (partitioning).     The  Treaty  of  Andelot 
587,  has  not  very  great  probative  force  because  its  character  is  that  of  a  trans- 
action following  a  crime.     C/.,  however,  Lefebvre,  II,  428;  Fertile,  III,  318 
Brandileone  op.  dt. 

^  Cf.  post,  "Dower";  Tacitus,  18,  second  marriages,  birth  of  children 
"L.  Sal.,"  "Cap.  extr.,"  7  (the  widow  who  remarries  cannot  alienate  the  mar- 
riage portion);  "Cod.  Th6od.,"  3,  8,  2,  3;  "Nov.  Th^od.,"  II,  14,  1,  3  (Int.) 
Majorie>i,  6,  6;  Severus,  1.  Cf.  "Nov.  Just.,"  98,  1  and  2;  127,  3;  "Alam.,' 
55,  57  (argument  contra:  "nunquam  revertatur  ") ;  "  Bai.,"  14,  6  (15,  7) :  besides 
her  marriage  portion  and  the  share  contributed  by  her,  the  widow  has  the 
child's  share  of  the  husband's  possessions,  " unsufructuario  jure,"  but  she 
loses  it  if  she  remarries;  if  there  are  no  cliildren  the  widow  takes  half  of  these 
possessions,  the  near  relatives  of  the  husband  the  other  half;  but  should  she 
remarry  or  die,  her  heirs  will  have  only  her  marriage  portion  and  the  share 
she  contributed ;  one-half  of  the  husband's  possessions  revert  to  his  own  near 
relatives;  the  widow  who  remains  chaste  keeps  the  gifts  of  her  husbantl  if 
there  are  no  descendants  or  near  relatives:  "Cod.  Eur.,"  322;  "Wis.,"  4,  2,  14. 

*  "Bai.,"  7,  14;  "Alam.,"  53;  Grimm,  6:  "Wis.,"  3,  6;  "Burg.,"  34,  4 
("Int.  Cod.  Th^od.,"  3,  16,  1).     Cf.  Greg.  Tours,  10,  8;  9,  33. 

^  This  is  what  happens  according  to  the  "Rib.,"  48,  49,  if  there  is  no  "ad- 

761 


§  527]  SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

But  the  husband  often  acquires  it,  especially  when  there  are  chil- 
dren and  he  does  not  remarry;  it  is  deemed  sufficient  to  limit  his 
right  of  disposing  of  it.^  In  the  community  system  of  the  Bur- 
gundians  this  share  remains  mingled  with  the  possessions  of  the 
husband;  neither  the  widow  nor  her  heirs  have  any  right  to  it. 
Among  the  Lombards  the  husband's  "mundium"  is  sufficiently 
strong  to  cause  this  share  to  be  kept  by  the  husband  who  survives, 
even  if  there  are  children.  Among  the  Alamans  the  husband 
acquires  this  share,  provided  that  there  shall  have  been  born  a 
child  of  the  marriage  who  shall  have  lived  sufficiently  long  after 
the  death  of  his  mother  to  open  his  eyes  and  see  the  roof  of  the 
house  and  the  four  walls.^  If  the  wife  survives  or  is  repudiated 
without  cause,  she  gets  back  the  share  she  has  contributed  ^ 
whether  she  return  to  her  relatives  or  whether  she  remarry.  In 
the  case  of  divorce  by  mutual  consent  the  rights  of  the  spouses 
over  their  possessions  are  fixed  by  their  agreement;  but  ordinarily 
the  wife  only  recovers  the  share  which  she  has  contributed."* 

§  528.  Rights  of  the  Wife  over  Property  acquired  jointly.  — 
Besides  her  rights  as  survivor,  in  the  foregoing  properties,  i.  e.  the 
"pretium"  and  the  "Morgengabe,"  the  widow  takes  a  portion  of 
the  acquests  which  have  been  made  during  the  marriage,^  —  one- 

fatimus":  "L.  Sal.,"  "Cap.extr.,"  8;  "Bai.,"  14,  9;  "Burg.,"  24,  4;  "Roth.," 
201. 

1  This  was  no  doubt  so  among  the  Franks.  Cf.,  however,  Glasson,  III, 
217. 

2  At  least  in  the  Lombard  law:  Thevenin,  no.  61.  Cf.  "Roth.,"  187,  188, 
201,  1.30. 

^  "Roth.,"  182:  the  widow  who  remarries  has  the  "Morgengabe"  and  the 
"Faderfium";  184,  if  she  prefers  to  live  in  her  father's  house  after  he  is  dead, 
she  must  previously  deduct  the  "Morgengabe"  and  the  "meta,"  but  she  must 
partition  the  "Faderfium"  with  her  sisters,  just  as  she  must  the  rest  of  the 
succession.  "Alam.,"  55:  she  has  "quidquid  de  sede  paterna  adtularit," 
besides  the  legal  marriage  portion,  to  the  extent  that  "parentes  ejus  legitime 
plagitaverint " ;  proof  by  oath  with  fellow  swearers  or  by  the  judicial  duel: 
"Factus,"  3,2;  "Sal.,"  "Cap.  extr.,"  7,  8;  "L.  fam.  S.  Pierre  Worm.,"  1;  "L. 
Henrici,"  I,  70,  22;  "T.  A.  C,  Norm.,"  3.  — "Burg.,"  14,  4  (an  interpretation 
wliich  refuses  to  give  the  widow  without  children  the  right  to  the  share  con- 
tributed by  her). 

*  "Wis.,"  3,  6;  "Pact.  Alam.,"  3,  2;  "Roth.,"  182;  Thevenin,  no.  82. 

^  There  is  no  mention  of  them  in  either  the  "libelli  dotis"  or  the  "Cap. 
extrav."  of  the  Salic  Law.  Must  we  assume  with  Brunner  that  the  marriage 
portion  conferred  by  agreement  excluded  both  the  legal  marriage  portion 
and  the  right  to  acquests?  —  Was  this  portion  of  the  acquests  reserved  for 
the  children  in  the  same  way  as  the  marriage  portion?  Cf.  as  holding  the 
contrary  opinion  Heusler,  II,  310.  —  In  the  Burgundian  family  community 
the  wife  seems  to  have  been  counted  as  one  more  member,  and  she  was  given, 
for  example,  one-third  of  the  husband's  inheritance  when  she  survived  him 
(Tit.  74).  The  right  to  acquests  quite  naturally  arises  from  this  system  of 
community.  There  has  been  a  desire  to  find  for  it  a  more  distant  origin; 
the  saying  of   Tacitus,  "Germ.,"  18,  in  speaking  of  the  Germanic  woman, 

762 


Topic  l]  FRANKI3H   PERIOD  [§  528 

third  among  the  Franks,  according  to  the  law  of  the  Ripuarians  ^ 
and  a  Capitulary  of  821,  chapter  9,^  and  one-half  among  the 
Westphalians,  according  to  the  law  of  the  Saxons;  ^  the  law  of  the 
Visigoths  divides  the  acquests  between  the  two  spouses  in  pro- 
portion to  their  respective  fortunes.'*  In  this  right  to  the  acquests 
some  only  see  a  right  by  sm-vivorship,  others  find  in  it  the  proof 

"laborum  periculorumque  socia,"  already  seems  to  presage  the  community 
of  possessions.  But  life  in  common  cannot  of  itself  result  in  community  of 
possessions,  for,  were  this  not  so,  it  is  hardly  likely  that  any  but  this  matri- 
monial system  would  have  been  known.  In  Norway  the  spouses  can  form  a 
community  of  acquests  in  which  the  wife's  share  is  only  one-third:  Dareste, 
"Etudes,"  325,  348  (Iceland);  "Nouv.Et.,"  325  (Cambodia),  341  (Malgaches). 

^  "Gesta  Dagoberti,"  46  (in  639);  "Rib.,"  37.  Schroeder,  I,  94,  wrongly 
concludes  from  this  that  the  widow  has  a  choice  between  the  "Morgengabe" 
and  the  acquests.  Cf.  Heusler,  II,  313.  If  we  admit  with  Brunner  that  there 
is  a  legal  marriage  portion  of  one-tliird,  the  word  "tertia"  may  mean  this 
marriage  portion;  and  this  learned  man  beUeves  that  this  is  its  technical 
acceptation.  Cf.  "Polypt."  of  Irminon,  12,  3;  Marculfe,  II,  17;  "App.  Marc," 
40;  "Andec,"  45,  58;  "Lindenbr.,"  50;  Greg.  Tours,  8,  39;  7,  40;  Thevenin, 
no.  53  (Pardessus,  "Dipl.,"  no.  179,  in  572;  cf.  Brunner,  "Festg.  f.  Dernb.," 
p.  45),  175  (in  833?  the  engaged  man  gives  his  future  spouse  a  manse  with 
slaves,"  and  besides  this  one-third  of  his  present  and  future  possessions), 
176  and  179  (one-third  of  all  the  present  and  future  possessions),  174,  n.  1 
(marriage  portion  of  one-half  instead  of  one-third  about  904);  Schroeder, 
"Gut.,"  I,  92;  Kraut,  "Vormundsch.,"  II,  379.  Cf.  in  the  later  Customs 
partition  of  the  community  in  the  proportion  of  two-thirds  to  the  husband 
and  one-third  to  the  wife  (portion  of  the  sword  and  portion  of  the  distaff): 
Merlin,  see  "Cout.  de  Ferrette." 

^  Capitulary  of  821,  9  (I,  301).  In  giving  the  widow  one-third  "collabora- 
tionis  quam  simul  in  beneficio  conlaboraverunt,"  the  Capitulary  means  to 
say  that  this  advantage  shall  not  itself  be  treated  as  an  acquest,  no  doubt 
because  of  its  personal  character.  As  to  other  acquests,  "res  quas  (maritus) 
aliunde  adduxit  vel  comparavit  vel  ei  ab  amicis  conlatum  est,"  the  Capitulary 
confers  them  without  saying  "tam  ad  orphanos  quam  ad  uxores,"  and  re- 
ferring to  the  previous  law:  Flodoard,  "Hist.  Rem.,"  85;  "Cap.  Kiersy," 
877,  c.  5,  6.  On  the  question,  cf.  Sandhaas,  121;  Schroeder,  "Giit.,"  I,  91; 
Heusler,  II,  310. 

"  "Sax.,"  47;  48;  HexLsler,  II,  346;  Brunner,  "Z.  S.  S.,  G.  A.,"  1895,  100; 
Haenel,  "R.  Z.  G.,"  I,  290;  Stemann,  "Guterr."  (Jutland),  1857. 

*  "Wis.,"  4,  2,  15,  16;  5,  2,  3  and  4;  Zeumer,  "N.  Arch.,"  26,  123;  Brissaud, 
"Melanges  Couture,"  1901  ("La  Soci6t6  d'Acquets  entre  Epoux  dans  les 
Lois  Wisigothiques").  —  The  Code  of  Euric,  325,  perhaps  already  contem- 
plated in  express  terms  the  community  of  acquests  among  spouses;  this  was 
assumed  in  its  c.  323,  where  it  sets  forth  that  certain  acquests  belong  to  the 
husband,  —  a  thing  which  would  have  been  useless  unless  there  were  a  part- 
nership and  in  the  "Antiqua,"  5,  2,  3,  reserving  for  the  spouse  who  receives 
the  gift  alone  the  possessions  given  by  the  king.  The  Law  of  Reccosvind, 
4,  2,  16,  thus  did  not  introduce  the  community  between  spouses  into 
the  Visigotliic  law;  this  community  already  existed  in  the  time  of  Euric. 
With  regard  to  this  law,  let  us  notice:  (a)  that  it  gave  the  heirs  of  the  spouses 
the  same  rights  as  the  latter  over  their  share  of  the  acquests;  thus  there  is 
no  question  here  of  a  right  of  the  survivor;  {h)  that  the  conjugal  community 
is  to  be  accounted  for  by  reasons  of  a  pecuniary  nature  rather  than  of  a  moral 
nature,  because  the  share  of  each  spouse  is  in  proportion  to  his  or  her  fortune, 
and  because  the  acquests  to  the  production  of  which  one  of  the  spouses  docs 
not  contribute  belong  exclusively  to  the  other.  Cf.  "M.  G.  II.,  L.  L.,  Leges 
Visig.,"  pp.  183,  211. 

763 


§  528]  SYSTEM    OF   PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

of  the  existence  of  a  true  community  of  possessions  between 
spouses  ^  since  the  barbarian  period.  Except  among  the  Visi- 
goths, there  is  rather  a  'progress  towards  community  than  com- 
munity properly  so  called,  for  the  right  to  acquests  does  not 
pass  to  the  heirs  of  a  predeceased  wife.^ 

*  To  this  effect,  Brunner,  op.  cit.;  Heusler,  II,  310.  Cf.  Post,  II,  156.  Contra, 
Glasson,  III,  213. 

2  In  fact,  the  majority  of  the  texts  assume  that  the  wife  who  takes  the 
acquests  survives  the  husband:  "Rib.,"  37.  At  the  same  time,  the  contrary 
has  been  argued  from  the  formulae  of  Marculfe,  2,  7,  17,  according  to  which 
the  wife  gives  the  surviving  husband  her  portion  of  the  acquests,  —  a  thing 
which  is  quite  useless  if,  simply  owing  to  the  fact  of  her  surviving,  it  belongs 
to  her.  But  it  is  difficult  to  draw  any  argument  from  this  clause,  for  it  has 
as  its  counterpart  another  clause  that  is  certainly  incorrect,  —  the  clause 
by  which  the  husband  gives  his  surviving  wife,  not  his  share  in  the  acquests, 
which  might  be  understood,  but  all  the  acquests;  a  thing  which  he  cannot 
do  when  the  wife  has  one-third  of  them.  Cf.  Edict  of  Chilperic,  4;  Thevenin, 
no.  57;  "  Andec,"  54;  "Lindenbr.,"  13;  Pithou,  38;  "Cart,  de  Cluny,"  I,  9,  etc.; 
Glasson,  III,  215. 


764 


Topic  2]      DOWER   AND   OTHER   RIGHTS   BY   SURVIVORSHIP        [§  529 


Topic  2.     Dower  and  Other  Rights  by  Survivorship 


§  529.  Dower.    General  Ideas. 

§  530.  Conditions  requisite  for  the 
Existence  of  Dower.  —  (A) 
Ivinds  of  Dower. 

§  531.  The  Same.  —  (B)  The  Amount 
of  legal  Dower. 

§  532.  The  Same.  —  (C)  The  Seat  of 
the  Customary  Dower. 

§  533.  The  Same.  —  (D)  Wife  obtains 
Dower  on  going  to  Bed. 

§  534.  The  Same.  —  (E)  The  Forfei- 
ture of  Dower. 


§535. 


§536. 

§537. 
§538. 

§539. 
§540. 
§541. 


Rights  of   the  Wife   over  the 

Dower.  —  (A)     During     the 

Marriage. 
The  Same.  —  (B)  At  the  Death 

of  the  Husband. 
The  Dower  of  Children. 
The   Increase  of  the  Marriage 

Portion. 
Rings  and  Jewels. 
Counter-Increase. 
Mourning  and  Residence. 


§  529.  Dower.  General  Ideas.  —  By  this  is  understood  that 
portion  of  the  personal  belongings  of  the  husband  ^  over  which 
the  widow  has  the  right  of  enjoyment  during  her  life,  and  also 
this  right  of  enjoyment  itself.  We  have  already  seen  that  dower 
was  the  result  of  the  fusion  of  the  Germanic  marriage  portion  and 
the  "jNlorgengabe."  ^  Originally  it  formed  a  set-off  or  equivalent 
given  to  the  wife  in  return  for  the  share  brought  by  her,^  and, 


^  "Dos,"  "dotalicium,"  "dotarium,"  "doarium,"  "vitalitium,"  "viduali- 
cium,"  "viarium";  see  Du  Cange,  "Vivelotte,"  Ragueau  (dower  of  commoners 
in Boutaric,  I,  97).  Germany,  Italy:  "dotalicium"  has  as  its  synonymns  terms 
which  sometimes  serve  also  to  designate  institutions  similar  to  dower:  "Leib- 
geding,"  contract  for  life;  "Leibzucht,"  "liftocht,"  allowance  for  life;  "Wit- 
thum,".  dower;  "Widerlage,"  "Contrados,"  post,  "Increase  of  Marriage 
Portion";  Fertile,  II,  336;  "meta,"  "quartisium,"  "sponsaUcium,"  "donatio 
propter  nuptias,"  "antefactum,"  "morgengabe." 

2  The  conferring  of  dower  precedes  the  marriage,  and  yet  "  Au  coucher  gagne 
la  femme  son  douaire";  it  is  a  very  widespread  opinion  that  dower  is  "the 
reward  and  recompense  of  chastity":  Pasquier,  "Lettres,"  IX,  1;  Fertile, 
111,  337.  —  In  the  German  countries  the  "Morgengabe"  has  often  been  main- 
tained alongside  of  the  increase  of  marriage  portion  or  "  Widerlegung "  and 
the  dower:  Stobbe,  IV,  108,  183;  Huber,  IV,  379;  Heusler,  II,  374;  "Sachsensp.," 
1,  20;  3,  38.  Legal  "Morgengabe"  for  the  Saxon  nobility.  Sometimes  it 
consists  in  simple  gifts,  sometimes  it  constitutes  a  dower  (Austria),  and  some- 
times, finally  (Southern  Germany,  Switzerland),  it  forms  a  "Sondergut" 
for  the  wife:  "Schwabensp.,"  1,  18  (20);  "estreine."  Sometimes  the  "Wit- 
thum"  has  also  this  last  character:  Heusler,  II,  373. 

'  If  it  were  exclusively  a  recompense  for  the  marriage  portion,  women 
who  did  not  furnish  a  marriage  portion  would  have  no  right  to  it:  Loysel,  152. 
In  Germany  dower  properly  so  called,  "Witthum"  or  "Widem,"  is  con- 
trasted with  the  counter  marriage  portion,  "Widerlage"  (or  increase  of  mar- 
riage portion),  the  amount  of  which  is  in  proportion  to  that  of  the  marriage 
portion,  and  which  the  surviving  wife  obtains,  just  as  the  surviving  husband 
obtains  all  or  part  of  the  marriage  portion:  Chaisemariin,  "Prov.,"  p.  341: 
"Rich  wives  make  poor  children,"  F.  v.  Wyss,  p.  49;  Stobbe,  IV,  114  (dis- 
tinctions); Heusler,  II,  370;  Huber,  II,  375.     The  increase  in  the  amount  of  the 

765 


§  529]  syste:\i  of  property  betw^een  spouses       [Chap.  V 

when  this  share  was  nothing,  then  it  was  a  means  of  preventing 
her  from  being  absolutely  destitute.^  The  Church  showed  itself 
favorable  to  dower,  and  the  Custom  made  it  obligatory,  following 
the  example  of  the  canon  law.-  It  seemed  all  the  more  necessary 
as  the  wife  was  strictly  dependent  upon  her  husband ;  her  rights  of 
inheritance  in  her  own  family  were  often  very  much  curtailed,  and 
the  few  possessions  which  she  had  were  in  danger  of  being  spent 
during  the  marriage  in  the  interest  of  the  husband,  for  at  one  time 
there  was  nothing  to  prevent  the  husband  from  alienating  them 
or  pledging  them  for  himself;  the  income  which  they  produced  or 
the  acquests  which  they  served  to  obtain  did  not  benefit  the  wife, 
or  only  benefited  her  to  a  small  extent,  under  the  old  matrimonial 
system,  which  was  exclusively  one  of  community.  Thus  we  see  in 
what  an  embarrassing  situation  an  elderly  widow  might  find  herself 
at  the  death  of  her  husband.  Dow'er  was  often  her  only  res6urce. 
It  made  the  possessions  of  the  husband  inalienable,  in  coun- 
tries of  Customs,  just  as  the  marriage  portion  system  made  the 

marriage  portion  was  thus  of  very  great  importance  in  this  matter.  In  Italy 
at  the  beginning  of  the  fourteenth  century  marriage  portions  were  almost  re- 
duced to  a  mere  trousseau.  They  soon  increased,  and  Dante  was  able  to  say 
that  the  birth  of  a  daughter  was  a  source  of  ruin.  In  1434,  in  Florence,  there 
was  created  a  marriage  portion  insurance  ("monte  dei  doti"):  Periile,  III,  321. 

1  There  is  a  close  connection  between  dower  and  the  system  of  property 
between  spouses  on  the  one  hand  and  inheritance  or  gifts  between  spouses 
on  the  other.  —  (A)  Lardy,  "L^gisl.  Civiles  des  Cantons  Suisses,"  see  the 
charts  at  the  end  of  the  volume.  The  idea  of  a  right  of  succession  between 
spouses  was  opposed  to  the  principle:  "Who  has  my  blood  has  my  property." 
However,  in  time  they  came  to  recognize  this  idea  as  a  consequence  of  the 
resemblance  shown  between  dower  or  community  right,  which  was  common 
to  the  surviving  spouse,  and  the  right  of  succession.  In  Germany  -the  dis- 
tinction is  not  very  clear,  and  one  can  say  that,  generally  speaking,  the  right 
of  succession  there  takes  the  place  of  the  legal  dower:  Stobbe,  IV,  499;  Huber, 
IV,  470;  Heusler,  II,  421.  Very  often  the  spouse  who  inherits  appears  rather 
as  a  member  of  the  community  giving  up  joint  possession  than  as  an  heir 
properly  so  called.  In  France,  perhaps  as  a  consequence  of  the  Roman 
influence,  the  idea  of  succession  is  brought  out  better  (c/.,  however,  Nor- 
mandy). Rimasson,  however,  connects  the  legal  right  with  the  right  of  suc- 
cession of  the  barbarian  period.  Cf.  as  to  the  case  where  the  survivor  takes 
the  succession  of  the  predeceased  in  the  quality  of  heir  of  their  children: 
"Jostice,"  p.  212;  "Sachsensp.,"  1,  33;  "L.  Alam.,"  95;  Pollock  and  Maitland, 
II,  422  (copyholds);  Lehr,  "Dr.  Angl.,"  p.  107;  post,  "Community";  Van 
Weter,  "Dr.  Rom.  et  Dr.  Celtique,"  1898,  p.  48;  "M.  G.  H.,  L.  L.,"  11,37 
(general  law  in  the  year  1019  giving  the  survivor,  if  there  are  no  children,  all 
the  possessions  of  the  predeceased;  this  law  was  not  applied).  Cf.  Dower 
of  Children,  "Verfangenschaft."  —  (B)  Gifts  between  spouses;  Loysel,  149, 
150:  "Mutual  gift  does  not  prevent  dower";  Perfile,  III,  344;  Chaisemartin, 
382:  "Hat  with  the  veil  and  veil  with  the  hat"  (placed  upon  the  altar),  a 
sjTnbolioal  form  of  mutual  gift. 

2  Dig.  X,  420;  "Jostice,"  p.  216;  Glanville,  VI,  1.  Competence  of  the 
ecclesiastical  judges,  post.  Part  played  by  the  Holy  See  in  the  quarrel  be- 
tween John  Lackland  and  Queen  B^rang^re  on  the  subject  of  the  dower 
which  she  claimed:  Rymer,  "Acta,"  I,  152. 

766 


Topic  2]      DOWER   AND   OTHER    RIGHTS   BY   SURVIVORSHIP       [§  529 

possessions  of  the  wife  inalienable  in  countries  of  written  law. 
The  husband  could  not  dispose  of  property  without  the  consent 
of  the  wife,  and,  moreover,  the  personal  belongings  or  family  pos- 
sessions, which  it  affected  if  there  were  no  agreement  to  the  con- 
trary, consisted  in  those  things  of  which  people  scarcely  deprived 
themselves,  even  where  the  Custom  permitted  it.  So  great  was 
its  importance  still  in  the  thirteenth  century,  that  Beaumanoir 
devotes  an  entire  chapter  of  his  work  to  it,  whereas  he  passes 
rapidly  over  community.  The  institution  met  with  some  resist- 
ance on  the  part  of  feudalism;  the  woman  was,  in  fact,  scarcely 
capable  of  fulfilling  the  feudal  duties;  it  was  necessary  that  the 
heritability  of  fiefs  should  be  fully  accepted,  for  dower  to  be  ap- 
plied to  this  category  of  property.^  In  the  last  stage  of  the  old 
law  the  jurisconsults  have  some  difficulty  in  justifying  its  exist- 
ence.^ The  system  of  property  had  changed;  the  community 
between  spouses  had  become  common,  and  more  often  than  not 
it  was  sufficient  if  the  wife  had  her  share  of  the  community.  But 
the  community  might  be  a  bad  thing;  the  husband  might  abuse 
his  powers  in  order  to  dissipate  it  or  might  administer  the  personal 

1  Originally   fiefs   could   not   be   encumbered   with   dower.     "L.    Feud.," 

I,  9,  1;  "Sachseasp.,"  3,  75.  Later  on  it  was  allowed,  but  with  restrictions 
which  recall  the  primitive  law,  such  as  consent  of  the  lord:  Viollet,  p.  779. 
"Dower  of  the  finest,"  in  England,  that  is  to  say,  dower  affecting  the  finest 
of  the  common  tenures,  whereas  tenures  by  knight-service  during  the  minority 
of  the  children  return  to  the  lord;  the  suppression  of  tenures  by  knight-service 
involved  the  disappearance  of  this  form  of  dower:  Littleton,  49;  Blackstoiie, 

II,  8.  Kingdoms,  the  great  manors,  castles,  which  the  vassal  promises  to 
give  back  and  which  the  lord  can  demand,  were  not  subject  to  dower:  Beau- 
manoir, 1.3,  8,  19;  Loysel,  1.36;  "Bourges,"  59;  "L.  d.  Dr.,"  115;  "Amiens," 
121;  "Schwabenspiegel,"  "Lehnr.,"  36,  104,  188;  "Const.  Neapol.,"  Ill,  13; 
Fertile,  III,  339.  —  The  right  of  the  family  and  the  right  of  primogeniture 
were  also  found  to  be  in  conflict  with  dower:  "Poitou,"  162. — As  to  the 
dower  of  queens,  cf.  Isambert,  Table,  see  "Douaire";  Ducoudray,  "Orig. 
du  Pari.,"  p.  795;  Maffert,  "Apanages,"  "These,"  1900;  Monteil,  "Domania- 
litc  publique,"  "These,"  1902. 

-  ".Jostice,"  p.  219:  She  [the  wife]  is  of  little  service  during  her  life 
[this  is  not  so  in  the  case  of  the  young  widow  in  good  health  who  has  personal 
belongings;  moreover,  one  might  say  the  same  of  the  husband  who  is  old  or 
infirm];  she  is  the  slave  of  the  lord  [St.  Paul  to  the  E-phesians,  V,  22:  'viris 
subditaj'];  she  has  more  pain  in  childbirth  than  the  lord  has  [a  motive 
which  it  is  hard  to  take  seriously,  even  by  saying  that  dower  is  a  recompense 
for  maternity]."  The  saying  of  Beaumanoir,  13,  1,  is  often  cited,  "At  the  death 
of  the  husband  the  widows  are  left  stunned  and  despairing";  but  the  juris- 
consult does  not  seek  to  modify  the  dower  on  this  account;  he  means  to  say 
that  one  should  not  take  advantage  of  their  mourning  to  deprive  them  of 
their  rights.  If  the  dower  only  served  to  insure  the  maintenance  of  the 
widow,  the  one  who  had  resources  could  make  no  claim  to  it.  Cf.  Viollet, 
"Et.  de  St.  Louis,"  III,  267.  If  he  had  to  pay  for  the  care  and  the  services 
of  his  wife,  reciprocity  would  be  due  the  husband.  Cf.,  however,  the  German 
proverb:  "Dower  is  the  fief  of  women";  Chaisemartin,  p.  335;  "Norm.,"  376; 
Lefebvre,  "La  Cout.  Frang.  du  Mariagc  au  Temps  de  Saint  Louis,"  1901. 

767 


§  529]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

belongings  of  his  v/ife  badly.  Dower  seems  to  have  overcome 
these  dangers,  which  became  less,  moreover,  as  guaranties  in  the 
interest  of  the  wife  came  to  be  developed.  It  was  intended  to 
allow  the  widow  to  live  honorably  according  to  the  station  of  her 
husband,  and  to  keep  her  rank  in  society;  the  nobleman's  widow, 
excluded  from  the  paternal  inheritance,  had  rights  which  were 
quite  special.  Finally,  several  of  the  Customs  saw  in  dower  a 
means  of  keeping  for  the  children  the  personal  belongings  of  their 
father. 

If  dower  had  only  been,  as  said  sometimes,  a  witness  of  af- 
fection, it  would  have  been  natural  for  the  husband  to  receive  a 
corresponding  benefit;  but  the  Customs  for  the  main  part  re- 
fused to  grant  him  any  such  benefit,  which,  indeed,  proves  that 
dower  has  sprung  rather  from  a  thought  of  interest  than  from  one 
of  affection.  It  is  true  that,  following  the  example  of  the  Bar- 
barian law,  the  usages  of  certain  provinces,  such  as  Normandy, 
Anjou,  and  Maine,  made  an  exception  to  the  common  law  and 
allowed  the  w^idower  the  marriage  portion  of  the  wife;  this  same 
Custom  existed  across  the  Channel  under  the  name  of  curtesy  of 
England,^  which  reminds  one  of  the  "Counter-Increase"  of  the 
countries  of  written  law. 

Having  become  less  useful,^  being  restricted  by  court  decisions, 

1  In  Paris  and  in  various  of  the  central  provinces,  —  Orleans,  Anjou, 
Touraine,  Maine  and  Poitou,  —  the  husband  who  was  a  widower  obtained 
for  his  Ufe  the  marriage  portion  of  his  wife,  provided  he  had  had  a  male  heir 
by  her  and  had  married  "cum  virgine."  This  was  a  sort  of  counter-dower: 
"Et.  de  St.  Louis,"  I,  13  (provided  that  the  child  had  screamed  and  cried); 
Bouiaric,  I,  45;  "L.  d.  Droiz,"  §  415;  Beautemps-Beaupre,  "Cout.  d'Anjou," 
I,  189;  "A.  C,  Picardie,"  15.  In  these  texts  only  the  gentleman  widower  is 
dealt  with.  Cf.  "Confer,  de  Guenois,"  602;  "Paris,"  238  (reference  legacy  of 
the  noble  spouse).  South:  "Charroux,"  13;  "Limoges,"  76;  "A.  C,  Bayonne," 
63,  SI;  post,  "Counter-Increase";  "Ass.  d'Antioche,"  1;  Viollet,  p.  808.  The 
Norman  law  extended  this  right  of  the  widower  over  all  the  immovables  of 
his  wife,  but  it  was  made  subject  to  the  condition  that  he  should  not  remarry: 
"Summa  Norm.,"  119;  cf.  "C.  de  1583,"  382;  Delisle,  no.  72  (in  1210):  "quam- 
diu  erit  absque  muhere";  Colin,  "N.  R.  H.,"  1892,  465.  The  Custom  of 
England,  which  was  more  liberal,  more  "courteous"  than  the  Norman  Cus- 
tom, did  not  deprive  the  widower  of  this  right  in  case  he  married  again;  nor, 
moreover,  did  the  other  French  Customs:  Glanville,  VII,  18,  3;  Bradon, 
fo.  438;  "Reg.  Maj.,"  II,  57;  "L.  Burg.,"  44;  Pollock  and  Maitland,  II,  412; 
Littleton,  35  (Blackstone,  II,  8,  3:  On  the  free  bench  of  the  County  of  Kent, 
or  right  of  the  survivor  to  half  of  the  lands  of  the  predeceased  spouse,  cf. 
the  German  "  Beisitz ").  —  As  to  the  origin  of  this  right  cf.  Brunner,  "  Forsch.," 
708;  "Z.  S.  S.,  G.  A.,"  1895,  96.  The  fact  that  it  persisted  is  to  be  accounted 
for  outside  of  the  force  of  tradition  by  the  desire  not  to  treat  the  husband 
who  was  a  widower  any  differently  from  the  way  in  which  the  wife  who  was 
a  widow  was  treated.  Cf.,  moreover,  the  right  of  custody  in  case  the  children 
live,  ante,  §§  163  and  197. 

2  Lamoignon  suggested  the  abolishing  of  all  legal  rights  of  the  survivor: 

768 


Topic  2]      DOWER  AND   OTHER  RIGHTS   BY   SURVIVORSHIP       [§  530 

and  left  in  use  mainly  among  the  class  of  the  nobility,  dower 
appeared  under  the  Revolution  like  a  fragment  of  feudalism,  a 
hindrance  to  the  freedom  of  transactions,  a  complication  in  the 
regulating  of  inheritances.^  The  Law  of  the  17th  Nivose,  year  II, 
Art.  61,  seems  to  have  abolished  it  "as  well  as  the  increase  of  the 
marriage  portion"  and  the  other  rights  of  a  survivor;^  though 
it  has  been  possible  for  dispute  to  arise  on  this  subject,^  it  is 
quite  certain  that  the  Civil  Code  no  longer  recognizes  the  legal 
dower.  ^ 

§  530.  Conditions  requisite  for  the  Existence  of  Dower.  —  (A) 
Kinds  of  dower.  Two  sorts  of  dower  are  to  be  distinguished: 
dower  by  agreement  (or  prearranged)  and  Customary  dower  (or,  as 
we  would  say  to-day,  legal  dower).  Beaumanoir  in  a  passage 
which  has  given  rise  to  a  great  deal  of  discussion,  13,  12,  attributes 
the  institution  of  the  Customary  dower  to  an  ordinance  of  Philip- 
Augustus,  of  the  year  1214,  which  has  never  been  found:  "The 
general  custom  of  dower  .  .  .  the  wife  takes  half  of  that  which 
the  man  has  the  day  he  marries  her,  which  began  with  the  ordi- 
nance of  the  good  King  Philippe,  king  of  France,  who  reigned 
there  in  the  j^ear  MCC  and  XIV.  And  this  ordinance  commanded 
this  to  be  done  tlii'oughout  the  whole  kingdom  of  France,  ex- 
cepting the  domain  of  the  crown  and  several  baronies  held  from 
the  crown,  which  were  not  to  be  divided  in  half  for  dower,  and 
which  bring  no  dower  to  the  ladies  excepting  that  dower  which 
is  promised  them  when  they  are  married.  And  before  this  ordi- 
nance of  the  king  Philippe  no  woman  had  dower  excepting  such 
dower  as  should  be  promised  at  the  marriage.  And  it  is  very 
evident  that  the  custom  was  such  formerly,  from  a  word  which 
the  priests  caused  the  man  to  say  when  he  was  married,  for  he  then 
said,  'With  the  dower  which  is  arranged  between  my  friends  and 
thine  I  endow  thee.'"    It  is  beyond  a  doubt,  however,  that  before 

"  Arr.,"  pp.  269  and  464.  Regulation  of  1773  doing  away  with  the  legal  dower 
in  Aosta. 

1  "Code  Civil  interm.,"  II,  171;  cf.  Ill,  155;  Sagnac,  p.  300;  Avon, 
"N.  R.  H.,"  1901,  601;  Merlin,  see  "Gains  nupt.,"  and  "Quest,  de  Dr.,"  7, 

§3-  . 

^  There  is  no  doubt  that  the  dower  of  children  was  abohshed:  Decree  of 
22d  Vent.,  year  II,  Art.  49,  and  of  9th  Fruct.,  year  II,  Art.  24.  Controversy 
as  to  the  dower  of  the  wife:  Schmitz,  "Th6se,"  1900,  p.  81. 

*  Under  the  Civil  Code  gifts  by  marriage  contract,  etc. 

*  A  Law  of  March  9,  1891,  reopening  an  evolution  which  seemed  to  be 
closed,  has  conferred  rights  of  succession  upon  the  survivor  of  the  spouses, 
whether  rich  or  poor,  and  even  when  there  are  children,  when  it  would  have 
been  sufficient  to  have  given  an  allowance  for  support  to  the  spouse  who  was 
in  want. 

769 


§  530]  SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES        [Chap.  V 

the  year  1214  Customary  dower  was  not  unknown;^  the  "dos 
legitima"  of  the  barbarian  laws  is  nothing  else,  and  there  is  noth- 
ing to  show  that  it  fell  into  disuse.-  Perhaps  this  ordinance  was 
enacted  with  respect  to  fiefs,  which  dower  could  not  affect  with- 
out injuring  the  rights  of  the  lords.^  At  any  rate,  the  Church  and 
the  Custom  made  it  a  duty  of  the  husband  to  give  his  wife  dower.^ 

1  In  the  English  Customs  one  will  observe  a  remarkable  evolution  from 
the  dower  by  agreement  to  the  legal  dower.  Thus,  according  to  Glanville, 
VI,  1,  the  husband  is  held  bound  to  endow  his  wife  "ad  ostium  ecclesise"; 
when  endowing  her  sometimes  he  chooses  property  which  is  a  part  of  the 
marriage  portion  ("dos  nominate"),  sometimes  he  does  not  specify  in  what 
the  dower  shall  consist,  and  then  the  dower  is  "rationabiUs";  it  includes  one- 
third  of  the  free  tenement  of  which  the  husband  is  seised  at  the  time  of  the 
marriage.  About  the  time  of  the  reign  of  Edward  III  the  wife  has  a  right  to 
a  reasonable  marriage  portion,  even  if  'the  husband  has  remained  silent; 
the  dower  being  compulsory,  it  is  implied:  Bradon,  fo.  12;  Britton,  101.  —  In 
France  it  was  even  deemed  sufficient  to  promise  a  dower,  or  the  formula 
reported  by  Beaumanoir  was  made  use  of,  without  any  specific  piece  of  prop- 
erty being  made  subject  to  dower.  In  the  eighteenth  century  certain  of  the 
French  Customs  only  admitted  of  dower  by  agreement  ("Marche,"  288; 
"La  Rochelle,"  "Yssoudun,"  "Cambrai,"  "Amiens,"  etc.).  Perhaps  the 
legal  dower  had  never  been  admitted  in  these  Customs,  perhaps  it  had  ceased 
to  be  recognized  by  them.  Other  Customs  distinguish  between  the  noble 
women  and  the  plebeian  women.  Thus  the  "Cout.  de  Saintonge,"  76,  only 
confers  the  customary  dower  upon  noble  women;  the  Customs  of  "Anjou" 
and  "Maine"  refuse  to  give  it  to  them  when  they  are  the  principal  heirs  of 
their  relatives.  According  to  Rimasson,  p.  493,  Customary  dower  is  but  a 
transformation  of  the  right  of  succession  that  was  formerly  recognized  as 
belonging  to  the  spouse  and  that  was  added  to  the  marriage  portion  conferred 
by  agreement. 

2  To  the  contrary,  Rimasson,  p.  496. 

^  Beaumanoir  makes  three  assertions,  all  of  which  are  open  to  dispute: 
(a)  Philip  Augustus  was  responsible  for  the  creation  of  Customary  dower. 
But  it  is  quite  certain  that  even  before  his  time  a  legal  dower  existed.  One 
may  assume,  it  is  true,  that  this  legal  dower  had  fallen  into  disuse  in  the 
Ile-de-France  and  the  neighboring  regions.  Cf.  Rimasson,  496.  (6)  The 
Ordinance  of  1214  was  meant  to  apply  to  the  entire  kingdom.  This  is  very 
unlikely,  and,  in  fact,  it  was  not  applied  in  Normandy  and  in  the  other  coun- 
tries where  the  English  law  was  applied,  (c)  This  ordinance  must  have 
assumed  that  the  amount  of  dower  was  one-half.  But  charters  establish  the 
fact  of  the  previous  existence  of  this  quantity.  Then,  if  that  is  so,  did  the 
Ordinance  of  1214  never  exist?  It  is  hard  to  believe  that,  because  P.  de  Fon^ 
taines,  21,  45,  himself  also  speaks  of  the  enactment  of  King  PhiUp  which  con- 
ferred the  seisin  of  dower  upon  ladies  who  were  -widows.  Laboulaye  makes 
the  conjecture  that  the  ordinance  was  enacted  to  apply  to  fiefs,  which  were 
not  affected  by  dower,  according  to  the  "L.  Feud.,"  1,  9,  1.  The  word 
"ladies,"  the  exception  which  concerned  the  kingdom  and  the  great  manors, 
all  support  this  conjecture:  Blackstone,  II,  8.  Brunner,  "Festg.  f.  Dernb.," 
Berlin,  p.  41  et  seq.,  rounding  out  this  explanation,  beheves  that  Philip  Au- 
gustus at  one  and  the  same  time  converted  the  dower  of  one-third  of  the 
ownership  into  the  dower  of  one-half  of  the  usufruct,  the  usufruct  alone 
being  admissible  in  the  case  of  fiefs.  "Bret.,"  199:  "No  one  can  give  more 
than  one-third  by  way  of  inheritance  or  one-half  by  way  of  usufruct."  Cf. 
Glasson,  VII,  396. 

^  Glanville,  VI.  —  Afterwards  dower  comes  to  be  regarded  so  much  as  the 
acquitting  of  an  obligation  that  there  is  no  occasion  for  its  registration,  and 
it  is  not  subject  to  reduction  because  of  its  affecting  the  legal  share. 

770 


Topic  2]      DOWER   AND    OTHER   RIGHTS    BY    SURVIVORSHIP        [§  531 

It  was  natural  that  a  legal  dower  should  be  imposed  upon  those 
who  had  avoided  this  obligation  (for  example,  in  marriages  which 
the  priest  had  not  blessed).  Such  Avas  the  favor  with  which  dower 
was  looked  upon  that  the  wife  could  not  renounce  her  legal  dower 
by  marriage  contract;  ^  in  the  seventeenth  century,  dower  having 
become  less  of  a  necessity,  this  was  allowed."  Prearranged  dower, 
moreover,  excluded  the  legal  dower;  ^  but  it  is  to  be  noticed  that 
it  was  forbidden  to  contract  for  this  dower  during  the  mar- 
riage for  fear  it  should  only  serve  to  conceal  gifts  between 
spouses.* 

§  531.  The  Same.  —  (B)  The  amount  of  legal  dower  varied  ac- 
cording to  the  Customs;  it  was  generally  one-half,  in  conformity 
with  the  Ordinance  of  1214.^  But  the  dower  of  one-third,  or  Eng- 
lish dower,^  —  it  would  be  more  accurate  to  call  it  Norman  dowser, 
—  was  also  very  widespread,  especially  in  the  provinces  of  the 
West.^  The  dower  established  by  agreement  might  be  less  than 
the  Customary  dower,  but  could  not  exceed  it,  —  excepting,  how- 
ever, in  Paris,  Orleans  and  some  provinces  where  there  was  no 

1  Boutaric,  I,  97.  "A  fortiori,"  a  general  renunciation  during  the  mar- 
riage would  be  unlawful:  Boissonade,  p.  208;  cf.  Loysel,  151;  "F.  gen.  de 
Navarre,"  4,  1,  1.       _ 

2  Lauriere,  on  "Paris,"  247,  states  that  this  amounted  to  a  break  with  the 
practice  of  several  centuries.  The  abolition  of  the  Velleianum  Decree  of 
the  Senate,  the  custom  of  creating  the  Customary  dower  when  a  prearranged 
dower  was  established,  may  have  contributed  towards  this  result:  Pothier, 
no.  2;  Ricard,  on  "Paris,"  247;  Order  of  Jan.,  1606. 

^  "Cout.  Not.,"  51;  Desmares,  175.  Excepting  according  to  certain  Cus- 
toms in  which  the  widow  had  her  choice.  Jamont,  "These,"  p.  80  (Brittany); 
Folhier,  no.  3. 

^  Desmares,  219;  "Gr.  Cout.,"  II,  32. 

6  Beaumanoir,  loc.  cit.;  Viollet,  "Et.  de  St.  Louis,"  I,  138;  "Cout.  Not.,"  59; 
"Ohm,"  IV,  346;  "A.  C,  Artois,"  32;  "Paris,"  248.  The  dower  of  one-half 
seems  to  be  more  frequent  among  plebeians,  the  dower  of  one-third  among 
nobles  (perhaps  because  of  the  right  of  primogeniture).  J.  d'lhelin,  179: 
the  nobleman's  widow  has  half  of  the  fiefs,  the  commoner's  widow  all  the  pos- 
sessions; "Cout.  des  Bourg.,"  186;  Varin,  "Arch,  de  Reims,"  I,  609.  —  "There 
cannot  be  dower  upondower,"  post,  "Dower  of  Children." 

^  That  is  to  say,  which  was  in  use  in  England;  but  the  English  themselves 
had  borrowed  this  from  the  Normans,  and  we  have  aheady  seen  that  this 
amount  is  met  with  as  early  as  the  barbarian  period.  Cf.  right  of  primo- 
geniture, which  is  of  two-thirds. 

7  "T.  A.  C,  Norm.,"  3  (excepting  the  chief  manor);  5,  2;  79;  Dii  Cange, 
see  "Manerium,"  "Mesnagium,"  "Mesuagium";  "Summa,"  101:  one-third  of 
fiefs;  one-half  of  burgage  tenures;  "Bret.,"  336;  "Anjou,"  "Maine,"  "Tou- 
raine,"  etc.;  "Et.  de  St.  Louis,"  I,  17:  one-third  for  nobles,  one-half  for  others; 
1, 137;  Glanville,  XII,  20;  " Magna Charta"  of  1215,  c.  8.  Cf.  "Magna  Charta" 
of  1217,  c.  7;  BSmont,  "Chartres,"  p.  50.  We  also  find  in  England,  alongside 
of  the  common-law  dower,  which  is  of  one-third,  dower  of  one-half  (socage, 
gavelkind)  and  even  of  all  the  husband's  lands.  One-third  at  Naples  and  in 
Sicily  (Pertile,  III,  334,  337;  Brunneck,  p.  37)  in  Castille]  ("  F.  Viejo,"  V,  1); 
"Ass.  de  J6r.,"  J.  d'lhelin,  71,  91;  Geoff,  le  Tort.,  16;  Ficker,  III,  244. 

771 


§  531]  SYSTEM    OF   PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

maximum.^  Whether  equal  or  less,  it  excluded  ^  Customary  dower, 
and,  as  the  Customs  did  not  fix  any  minimum,^  the  dower  of  the 
widow  ran  the  risk  of  being  very  greatly  reduced  as  a  result  of 
special  agreements;  there  was  nothing  anomalous  in  this,  after 
she  was  allowed  to  renounce  her  dower  by  marriage  contract. 

§  532.  The  Same.  —  (C)  The  seat  of  the  Customary  dower  is  ex- 
clusively the  husband's  own  inheritance;  ^  movables  and  acquests 
are  not  subject  thereto.  One  would  rather  expect  the  opposite 
result,  for  the  family  possessions  ought,  it  seems,  not  to  have 
been  affected  by  the  rights  of  the  wife.  But  over  the  movables 
and  jointly  acquired  property  of  the  marriage  this  right  was 
converted  into  a  right  of  community,  which  had  the  advantage 
of  leaving  to  the  husband  the  free  disposal  of  this  category  of 
possessions.^  According  to  the  Ordinance  of  1214,  dower  only 
affected  those  personal  belongings  of  which  the  husband  was  pos- 
sessed at  the  time  of  the  marriage;  ^  by  this  it  would  have  been 
too  much  restricted,  because  in  most  cases  the  husband  is  too 
young  at  that  time  to  have  any  personal  belongings;  so  the  dower 
was  by  contract  extended  to  present  and  future  personal  belong- 
ings, according  to  a  practice  which  is  found  from  the  time  of  the 
barbarian  period.^  Frequently,  the  father  in  consenting  to  the 
marriage,  also  consented  to  subject  the  family  possessions  to 
the  dower;  ^  this  consent  was  implied  where  the  son  merely  pro- 

1  "T.A.C.,  Norm.,"  79,2;  "Magna  Charta,"  1215,8;  "Olim,"  IV,  346; 
"Jostice,"  p.  217,  219;  "Const.  Chat.,"  78;  Loysel,  139;  Desmares,  137,  218, 
makes  a  distinction:  commoners  can  give  more  than  one-half,  noblemen 
cannot;  "Cout.  Not.,"  59;  "Norm.,"  371;  "Poitou,"  259.  Divided  dower  in 
Burgundy:  Robin,  "These,"  p.  165.  —  This  restrictive  tendency  comes  to 
light  as  early  as  the  barbarian  period  and  is  in  accord  with  the  rights  of  the 
family.  —  Cf.  Italy,  Brandileone,  "Arch.  Giur.,"  67, 2.  Lauriere  and  Lamoig- 
non  complain  of  the  conferring  of  enormous  dowers. 

2  "T.  A.C.,  Norm.,"  79;  "Jostice,"  p.  219;  "Cout.  Not.,"  51;  Desmares, 
175;  "Paris,"  261;  Loysel,  147,  151:  Troyes,  Meaux,  etc.,  option  between  the 
two  kinds  of  dower. 

2  The  English  law  admitted  that  the  wife  could  alwaj'S  claim  her  legal  dower 
of  one-third:  Littleton,  39,  41.  This  was  not  so  in  the  thirteenth  century: 
"Magna  Charta,"  c.  8. 

*  Fiefs  or  plebeian  tenures.  Cf.  Boutaric,  I,  98.  A  subsidiary  dower 
upon  jointly  acquired  property  and  movables  according  to  certain  Customs: 
Pothier,  nos.  17,  98;  "T.  A.  C,  Norm.,"  5,  4;  79,  2;  "T.  A.  C,  Bret.,"  30,  40; 
"Orleans,"  221;  "Paris,"  257. 

^  Survivals  of  the  old  law:  J.  d'Ibelin,  177  (dower  upon  the  acquests). 

6  Glanville,  VI,  1;  "Magna  Charta"  of  1215,  c.  8;  cf.  "Magna  Charta"  of 
1217  and  1224;  Pollock  and  Maitland,  II,  419.  This  is  normally  the  object 
of  the  prearranged  dower,  of  the  "libelli  dotis." 

'  Thevenin,  nos.  175,  176;  D.  Vaissette,  "Preuves,"  no.  502.  —  To  the  same 
effect,  Beaumanoir,  13,  13  et  seq. 

8  Anglo-Norman  dower,  "ex  assensu  patris":  "T.  A.  C,  Norm.,"  p.  81; 
Viollet,  "Et.  de  St.  Louis,"  III,  p.  276  {id.  in  Touraine,  Anjou,  etc.);  Loysel, 

772 


Topic  2]      DOWER   AND   OTHER   RIGHTS   BY   SURVIVORSHIP        [§  533 

ceeded  by  making  a  gift  of  present  and  future  possessions.  What 
agreements  accomplished,  the  Custom  accompHshed  also,  and 
with  all  the  more  ease  because  the  Customary  dower  was  an  ali- 
quot part.^  The  personal  belongings  coming  from  collaterals  or 
descendants  were  alone  ordinarily  excepted  from  the  appropria- 
tion made  for  dower.^  Even  taking  this  restriction  into  account, 
one  can  see  that  a  large  number  of  immovables  were  found  to  be 
incapable  of  being  disposed  of.^  The  feeling  of  practical  necessity, 
combined  with  a  desire  not  to  take  away  the  personal  belongings 
from  the  administration  of  the  relatives  to  whom  they  belonged, 
often  led  to  the  substitution  of  a  dower  consisting  of  a  sum  of 
money,  especially  under  the  form  of  a  rent-charge  for  dower  in 
kind.-* 

§  533.  The  Same.  —  (D)  The  wife  obtains  her  dower,  upon  going 
to  bed,  it  was  formerly  said;  ^  the  majority  of  the  Customs  by  the 
sixteenth  century  have  abandoned  this  archaic  rule,  and  no  longer 
demand  that  the  marriage  shall  have  been  consummated.  The 
dower  accrues  merely  by  virtue  of  the  nuptial  benediction.^ 

138;  L'Hommeau,  III,  56.  This  was  especially  useful  in  a  case  where  the 
son  died  too  young  to  have  taken  the  succession  of  his  parents;  his  widow 
would  none  the  less  have  a  dower  over  the  hereditary  share  which  would 
have  come  to  him:  "Poitou,"  260  ("Semi-dower")- 

1  "T.  A.  C,  Norm.,"  79;  cf.  "Summa,"  101;  Beaumanoir,  13,  14;  "Gr. 
Cout.,"  II,  32,  Desmares,  175,  21.5;  "Gout,  not.,"  51.  Loysel,  137,  attributes 
the  extending  of  dower  to  include  future  personal  belongings  to  an  advocate 
of  the  fourteenth  century,  Eudes  de  Sens;  but  as  early  as  1268  the  "Glim" 
mentioned  it:  "Paris,"  248.  —  Entailed  possessions  were  subject  to  dower  if 
there  were  no  others:  "Ord."  of  1747,  45  et  seq.;  Pothier,  no.  61. 

*  Boutaric,  I,  97;  Beaumanoir,  13,  13. 

3  According  to  the  "Ass.  de  Jer.,"  J.  d'Ibelin,  220,  in  the  Customs  of 
"Berry"  and  " Bourbonnais "  (Pothier,  no.  13)  and  at  Lincoln  in  England, 
etc.,  dower  is  only  taken  out  of  possessions  of  which  the  husband  is  seisetl 
at  the  time  of  his  death.  Thus  any  alienation  executed  by  the  husband 
cannot  be  attacked.  Cf.  Rimasson,  p.  495;  "A.  C.,  Anjou,"  ed.  B.-B.,  1, 
p.  517. 

^  In  English  law  from  the  time  of  Henry  VIII  the  system  of  jointures  or 
rents  in  money  upon  some  immovable  of  the  husband's  came  to  be  sub- 
stituted almost  entirely  in  practice  for  dower  in  kind,  which  had  the  dis- 
advantage of  making  the  husband's  possessions  incapable  of  being  disposed 
of:  Blacicslone,  II,  8;  Lehr,  p.  105;  Chaisemartin,  p.  340:  in  Saxony  a  frequent 
changing  of  the  dower  into  a  life  rent;  Stobbe,  IV,  114. 

5  Loysel,  140;  Beaumanoir,  13,  25;  "Summa  Norm.,"  101;  "Jostice," 
p.  219.  Survival  in  the  "N.  C.,  Bret.,"  4,50,  where  it  is  merely  required 
that  the  wife  shall  have  put  her  foot  into  the  bed:  Buche,  "N.  R.  H.,"  1885, 
653;  Pothier,  no.  147;  "Toulouse,"  113  (id.  for  the  increase);  Littleton,  36 
(the  wife  only  has  a  right  to  the  dower  if  she  is  more  than  nine  years  old  at 
the  time  of  her  husband's  death) ;  cf.  pout,  the  basis  of  the  community.  The 
old  rule  is  to  be  accounted  for  by  remains  of  the  "Morgcngabe,"  the  "Beil- 
agcr,"  and  marriage  perfected  by  consummation.  "Osculum,"  "Ass.  do 
J6rus.,"  "G.  des  B.,"  145  (re-enacting  "God.  Just.."  5,  3,  16). 

6  Loysel,  140;  "Bret.,"  450;  Launhre,  on  "Paris,*'  248  (II,  295). 

773 


§  534]  SYSTEM    OF   PROPERTY   BETWEEN    SPOUSES         [Chap.  V 

§  534.  The  Same.  —  (E)  The  forfeiture  of  dower  arises  from  the 
adultery  of  the  wife,  from  the  fact  that  she  has  abandoned  her 
husband,  or,  as  a  general  thing,  that  the  separation  of  domicile 
has  been  adjudged  against  her;  or,  again,  owing  to  misconduct  of 
the  wife  during  the  year  of  mourning.^  A  second  marriage  com- 
pels the  woman  who  has  dower  to  furnish  surety,  but  the  dower  is 
not  lost  unless  there  is  an  agreement  to  that  effect.^ 

§  535.  Rights  of  the  Wife  over  the  Dower.  —  (A)  During  the 
marriage.  Prearranged  dower  affecting  specific  possessions  was 
at  first  considered  as  the  property  of  the  wife.^  But,  accord- 
ing to  the  classical  theory,  the  husband  kept  the  ownership,  ad- 
ministration and  enjoyment  of  it  during  the  marriage.  All  the  more 
was  this  so  with  respect  to  the  Customary  dower,  which  affects 
a  certain  quantity  —  a  half  or  a  third  —  of  the  possessions  of  the 
husband.'*  If  the  latter  no  longer  loses  the  ownership  of  dower, 
he  only  has  a  limited  right  of  disposal ;  he  cannot  by  means  of  any 
deed,^  whether  for  a  consideration  or  gratuitous,  deprive  the  wife 
of  her  dower.^  When  he  alienates  possessions  which  are  encum- 
bered with  dower,  the  alienation,  though  it  cannot  be  attacked 

1  "Gr.  Cout.,"  II,  32;  Loijsel,  174;  "Norm.,"  361;  "Bret.,"_450;  GlanvUle, 
VI,  17;  Blackstone,  II,  8;  Pothier,  no.  257;  Dumoulin,  on  "Paris,"  30;  Loysel, 
175;  Pothier,  no.  258  (Order  of  1571);  "F.  de  Nav.,"  4;  Stohhe,  III,  116.— 
"Anjou,"  311:  Misappropriation  of  dower,  —  that  is  to  say,  abuse  of  its 
enjoyment.  —  Some  of  tlie  Customs,  "Touraine,"  337;  "Maine,"  313; 
"Anjou,"  310;  and  "Bret.,"  208,  consider  as  being  inconsistent  the  quality 
of  dowager  and  of  legatee  or  donee;  in  Paris  the  wife  can  have  at  one  and  the 
same  time  her  dower  out  of  the  personal  belongings  and  a  gift  out  of  the 
portion  of  the  jointly  acquired  property  of  the  community  which  was  con- 
tributed by  her  husband.  —  "Bourg.,"  38:  renunciation  of  the  community 
causes  loss  of  dower.     Contra,  "A.  C.,"  (in  Giraud),  Art.  3. 

2  Fleury,  I,  385;  Pothier,  no.  263;  "Bret.,"  254;  "Ass.  de  J6r.,"  "C.  des 
B.,"  167;  "Olim,"  III,  1193,  3. 

'  The  husband  makes  a  delivery  to  the  wife.  Cf.  a  charter  of  1069  in 
Beugnot,  "Ass.  de  Jer.,"  II,  116:  "I  give  you  one-half  of  that  which  I  shall 
receive  from  the  inheritance  of  my  mother";  then  comes  a  specification  of 
the  property:  "hec  autem  trado  tibi  sub  attestatione  carte  hujus"  (Verdun). 
Cf.  Lauriere,  on  Loysel,  155;  P.  de  la  Janes,  nos.  405,  409:  the  ordinary  clause 
of  disseisin-seisin  is  sufficient.  Germany:  formalities  of  the  "Auflassung" 
in  general,  but  in  families  of  princes  a  mere  agreement  is  sufficient:  Stobbe, 
IV,  115. 

*  The  wife  could  at  the  most  be  considered  as  a  joint  owner  of  one-half 
or  one-third  of  the  husband's  possessions. 

^  "T.  A.  C.,  Norm.,"  4;  79,  12:  confiscation  of  the  husband's  possessions 
carries  with  it  loss  of  dower.     Contra,  Loysel,  142  et  seq.;  L'Hommeau,  III,  55. 

*  "Jostice,"  p.  169:  "Dower  cannot  be  encumbered";  Chaisemartin, 
p.  339;  Rimasson,  p.  158.  The  inalienabihty  or  quasi-inahenability  of  dower 
was  one  of  the  causes  of  its  being  done  away  with.  Cf.  the  English  law  of 
1833  (Lehr,  p.  104):  the  husband  is  authorized  to  deprive  the  w-ife  of  her 
dower  unless  he  shall  have  stipulated  not  to  do  so  in  the  marriage  contract; 
purchasers  or  creditors  of  the  husband  are  consequently  preferred  to  the  widow. 

774 


Topic  2]      DOWER   AKD   OTHER   RIGHTS   BY   SURVIVORSHIP        [§  535 

during  the  marriage,  is  void  as  against  the  wife  upon  its  dissolu- 
tion.^ From  this  it  follows  that:  (a)  if  the  husband  survives,  as 
there  is  no  longer  any  dower,  this  deed  cannot  be  attacked ;  (6)  if 
the  dower  is  prearranged,  the  wife  who  survives  has  the  right  to 
reclaim  -  the  personal  belonging  which  has  been  alienated,^  though 
the  grantee  who  has  been  ousted  may  bring  an  action  of  warranty 
against  the  heirs  of  the  husband;  (c)  if  the  dower  is  Customary,  the 
wife  who  survives  may  reclaim  possessions  alienated  by  the  hus- 
band only  if  there  are  no  personal  belongings  in  the  inheritance ; 
the  heir  is  thus  compelled  to  provide  her  with  her  dower  first  of 
all  out  of  the  hereditary  possessions.  It  of  course  follows  that 
these  solutions  are  applied  to  agreements  creating  rights  in  land 
as  well  as  to  alienations  properly  so  called.  The  husband  whose 
credit  was  found  to  be  very  much  affected  by  the  rights  of  his 
wife,  and  third  parties  with  whom  he  dealt,  could  not  fail  to  at- 
tempt to  provide  for  themselves  against  the  danger  of  an  eviction. 
There  were  cases  in  which  eviction  could  not  take  place,  for  ex- 
ample, the  case  of  sworn  poverty;  for  if  the  rights  of  the  family 
were  blotted  out  under  this  hypothesis,  all  the  more  should  it  be 
the  same  with  the  rights  of  the  wife.'*  In  all  periods  it  seems  that 
alienations  made  by  the  husband  with  the  consent  of  the  wife  have 
been  made  valid;  numerous  examples  of  this  are  to  be  found  dur- 
ing the  barbarian  period.^  During  the  feudal  period  renunciation 
of  her  rights  by  the  wife  is  authorized  ^  on  condition  that  it  shall 
take  place  under  oath,^  and  when  the  dower  has  been  prearranged 

^  This  general  principle  has  not  been  everywhere  applied  in  the  same 
way.     Our  outline  is  therefore  only  general. 

2  For  how  long  a  time?  Certain  Customs  only  give  her  a  period  of  a  year 
and  a  day.  Generally  she  has  the  ordinary  periods  of  prescription  reckoned 
from  the  time  of  the  husband's  death:  Dumoulin,  s.  119;  "Gr.  Perche"; 
"Paris,"  117;  L'Hommeau,  p.  482.  The  Decree  does  not  extinguish  the 
dower. 

3  Beaumanoir,  13,  5  (c/.  21,  3):  after  her  death  the  inheritance  reverts 
to  the  purchaser.  Contra,  if  the  dower  belongs  to  the  children:  "T.  A.  C, 
Norm.,"  79;  "Summa,"  101;  Blackstone,  II,  8;  Glanville,  VI,  3:  same  solution, 
but  with  this  exception,  that  if  the  wife  offers  opposition  to  the  alienation 
she  loses  her  dower;  this  is  because  she  is  bound  not  to  gain.say  her  husband. 

*  "Gr.  Cout.,"  II,  32;  Boularic;  "Actes  du  Pari.,"  no.  7823.  Other  cases 
of  necessary  ahenation:  Pothier,  no.  84. 

*  Rimasson,  p.  397. 

8  Beaumanoir,  13,  5;  "Olim,"  I,  735  (in  1268):  expressed  renunciation; 
"Jostice,"  p.  169  (grant  to  the  wife);  Boutanc,  I,  97;  "L.  d.  Droiz,"_  849; 
"T.  A.  C,  Norm.,"  4  (the  wife's  renunciation  is  not  binding).  The  wife  in 
Scotland  renounces  her  dower  without  any  formalities;  in  English  law  the  same 
result  is  arrived  at  indirectly  by  means  of  the  proceeding  of  the  fine  and 
recovery. 

'  "Et.  de  St.  Louis,"  I,  173;  "Artois,"  33.  The  other  texts  do  not  mention 
it:  "T.  A.  C,  Norm.,"  4;  "T.  A.  C,  Bret.,"  30,  40;  "F.  de  Beam,"  272. 

775 


§  535]  SYSTEM    OF   PROPERTY   BETWEEN   SPOUSES         [Cn.'U'.  V 

the  amount  renounced  must  be  reinvested.^  This,  however,  only 
came  about  very  gradually,  for  it  was  to  be  feared  that  the 
consent  of  the  wife  was  not  free;  if  during  the  marriage  she 
could  not  give  up  her  dower  in  mass  and  all  at  once,  she  ran  the 
risk  of  being  led  to  lose  it  bit  by  bit  by  means  of  successive  re- 
nunciations in  proportion  to  the  alienations  made  by  the  husband. 
In  the  sixteenth  century  the  oath  is  no  longer  made  use  of.  Re- 
investment, properly  so  called,  has  given  way  to  the  recompense 
or  legal  reinvestment;^  and,  finally,  the  security  of  the  wife 
consisted  in  an  implied  mortgage.^ 

§  536.  The  Same.  —  (B)  At  the  death  of  the  hushand.  Only 
then  did  this  right  vest  for  the  benefit  of  the  wife,  for  the  rule  is 
that  "a  husband  never  paid  dower."  '^  Loysel,  14G,  says  that 
"Customary  dower  gives  seisin;^  prearranged  dower  had  to 
be  asked  for  at  law,  which  is  something  that  is  beginning  to  be 
changed  almost  everj-where."  ^  In  prearranged  dower  the  pos- 
sessions subject  to  the  dower  were  known  beforehand.  On  the 
other  hand,  it  was  necessary  to  partition  the  personal  belongings 
of  the  husband  in  order  to  know  which  of  them  were  affected  bv 


1  "Et.  de  St.  Louis,"  I,  173;  Boutaric,  I,  97;  "Artois,"  33. 

2  Loysel,  lol.  Lauriere  states  that  the  renunciation  is  valid  even  if  the 
wife  does  not  take  any  other  property  from  the  husband's  succession  in  order 
to  indemnify  herself.  Cf.  renunciation  of  the  Velleianum  Decree  of  the 
Senate:  Meynial,  "N.  R.  H.,"  1900. 

3  Loysel,  155.  Rank,  Pothier,  no.  193  (Order  of  1661:  after  the  marriage 
portion  and  before  the  reinvestment  of  the  personal  belongings),  343;  Boissoti- 
ade,  p.  178.  The  mortgage  affects  the  hereditary  possessions  held  by  the  heirs 
and  possessions  which  have  been  aUenated  and  are  held  by  third  party  pur- 
chasers. The  implied  mortgage  was  brought  about  in  two  ways:  (a)  system 
of  rents  assigned  over  a  piece  of  land;  (b)  notarial  deeds:  see  "System  of 
Mortgages";  "Toulouse,"  118:  " assignamenta  pro  necessariis  dotibus  et 
dotaliciis."  A  similar  mortgage  for  the  increase  of  the  marriage  portion; 
the  wife  could  not  renounce  it  (cf.  post,  "Marriage  portion  system"),  whereas 
she  was  allowed  to  renounce  the  dower  mortgage. 

*  Dower  even  went  so  far  as  tliis:  Loysel,  141,  172.  However,  in  case  of  a 
judicial  separation  or  separate  maintenance  the  wife  had  a  right  to  reclaim 
her  dower  "during  the  hfetime  of  her  baron."  "Ass.  de  Jerus.,"  "C.  des 
B.,"  171;  Viollet,  p.  790;  Pothier,  no.  153;  Fleury,  "Inst.,"  I,  386.  In  the 
seventeenth  century  the  wife  who  had  obtained  a  separate  maintenance  only 
obtained  an  allowance,  the  "Semi-dower":  see  Ferriere. 

5  Loysel,  141;  Desmares,  216;  "Gr.  Gout.,"  II,  33;  "Paris,  A.  C.,"  140, 
143;  "N.  C.,"  236.  The  issues,  arrears,  complaints:  Pothier,  159;  Stobbe, 
IV,  115. 

^  Competence  of  the  ecclesiastical  courts;  in  the  thirteenth  century  the 
lay  courts  have  jurisdiction  in  the  action  for  possession,  and  in  the  sixteenth 
century  there  is  no  longer  any  question  of  ecclesiastical  jurisdiction:  P.  de 
Fontaines,  21,  52;  "Glim,"  in  1269,  in  Boutanc  c,  1364;  "T.  A.  G.,  Norm.," 
5,  7 :  delays  in  the  ecclesiastical  courts  as  a  result  of  a  series  of  appeals  carried 
as  far  as  the  pope:  Glanville,  VI,  11,  14;  Boutaric,  II,  1;  Loysel,  146;  Beau- 
manoir,  11,  9;  "L.  d.  Dr.,"  421. 

776 


Topic  2]      DOWER   AND    OTHER    RIGHTS    BY    SURVIVORSHIP        [§  537 

the  Customary  dower;  ^  according  to  certain  Customs,  the 
"woman  who  has  dower  apportions  and  the  heir  chooses";^ 
others  give  the  wife  the  choice  of  possessions.  —  The  estate  of 
the  wife,  especially  in  dower  by  agreement,  consisted  at  first  in 
a  true  ownership,  which  was  sometimes  perpetual  and  sometimes 
for  life;  ^  the  latter  prevailed,  and  was  transformed  under  the  in- 
fluence of  the  Roman  theories  into  a  mere  enjoyment  or  usufruct, 
which  was  extended,  it  is  true,  by  reason  of  its  origin,  in  a  very 
broad  manner.^  Dower  is  free,  it  is  said;  ^  thus,  the  widow  does 
not  have  to  pay  any  relief;  ^  she  does  not  contribute  to  the 
debts  on  movables  of  the  inheritance  of  her  husband;  ^  and, 
finally,  in  many  of  the  Customs  she  furnished  no  surety.^ 

§  537.  The  Dower  of  Children  ^  is  nothing  else  than  the  dower 
of  the  mother  ^°  which  has  become  a  Customary,  "legal  share"  " 

1  "Dwelling-house,"  post;  Beaumanoir,  13,  19. 

2  Beaumanoir,  13,  8,  24;  "Bret.,"  31,  33;  Loysel,  156  et  seq. 

3  Viollet,  p.  777;  "Et.  de  St.  Louis,"  I,  132,  137.  Ownership  according 
to  certain  Customs,  —  for  example,  "Sens,"  169;  or  by  means  of  an  agree- 
ment: P.  de  la  Janes,  no.  400.  Dower  without  any  reversion,  see  Ferriere; 
Loysel,  148;  "T.  A.  C,  Norm.,"  6.  The  "Cout.  d'Aoste,"  5,  7,  15,  allowed  the 
wife  to  dispose  of  her  dower  without  leaving  any  part  of  it  to  the  children, 
"which  custom  seemed  to  be  rather  harsh":  Fertile,  III,  337;  Stobbe,  IV,  115. 
—  The  general  tendency,  which  was  in  conformity  with  the  general  con- 
ception of  the  gift,  must  have  been  to  confer  upon  the  wife  only  an  ownership 
limited  by  the  right  of  reversion  to  the  donee  and  his  heirs;  this  right  became 
stronger  when  the  dowager  had  only  a  usufruct,  whereas  in  the  case  of 
ordinary  gifts  it  disappeared  or  was  reduced  to  the  condition  of  a  right  of 
succession:  Brunner,  "Forsch.,"  733.  Cf.  Rimasson,  pp.  403,  159  (Roman 
influence). 

^  The  idea  of  ownership  enables  us  to  understand  why  the  widow  origi- 
nally had  the  honorary  rights  connected  with  the  fief  (hunting,  presentation 
of  benefices,  etc.),  gave  homage,  paid  the  rehef  ("Gr.  Cout.,"  II,  27.  Cf. 
lease,  appanage,  pledge),  paid  not  only  the  ordinary  charge,  such  as  the  quit- 
rent,  but  the  extraordinary  charges,  such  as  the  Church  tallage.  —  When 
she  became  a  mere  usufructuary  she  no  longer  had  anything  excepting  rights 
of  user,  did  not  pay  any  relief  ("Paris,"  40),  and  very  often  had  to  give  surety. 
Cf.  Fothier,  nos.  53  and  230. 

5  The  dowager  must  have  taken  the  issues  free  and  clear:  Beaumanoir, 
12,  2;  13,  7,  22  et  seq.;  Bracton,  II,  40,  4;  Brittoji,  103;  Stobbe,  III,  116. 

•  Loijsel,  154;  "Olim,"  I,  419;  "Paris,"  40;  F.  de  la  Janes,  no.  402. 

7  Beaumanoir,  13,  9;  "Olim,"  I,  467,  1;  "Const,  du  Chat.,"  §  78  (ed. 
Mortet),  note;  -post,  "Community";  Renusson,  c.  8. 

*  Loysel,  153  (she  keeps  up  the  land,  and  pays  the  charges  and  ordinary 
rents  of  the  land,  but  not  those  which  have  been  constituted  during  the  mar- 
riage); Beaumanoir,  30,  40;  Desmares,  187,  196;  "Cout.  Not.,"  104;  "Paris," 
252  264'  Fothier  nos.  53  210. 

9  Fothier,  no.' 228  el  'seq.;  Marchant,  "These,"  1899  (bibl.);  R.  Caillemer, 
"Melanges  Appleton,"   1903   ("Douaire  des  Enfants"). 

1"  Save  a  few  exceptions:  Lebrun,  "Succ,"  II,  5. 

"  An  exTaression  of  Loysel,  158.  —  Cf:  the  "  Verfangenschaf t "  of  the  German 
law:  Stobbe,  IV,  105  (bibl.),  in  the  hands  of  the  surviving  spouse  the  immovable 
possessions  of  the  predeceased  spouse  constitute  with  those  of  the  former  a 
mass  which  is  inalienable  unless  the  consent  of  the  children  be  given;  these 

777 


§  537]  SYSTEM   OF  PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

for  the  children.^  If  the  mother  dies  before  the  father,  the  children 
are  given  dower  in  her  stead  and  place;  ^  but  their  right  only  vests 
at  the  death  of  the  father.  Up  to  that  time  the  dower  cannot 
be  disposed  of  by  him;  it  is  even  more  inalienable  than  that  of 
the  wife,  because  she  could  renounce  it  and  the  children  cannot. 
^^^len  the  father  dies  ^  the  children  are  given  a  choice  between  the 
paternal  inheritance  and  the  dower,  because  "No  one  can  be  heir 
and  have  dower  at  the  same  time."  If  they  accepted  the  inherit- 
ance the  dower  was  not  separated  from  the  latter;  they  had  to 
pay  the  debts  of  the  father  and  abide  by  alienations  made  by 
him.  If  they  renounced,  they  were  authorized  to  take  dower  free 
from  the  paternal  debts  and  no  transferee  could  set  up  against 
them  any  alienation  or  agreement  conferring  real  rights.  How- 
ever, they  were  held  bound  to  deduct  from  the  dower  gifts  which 
they  had  received,  because  no  one  can  have  dower  and  be  a  donee 
or  legatee  at  the  same  time.  Thus  the  dower  of  children  appears 
to  be  a  more  powerful  form  of  reservation;  "*  the  latter,  in  fact,  was 

possessions  are  "Verfangen,"  that  is  to  say,  chained  up  for  the  benefit  of  the 
children;  in  case  the  surviving  spouse  marries  again  they  are  kept  for  the  chil- 
dren of  the  first  marriage  to  the  exclusion  of  those  of  subsequent  marriages. 
Cf.  devolution  and  mutual  gift,  ante.  The  theory  of  "  Verf angenschaf t " 
gives  rise  to  controversy  (summed  up  in  Stobbe,  IV,  128).  From  the  his- 
toric point  of  view  one  should  notice  its  variations :  the  surviving  spouse  found 
himself  originally  at  the  head  of  the  community,  then  his  possessions  were 
distinguished  from  those  of  the  predeceased,  and  over  the  latter  he  was  given 
merely  an  ownership  for  life  or  a  usufruct.  Cf.  as  to  this  evolution,  Heusler, 
II,  457. 

1  P.  de  Fontaines,  34,  8;  Boutaric,  "Arr.  du  Pari.,"  March  15,  1326;  "Jos- 
tice,"  10,  21;  12,24;  12,  6;  8,3;  Beaumanoir,  13,2-18  (villages  alone);  "A.  C, 
Artois,"  35;  "A.  C,  Picardie,"  pp.  151,  154;  "Gr.  Gout.,"  II,  32;  Desmares, 
175,  217,  283;  "Gout.  Not.,"  82;  Boutaric,  I,  97  (note  by  Charondas);  "Gonf. 
des  Gout,  de  Guenois,"  loc.  cit.;  "Paris,"  248  et  seq.;  Ferriere  on  this  Art.; 
Marchant,  pp.  54,  61. 

2  Which  means  that  "there  is  no  dower  upon  dower":  Loysel,  168;  "Jos- 
tice,"  p.  256;  Beaumanmr,  13,  2,  18;  "Gonst.  Ghat.,"  26;  "Gr.  Gout.,"  II,  27. 
Thenceforth  in  the  case  of  a  second  marriage  the  dower  of  the  second  \vife 
is  one-fourth,  that  of  the  third  one-eighth,  etc.;  in  fact,  the  only  thing  that 
is  left  at  the  disposal  of  the  father  who  remarries  is  one-half  of  his  personal 
belongings;  and,  the  dower  being  of  one-half,  this  will  amount  to  one-fourth 
(or  the  half  of  one-half)  of  the  inheritance  properly  speaking,  etc.:  "Paris," 
253;  "Artois,"  135. 

'  Cf.  in  the  Roman  law  the  rule,  "Dotis  causa  perpetua  est."  The  in- 
alienability of  the  land  constituting  the  marriage  portion,  which  is  inspired 
by  the  thought  of  allowing  the  widow  to  marry  again,  was  diverted  from  this 
object  and  served  to  keep  the  marriage  portion  in  the  family. 

^  The  legal  share  in  the  reservation  must  be  paid  by  the  father  and  the 
mother;  the  dower,  by  the  father  alone.  Dower  affects  present  personal 
belongings  at  the  time  of  the  marriage,  or  those  which  are  acquired  later  on, 
even  though  they  be  alienated  for  a  consideration,  and  not  merely  when  they 
are  given  or  bequeathed.  Dower  is  only  charged  with  debts  contracted 
previous  to  the  marriage;  on  the  contrary,  debts  contracted  during  the  mar- 
riage are  paid  out  of  the  legal  share  and  the  reservation.     In  order  to  have 

778 


Topic  2]      DOWER   AND   OTHER   RIGHTS   BY   SURVIVORSHIP        [§  538 

only  an  obstacle  to  gifts  by  will.^  Dower  is  connected  with  the 
very  old  institutions,  inspired  by  the  old  spirit  of  community  in- 
terests.^ It  is  therefore  not  very  difficult  to  account  for  the  fact 
that  they  succeeded  in  maintaining  this  ground  until  the  end  of 
the  Old  Regime  in  certain  Customs,  such  as  that  of  Paris,  but 
that  at  the  same  time  they  did  not  have  sufficient  strength  to 
become  generalized  or  to  become  common  law. 

§  538.  The  Increase  of  the  Marriage  Portion  is  the  dower  of 
countries  of  written  law.^  It  has  the  same  object  and  the  same 
characteristics,^  but  not  the  same  origin.  The  amount  of  the  in- 
crease varies  according  to  localities;  as  a  general  thing,  it  is  pro- 
portional to  the  marriage  portion  to  which  it  is  added,^  and  the 
amount  of  which  it  increases  J^  Sometimes  it  is  equal  to  the  mar- 
dower  one  must  renounce  the  position  of  heir.  The  children  can  be  de- 
prived of  dower  (and  not  of  the  legal  share  or  of  the  reservation)  by  a  clause 
in  the  marriage  contract,  dower  not  being  subject  to  the  rules  relative  to 
primogeniture:  Loysel,  163.  These  peculiarities  are  to  be  accounted  for  by 
the  fact  that  from  the  day  of  the  marriage  the  children  acquire  the  dower 
just  as  though  a  delivery  of  it  had  been  made;  they  get  it  "jure  contractus," 
and  not  "jure  successionis " :  P.  de  la  Janes,  409. 

1  The  customary  third  in  Normandy,  introduced  for  the  first  time  in 
the  "Custom"  of  1583,  Art.  399  et  seq.  (see  Basnage,  etc.),  is  a  sort  of  legal 
share,  —  the  only  one,  moreover,  which  was  recognized  in  this  province, 
and  one  which  the  Custom  gave  to  the  children  in  the  form  of  the  ownership 
of  certain  of  their  father's  and  mother's  possessions  in  case  they  gave  up  their 
succession,  and  of  which  they  could  only  be  deprived  by  being  disinherited: 
see  Ragueau,  Guyot. 

2  During  the  barbarian  period  it  is  not  a  rare  thing  for  the  widow  to  be 
unable  to  dispose  of  the  marriage  portion  given  by  her  husband  to  the  preju- 
dice of  her  children;  in  case  of  a  second  marriage  the  surviving  husband  is 
forbidden  to  dispose  of  it.  Contra,  "N.  R.  H.,"  1884,  654.  Can  one  also 
say  that  the  dower  consisting  of  ownership  naturally  passed  to  the  children? 

*  Terminology:  "Donatio propter nuptias,"  "sponsalicium,"  "augmentum," 
"agenciamentum,"  "osculum":  "Bord.,  A.  C,"  111;  "Cahors,"  22;  "Ass.de 
J6rus.,"  "C.  des  B.,"  167;  "Toulouse,"  113  et  seq.;  "Angoumois,"  47;  Viollet, 
p.  810.  "Arras,"  in  Spain;  "Screix"  (increase)  in  Roussillon  and  Catalonia. 
B.  d'Argis,  p.  98  (advantage  by  contract).  Italy:  "contrados,"  cf. 
"avTKp^pvT),"  "incontro,"  " contrafatto,"  "antefatto"  ("maximum").  German 
law,  see  "Widerlage." 

■•  Boucher  d'Argis,  p.  25  (comparison  with  dower).  Effects  during  the  life 
of  the  husband:  "Toulouse,"  118,  153;  "Tonneins,"  84.  —  There  are  Cus- 
toms according  to  which  the  widow  has  the  increase  and  the  dower  both  at 
the  same  time.  In  Navarre  the  widow  of  a  noble  has  the  usufruct  of  all  her 
husband's  possessions,  besides  the  "arras"  and  one-half  of  the  acquests. 

^  Before  the  time  of  Justinian  the  antenuptial  gift  was  already  in  pro- 
portion to  the  marriage  portion.  The  correlation  was  very  much  closer 
after  the  time  of  Justinian:  (a)  it  could  be  established  during  the  marriage; 
(h)  the  amount  of  it  had  to  be  equal  to  that  of  the  dower  ("Nov.,"  97);  (c) 
the  immovables  were  inalienable  ("Nov.,"  61);  (d)  mortgage  upon  the  hus- 
band's possessions;  (e)  anticipated  restitution  if  the  husband  became  in- 
solvent: Girard,  p.  957. 

8  No  increase  without  marriage  portion:  "Petrus,"  I,  30.  —  In  the  will 
(unpublished)  of  a  simple  workman,  Jean  do  Latour,  Aug.  28,  1348,  the  fact 
is  admitted  that  his  wife  brought  him  a  marriage  portion  of  8  "livres"  and 

779 


§  538]  SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

riage  portion  (double  marriage  portion)/  sometimes  to  one-half 
or  one-third  of  the  latter.^  Although  the  parties  may  be  free  to 
fix  the  amount  of  the  increase,^  it  is  not  usual  for  the  increase 
which  is  agreed  upon  to  be  greater  than  the  Customary  increase. 
It  ordinarily  consists  in  a  right  of  ownership  if  there  are  no  children, 
and  in  a  usufruct  if  there  are.^  The  mother  who  does  not  remarry 
acquires,  as  a  general  thing,  the  "mans  share"  of  ownership  in 
the  increase,  —  that  is  to  say,  a  man's  share  with  respect  to  th  j 
number  of  children  who  inherit.^  The  origin  of  the  increase, 
which  was  formerly  much  disputed,^  seems  to  have  been  in  the 
"  ante  nuptias  "  gift  of  the  Theodosian  law,  which  had  not  ceased 
to  be  in  use  in  the  South  of  France.^  Upon  two  points  they  are 
similar;  like  the  antenuptial  gift,  it  cannot  be  appointed  during 
the  marriage;  and,  like  that  also,  it  is  necessary  that  it  should  be 
equal  to  the  marriage  portion.  This  equality,  which  was  for- 
bidden by  the  law  of  Justinian,  was  only  accepted  by  a  few  ex- 
ceptional Customs.^    The  Southern  Custom  introduced  an  increase 

10  "sols,"  and  this  sum  was  assigned  out  of  a  certain  piece  of  land;  J.  de 
Latour  gives  his  vfiie  as  an  increase  of  her  marriage  portion,  and  by  reason 
of  her  pleasing  services  with  her  body  and  her  property,  a  simi  of  70  "sols." 
—  Lezat,  49;  "Tonneins,"  83.  —  Italy,  Lattes,  240,  247. 

1  "Bord.  N.  C,"  47,  49;  "Agen.,"  27,  etc.;  Stobbe,  IV,  185. 

2  "Toulouse,"  "Foix,"  "Montauban,"  "Albi,"  "Comminges";  Lezat, 
p.  97,  etc. 

3  Roussilhe,  "Dot,"  II,  141;  "Cahors,"  22. 

*  "Petrus,"  I,  33.  As  to  the  Justinian  law  cf.  Zacharie  de  Ldngenthal, 
p.  64  et  seq. 

*  Boucher  d'Argis,  p.  194;  Henrys,  IV,  9,  56  and  111. 

^  Boucher  d'Argis  connects  it  with  the  Byzantine  "hypobolon."  Cf. 
Zacharie  de  Lingenthal,  p.  64  et  seq.  The  crusaders  must  have  brought  this 
institution  with  them  from  Constantinople.  But  the  truth  of  the  matter 
is  that  both  the  "hypobolon"  and  the  increase  have  a  common  origin:  Bran- 
dileone,  "Don.  propter  nuptias,"  1892;  "Studii  s.  svolg.  d.  Rapporti  patri- 
moniah  fra  conjugi  in  Italia,  Arch.  Giur.,"  67,  2  (1901);  "Ult.  fase  d.  Don. 
pr.  nupt.";  Esmein,  "Le  Test,  du  Mari  et  la  Don.  ante  nuptias"  ("Mel.," 
1886);  "N.  R.  H.,"  1884,  1. 

'  The  marriage  contracts  in  the  South  as  early  as  the  eleventh  century 
contain  antenuptial  gifts  which  are  frequently  joined  to  marriage  portion 
gifts.  Examples  in  D.  Vaissette,  V,  738  (in  1095).  Bertrand,  the  son  of  Rai- 
mond  de  Saint-Gilles,  gives  his  fiancee  "in  sponsalicio"  the  towns  of  Rodez, 
Cahors,  Viviers,  Avignon  and  Digne,  each  one  "cum  comitatu  et  episcopio"; 
after  the  death  of  the  spouses  they  will  pass  to  their  children;  if  there  are  no 
children  the  wife,  should  she  survive,  shall  have  the  right  to  dispose  of  them 
at  her  will.  Generally  in  other  deeds,  if  there  are  no  children,  the  property 
reverts  to  the  husband's  relatives:  V,  795,  888,  954,  1109,  1202;  VIII,  278 
(in  1171:  inequality  between  the  marriage  portion  and  the  gift  "propter 
nuptias"),  317,  394,  498.  Pasquier,  "Doc.  rel.  a  Boussagues,"  pp.  26,  28; 
"Liber  Inst,  memor."  ("Cartul.  des  Guillems  de  MontpeUier,"  1884-6), 
pp.  92,  263,  270,  349,  etc. 

8  "Petrus,"  I,  30,  43,  51,  also  requires  that  the  gift  "Propter  nuptias" 
and  the  marriage  portion  should  be  of  equal  value;  "Bord.  N.  C,"  IV,  47,  49. 
Contra:  "MontpeUier,"  75,  95;  "Alais,"  17;  "Liber  Instr.  memor.,"  lac.  cit. 

780 


Topic  2]      DOWER  AND   OTHER   RIGHTS   BY   SURVIVORSHIP        [§541 

established  by  agreement  into  certain  localities.^  Both  the  in- 
crease and  the  antenuptial  gift  were  for  the  benefit  of  the  children, 
provided  the  mother  should  have  survived,  whereas  the  dower 
only  benefited  them  as  an  exception  and  when  the  mother  had  not 
survived.^ 

§  539.  Rings  and  Jewels  ^  were  another  right  based  on  sur- 
vivorship, granted  to  the  widow  in  countries  of  written  law,  and 
consisted  originally  in  objects  specifically  given  by  the  hus- 
band to  his  wife,^  and  later  in  a  fraction  of  his  possessions,  —  one- 
twentieth  or  one-tenth  of  the  marriage  portion,  so  as  to  form  a 
sort  of  balance  for  the  increase.^ 

§  540.  Counter- Increase.^  —  In  case  the  wife  died  before  the 
husband  the  latter  received  all  or  a  part  of  the  marriage  por- 
tion, sometimes  in  ownership,  when  there  were  no  children,  or- 
dinarily in  usufruct,  especially  where  there  were  children.'^  This 
is  what  is  called  the  "Counter-increase,"  an  equitable  set-off 
for  the  acquisition  of  the  increase  of  the  marriage  portion  by 
the  widow,  and  perhaps  a  survival  of  the  acquiring  of  the  marriage 
portion  by  the  husband  in  the  Roman  legislation. 

§  541.  Mourning  and  Residence.^  —  The  Customary  law,  which 
is  in  accord  with  the  customs  of  the  barbarian  period,  allowed 
the  widow  to  reside  in  the  house  of  the  husband,^  and  also  allowed 
her  mourning,  —  that  is  to  say,  mourning  garments.^*'    The  widow 

1  "Bord.  N.  C,"  47,  49;  Boucher  d'Argis,  p.  29;  Pons,  he.  cit. 

2  Bretonnier,  "Quest.,"  II,  1,  4,  9,  1. 

3  Boucher  d'Argis,  p.  63;  see  Guyot;  Argou,  III,  11. 

*  Cf.  the  old  custom  of  betrothal  presents.  —  See  "Morgengabe,"  ante. 
Aragon,  "bentages  forales"  (clothing,  jewelry,  the  best  bed  in  the  house, 
a  hackney,  two  beasts  of  burden  with  their  harness).  Catalonia,  "regalos 
de  boda."  —  Cf.  paraphernaUa  of  the  English  wife:  Lehr,  p.  103  (jewels  given 
to  the  wife  in  order  that  she  may  wear  them  with  a  view  of  maintaining  her 
rank  in  society;  frequently  she  does  not  acquire  their  ownership;  they  are  the 
family  jewels).  —  In  Rome,  Labeon  bequeaths  to  his  wife  Neratia  the  "  mundus 
muhebris"  and  the  "ornamenta  muliebria":  Dig.,  "de  leg.,"  32,  32,  6. 

^  Sometimes  the  rings  and  jewels  are  the  wife's  of  absolute  right  (Lyonnais), 
sometimes  they  must  be  stipulated  for  in  the  marriage  contract  (Provence, 
Grenoble,  Bordeaux,  Toulouse).     They  are  to  be  found  once  more  at  Metz. 

®  See  as  to  this  deeds  of  the  South  in  D.  Vaissette,  V,  895,  etc.;  "Toulouse," 
88,  92,  114,  115;  "Tornadotz,"  "Fors  et  Cost,  de  Bdarn,"  "r.  de  marit."; 
"Bord.,  A.  C,"  104;  Ducros,  "Refl.  s.  la  Cout.  d'Agen,"  246. 

■  The  Customs  of  the  South  vary  greatly:  "Nov.,"  53,  6;  117,  5;  "Cod. 
Just.,"  6,  18;  "Petrus,"  I,  33;  B.  d'Argis,  Koussilhe,  etc. 

8  Pothier,  "Tr.  du  Dr.  d'Habitation,"  1771;  Boucher  d'Argis,  63,  101; 
Argou,  III,  11;  Civil  Code,  1465,  1481,  1492,  1570. 

»  "Et.  de  St.  Louis,"  I,  16.  Cf.  in  the  Mahometan  law  the  period  of  legal 
repurchase  ("aidda"),  Joly,  "Th6se,"  p.  176. 

1°  Loysel,  135.  Roman  custom:  "mulier  non  debet  suis  sumptibus  lugere 
maritum."  The  English  widow  has  not  a  right  to  mourning:  Lehr,  p.  107 
{contra  in  Scotland):  Civil  Code,  1481. 

781 


§  541]  SYSTEM   OF  PROPERTY   BETWEEN   SPOUSES        [Chap.  V 

originally  could  not  be  banished  from  the  conjugal  hearth  as  long 
as  she  did  not  remarry.  But  later  this  right  became  restricted; 
the  Custom  of  Paris  only  grants  it  during  the  period  required 
to  make  an  inventory  and  decide  on  what  is  to  be  done;  the  widow 
then  took  her  maintenance  and  that  of  the  servants  out  of  the 
stores  belonging  to  the  community.^  It  was  also  customary  in 
countries  of  Customs  for  her  to  withdraw  from  the  movables  of 
the  community  a  few  minor  objects  for  her  personal  use  ("linen 
and  wearing  apparel").^  —  In  countries  of  written  law  she  had 
no  right  to  residence  unless  there  were  a  special  agreement  to  that 
effect.^  But  mourning  she  was  entitled  to,  as  well  as  maintenance 
("necessaria,  vestitus  et  victus")  during  the  year  which  was 
granted  to  the  heirs  of  the  husband  within  which  to  make  restitu- 
tion of  the  marriage  portion  (excepting  that  she  was  not  allowed  to 
demand  interest  on  the  marriage  portion) ;  if  she  had  not  brought 
with  her  any  marriage  portion,  she  received  an  allowance  during 
this  year,  which  was  called  "the  ■widow's."  ■* 

'  "Quarantine"  of  the  widow  in  England  ("Magna  Charta,"  1215,  c.  7; 
Bracton,  fo.  96).  "Free  Bench  of  the  County  of  Kent,"  ante.  "Trentaine"  of 
the  German  law,  and  often  during  this  period  the  widow  has  the  "Musstheil," 
that  is  to  say  one-half  of  the  provisions  for  eating  which  happen  to  be  in  the 
house  at  the  time  of  the  death  of  the  husband:  Schroeder,  309;  Heusler,  II, 
298,  326,  342;  Fertile,  III,  341. 

2  Beaumanoir,  13,  21,  only  allows  the  widow  to  carry  away  her  every-day 
dress  and  a  bed  such  as  she  was  accustomed  to  use  for  her  rest;  Boucher  d'Argis, 
81.  —  "Roisin,"  p.  154;  Lagreze,  "Dr.  dans  Pyr.,"  p.  127;  "Tours,"  293. 

*  "Insistance,"  "Toulouse,"  119  etseq.;  "Tenute"  in  "Roussillon";  B. 
d'Argis,  93;  "Des  Dev.  du  Dez.,"  p.  822;  "F.  de  Beam,"  2,  "De  Marit."  3. 

*  "Toulouse,"  119  et  seq.;  "Decis.  Cap.  Tol.,"  IX,  337;  R.  de  Lacombe, 
see  "Augment,"  no.  24  (dwelling-house  until  the  pay  merit  of  the  increase); 
Roussilhe,  no.  625. 


782 


Topic  3] 


SYSTEMS   WITHOUT   COMMUNITY 


[§543 


Topic  3.    Systems  without  Community 


§  542.  In  General. 

§  543.  English     System.  —  (A)     The 

Common  Law. 
§  544.  The    Same.  —  (B)    Courts    of 

Equity. 
§  545.  The   Same.  —  (C)  Act  of  the 

10th  of  August,  1882. 
§  546.  Norman    System.  —  (A)  Inca- 

pacityof  theMarried  Woman. 


§  547.  The  Same.  —  (B)  The  Admin- 
istration of  the  Immovables. 

§  548.  The  Same.  —  (C)  Inalienabil- 
ity of  the  Marriage  Portion. 

§  549.  German  System  of  Unity  of 
Possessions. 

§  550.  The  Roman  System  of  Mar- 
riage Portion. 

§  551.  The  Partiiership  of  Acquests. 


§  542.  In  General.  —  The  systems  of  property  between  spouses 
during  the  feudal  and  monarchic  periods  are  very  diverse,  but 
can  be  reduced  to  two  principal  types.  1st.  Systems  without 
community,  which  are  in  use  in  England  and  Normandy  and  in 
rather  a  large  portion  of  Germany  and  Switzerland  and  a  few 
localities  in  the  "east  of  France.  We  may  group  with  this  the 
Roman  system  of  marriage  portions  which  was  in  effect  in  coun- 
tries of  written  law,  Italy  and  Spain.  —  2d.  Systems  with  commu- 
nity. Such  are  the  partnership  in  acquests  found  in  Spain  and  the 
southwest  of  France,  the  community  of  movables  and  acquests 
found  in  Customary  France  and  Germany,  and  the  absolute 
community  found  in  a  part  of  Germany. 

§  543.  English  System.^  —  (A)  The  Common  Law  under  its 
classical  form,  such  as  it  appears  in  Blackstone,  with  that  extreme 
logic  which  does  not  hesitate  at  the  absurd,  seems  to  organize  the 
entire  system  of  property  between  spouses  as  a  function  of  the 
incapacity  of  the  married  woman.  During  the  marriage  the  wife 
is  nothing  and  has  nothing.  Her  personality  is  absorbed  in  that 
of  the  husband:  "Vir  et  uxor  sunt  quasi  unica  persona,"  Brac- 
ton  was  already  saying,  referring  to  the  text  of  scripture,  "  erunt 
duo  in  came  una."  ^  Marriage  is  for  the  woman  a  sort  of  civil 
death;  she  cannot  contract  with  her  husband  because  they  only 
form  one  person ;  gifts  between  spouses  are  radically  impossible ;  ^ 
agreements  entered  into  between  them  before  the  marriage  are 

1  Blackstone,  I,  7,  and  II,  29;  Pollock  and  Maitland,  II,  397;  Glasson,  "Inst. 
d'Anglet.,"  II,  284;  IV,  308:  VI,  187;  Lehr,  p.  70;  Bc.rtheau,  "The&e,"  1902. 

2  Bracton,  fo.  429  b.  Cf.  fo.  414;  Littleton,  no.  168 :  Gtanville,  VI,  3 ;  "  Quoniam 
Attach.,"  22;  "L.  Burg.,"  131. 

*  Cf.  "Reg.  Maj.,"  II,  15;  Bracton,  fo.  29.  But  the  husband  may  make  a 
will  leaving  his  property  to  his  wife,  as  the  gift  is  made  to  take  effect  at  a 
time  when  the  marriage  will  no  longer  be  in  existence. 

783 


§  543]  SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES        [Chap.  V 

annulled  by  the  fact  of  its  celebration;  the  wife  cannot,  moreover, 
have  any  dealings  with  third  parties,  nor  act  at  law,  nor  make 
her  will.^  There  is  no  need  for  the  husband  to  give  her  au- 
thority, because  she  does  not  exist,  considered  as  a  person;  ^  it 
is  he  who  acts,  who  contracts,  and  who  pleads;  he  would  un- 
doubtedly have  been  charged  with  making  his  wife's  will  if 
there  had  not  been  seen  in  this  a  religious  act  based  upon 
conscience  alone. 

There  is  some  exaggeration  in  these  formulfe,  even  if  we  only 
consider  the  final  state  of  the  Common  Law,  and  especially  if  one 
goes  back  to  the  period  of  its  formation.  In  the  thirteenth  century 
the  husband  and  the  wife  act  jointly  in  court  and  extrajudicially, 
where  the  lands  of  the  wife  are  concerned.  If  their  alienation  is 
proceeded  with,  the  wife  is  interrogated  by  herself  in  order  to  find 
out  if  her  consent  has  been  free.  Thus  one  sees  that  her  personal- 
ity is  not  entirely  obliterated.  She  owes  obedience  to  her  hus- 
band, "non  potest  contradicere  viro,  quia  vir  caput  mulieris"; 
the  husband  has  a  right  over  her  which  can  be  compared  to  the 
custody  of  a  minor.  By  virtue  of  this  right  he  acquires  the 
movables  (personal  property)  of  the  wife,  subject  to  paying  her 
debts,  and  has  the  administration  and  the  enjoyment  of  her  lands 
(real  property).  It  is  in  this  sense  that  the  passage  from  Bracton 
must  be. understood :  "Omnia  quse  sunt  uxoris  sunt  ipsius  mariti."  ^ 
From  this  unity  of  patrimony,  and  from  the  respective  rights  of 
the  spouses  at  the  death  of  one  of  them,  there  might  have  arisen 
the  system  of  the  conjugal  community.^    But  the  germs  of  this 

^  Glanville,  VII,  5,  3:  the  wife  cannot  make  a  will  without  the  authority 
of  her  husband,  but  it  is  his  duty  to  allow  her  to  dispose  of  one-third  of  the 
movables,  and  the  majority  of  husbands  do  tlus.  This  is  all  the  more  readily 
understood  as  in  case  the  husband  dies  first,  the  mass  of  the  movables  is 
divided  into  three  portions:  one  for  the  deceased,  one  for  his  wife  and  one  for 
his  heirs.  Private  documents  support  this  assertion.  Cf.  also  Bracton, 
fo.  QOb.  If  the  wife  dies  intestate  one  portion  of  the  movables  is  used  in 
pious  works  for  the  salvation  of  her  soul  through  the  care  of  the  Church. 
Thus  it  is  the  Church  which  claims  the  wife's  portion  and  not  the  he,irs,  as 
would  have  been  the  case  under  the  community  system. 

2  The  wife  may  contract  in  the  capacity  of  an  agent  of  her  husband,  in 
order  to  obtain  household  necessaries:  Pollock  and  Maitland,  II,  432. 

3  Bracton,  fo.  32. 

*  Pollock  and  Maitland,  II,  432,  cite  an  old  deed  which  concludes  as  fol- 
lows: "Sic  utriusque  conjugis  bona  confunduntur,  ut  quivis  eorum  totius 
patrimonii  in  soHdum  dominus  sit."  The  two  spouses  are  tenants  by  en- 
tireties. Cf.  Blackstone,  II,  12.  One  conveys  to  the  husband  and  the  wife 
and  their  heirs,  the  price  of  the  wife's  lands  is  paid  to  the  husband  and  wife, 
following  the  fine  they  both  appear  in  court  on  behalf  of  the  wife's  lands: 
Littleton,  667  et  seq.  Moreover,  the  community  is  not  always  easy  to  dis- 
tinguish. It  is  generally  admitted  that  it  existed  very  long  ago  in  Scotland, 
and  yet  Fraser  has  maintained,  "Husband  and  Wife,"  1876,  p.  648,  that  it 

784 


Topic  3]  SYSTEMS  WITHOUT  COMMUNPTY  [§  543 

institution  came  to  nothing  in  England  as  well  as  in  Normandy. 
The  law  set  its  face  towards  the  separate  property  system.  A 
special  fact  accentuated  the  tendencies  of  the  old  legislation  in  this 
direction.  What  I  mean  is  the  double  jurisdiction  of  the  Courts 
of  the  Church  and  the  secular  tribunals.  The  former,  not  finding 
the  community  either  in  the  Roman  or  the  Canon  law,  empha- 
sized the  fact  that  the  wife  had  no  movable  property  during  the 
marriage;  the  secular  courts  maintained  a  decided  separation  be- 
tween the  immovable  inheritance  of  the  spouses,  so  as  to  preserve 
it  for  their  family. 

As  a  last  item,  the  corporeal  movables  of  the  wife  belong  to  the 
husband ;  he  has  the  right  to  take  possession  of  them,  and,  provid- 
ing that  he  has  done  so,  to  dispose  of  them  as  of  his  own  posses- 
sions "inter  vivos"  or  by  will;  they  are  included  within  the  inte- 
state succession.^  The  products  of  the  wife's  labor  are  not 
excepted  from  this  rule.  The  taking  of  possession  has  a  partic- 
ular importance  with  regard  to  chattels  real  or  choses  in  action, 
whose  disposal,  consequently,  is  found  to  be  a  little  different  from 
that  of  corporeal  movables.^  As  to  the  wife's  immovables,^  the 
husband  acquires  an  estate  over  them  as  long  as  the  marriage 
lasts,  or  even  for  his  whole  life,  in  case  a  child  is  born  (curtesy  of 
England) .  He  is  free  to  dispose  of  tliis  estate,  but  he  cannot  con- 
fer on  third  parties  rights  more  extensive  than  those  which  he 
has  himself.  "A  wife's  property  cannot  be  lost,"  as  is  demanded 
by  the  interests  of  the  family;  the  only  means  of  alienating  it  is 
the  fine  with  the  participation  and  consent  of  both  the  spouses.^ 

had  been  but  recently  imported  from  France.  Cf.  post,  Germany:  D'Olive- 
crona,  p.  68. 

1  Cf.,  however,  above,  the  right  of  the  wife  to  one-third  of  the  movables 
or  to  one-half  if  there  are  no  children.  But  this  old  rule  disappeared  from  the 
common  law:  Pollock  and  Maitland,  II,  346.  Cf.  "Anc.  Us.  d'Anjou,"  ed. 
Marnier,  §  75. 

2  (A)  Chattels  Real;  the  husband  can  dispose  of  them  but  only  "inter 
vivos";  if  he  dies  without  having  done  so,  they  belong  to  the  wife;  if  the 
husband  survives  they  belong  to  him.  (B)  Choses  in  action;  the  husband 
collects  the  claims  and  can  pursue  the  debtors;  by  this  means  he  acquires 
tliis  species  of  property.  If  he  does  not  do  this,  as  the  wife  has  never  been 
disseised,  she  keeps  them.  The  husband  who  survives  cannot  pursue  the 
wife's  debtors  in  his  quality  of  husband,  but  he  can  do  so  as  administrator 
of  the  estate  of  his  wife. 

3  As  to  the  "Maritagium"  cf.  Glanville,  VII,  18;  "Reg.  Maj.,"  II,  18; 
II,  28  et  seq.;  II,  48  et  seq.;  II,  57;  III,  17;  "Quoniam  Attach.,"  20,  91  et  seq.; 
"Stat.  Alex.,"  II,  22;  "Fleta,"  I,  13;  III,  11;  Britton,  67;  Bracton,  fo.  22,  28; 
Littleton,  265  et  seq.;  Glasson,  "Inst.  Anglet.,"  VI,  185:  "The  daughters 
scarcely  ever  receive  any  marriage  portion  from  their  parents,  and,  as  their 
rights  of  inheritance  are  very  limited  it  follows  that  all  the  wealth  is  kept  for 
the  men." 

*  Glanville,  VIII.  —  Gide,  p.  253. 

785 


§  543]  SYSTEM   OF   PROPERTY   BETWEEN    SPOUSES        [Chap.  V 

If  one  wishes  to  have  a  complete  idea  of  the  English  system,  one 
must  remember  that  the  wife  has  a  dower  of  one-third,  which 
makes  it  impossible  for  the  husband  to  dispose  of  his  lands  during 
the  marriage  excepting  by  way  of  fine  and  with  the  consent  of  his 
wife.  She  still  has  a  right  to  her  "pin  money,"  an  annual  allow- 
ance which  it  is  customary  for  her  husband  to  promise  her,  and 
to  "paraphernalia,"  jewels  and  articles  of  the  toilet  (without 
counting  the  wardrobe  which  is  necessary  for  her).^ 

§  544.  The  Same.  —  (B)  Courts  of  Equity.  The  decisions  of 
the  courts  of  equity  authorized  the  wife  to  keep  as  her  personal 
belongings  certain  properties  (separate  estate)  by  confiding  them 
to  trustees  or  fiduciaries.^  With  respect  to  these  possessions  she 
has  the  same  capacity  as  the  unmarried  woman  ("feme  sole"),  the 
assured  power  ("ligia  potestas")  of  the  widow.  At  law  the  wife  is 
" covert  de  baron"  ^  and  has  no  possessions  of  her  own;  in  equity 
she  becomes  independent  of  her  husband  through  the  interven- 
tion of  trustees  and  to  the  extent  of  her  separate  estate.^  This  is 
the  wife  with  a  marriage  portion  and  the  wife  with  paraphernalia, 
of  the  Roman  law,  but  quite  differentiated  as  a  result  of  the  pres- 
ence of  the  fiduciaries  who  are  strangers  to  the  husband.  This  is 
a  solution  of  rather  doubtful  propriety,  this  three-cornered  estab- 
lishment, but  no  other  expedient  was  found  to  take  the  woman 
whose  personal  fortune  was  considerable  out  of  the  power  of  her 
husband.  The  motives  which  justified  this  even  caused  in  time 
the  recognition  of  the  fact  that  the  wife  had  a  right  to  demand  a 
separate  estate  independent  of  any  agreement  (equity  to  a  settle- 
ment).^ 

§  545.  The  Same.  —  (C)  Act  of  the  10th  of  August,  1882.  This 
body  of  rules  was  completed  and  generalized  by  a  Law  of  1882  en- 
acting the  civil  emancipation  of  the  married  woman.  This  statute 
was  exactly  opposite  to  the  common  law.    All  the  possessions 

1  The  husband  has  a  right  to  dispose  "inter  vivos"  (but  not  by  will)  of 
the  rings  and  jewels  of  his  T^-ife  and  these  form  a  pledge  for  his  creditors. 
Cf.  "Quoniam  Attach.,"  21,  38;  "Fleta,"  V,  17. 

2  Pollock  and  Maitland,  II,  430  (origin  of  this  sort  of  trust).  CJ.  "Sonder- 
gut"  of  the  German  wife. 

^  Du  Cange,  see  "Cooperire";  Pollock  and  Maitland,  II,  404. 

*  Cf.  ante,  "Uses."  The  Courts  of  Chancery  recognized  married  women  a3 
having  the  status  of  a  "cestui  nue  use." 

*  A  settlement  is  usually  a  aeed  by  means  of  which  the  disposal  of  a  piece 
of  property  is  determined.  The  Court  of  Chancery  at  first  only  intervened 
on  behalf  of  the  wife  when  the  husband  applied  to  it,  for  example  in  order  to 
obtain  possession  of  a  piece  of  the  wife's  property;  it  applied  the  rule:  "He 
who  seeks  Equity  must  do  Equity";  the  Court  would  only  give  its  help  to  the 
husband  if  he  made  a  settlement  on  his  wife,  as  Equity  required. 

786 


Topic  3]  SYSTEMS   \\-ITIIOUT   COAniUNITY  [§  546 

of  the  wife  are  looked  upon  as  paraphernalia,  except  there  be  an 
agreement  to  the  contrary.  The  wife  is  fully  capable  of  acting 
alone  at  law  or  ext^ajudiciall3^  She  has  only  to  contribute  to  the 
expenses  of  the  keeping  up  of  the  marriage  if  the  husband  or  the 
children  are  indigent.  The  life  in  common  of  the  spouses  is  not 
accompanied  by  a  single  community  of  interests  outside  of  that 
which  they  may  wash  to  establish  and  which  they  can  put  to  an 
end  when  they  please.  Separate  property  and  equality  of  the 
spouses,  such  is  the  liberal  formula  at  which  the  English  law 
has  arrived,  after  having  begun  with  the  strictest  subjection 
of  the  wife  to  the  husband.^ 

§  546.  Norman  System.  —  (A)  Incapacity  of  the  Married  Woman. 
The  Norman  law  took  the  same  point  of  departure  as  the  English 
law.  "As  soon  as  the  wife  is  under  the  authority  of  her  husband," 
says  the  "Grand  Coutumier  de  Normandie,"  ch.  100,  "he  can  do 
as  he  wishes  wath  her  ^  and  with  her  property  and  her  inheritance; 
she  cannot  be  heard  as  long  as  she  lives  under  him."  ^  The  abso- 
lute incapacity  of  the  married  woman  such  as  results  from  this 
formula  ^  suffers  exceptions  at  a  very  early  time  and  decreases  es- 
pecially during  the  sixteenth  century;  there  are  cases  in  which  the 
woman  can  act  at  law  even  in  spite  of  her  husband,  for  example, 
when  she  has  received  an  injury.^  When  the  alienation  of  her 
marriage  portion  became  lawful  she  had  to  be  a  party,  and  if 
she  had  her  husband's  authority  she  was  free  to  obligate  herself 
in  the  exceptional  cases  in  which,  even  in  the  old  times,  she  was  al- 
lowed to  alienate  her  marriage  portion  (to  get  the  husband  out  of 
prison,  etc.).^  If  the  early  incapacity  was  not  kept  up,  it  at  least 
paved  the  way  for  the  Velleianum  Senate  Decree,  which  forbade 
married  women,  and  even  unmarried  women  and  widows,  to  bind 
themselves  for  another.  It  was  introduced  into  Normandy,  as 
in  the  rest  of  Customary  France,  about  the  fourteenth  century,^ 

1  Barclay,  "Bull.  Soc.  l^g.  comp.,"  XII,  443;  Esmein  on  Gide,  p.  259; 
Bertheau,  p.  312. 

2  "Summa,"  85,  8;  100,  3,  77.  The  following  saying  of  Dumoulin  is  often 
cited:  "In  Neustria  mulieres  sunt  ut  ancillse,  multum  subdit£B  viris  suis 
qui  sunt  avari." 

*  Incapacity  of  making  a  wnll  lessened  in  Art.  417  of  the  "N.  C." 

«  Cf.  "Hainaut,"  1534:  Glasson,  VII,  389;  Dum4es,  "Dr.  Fr.  Flandre," 
1753. 

s  "Summa,"76;  96;  100,3;  "N.  C,"  543  et  seq.;  "Anc.  Us.  d'Anjou,"  ed. 
Marnier,  §  95. 

°  Separate  maintenance  of  Roman  origin  (which  has  not  been  adopted  by 
the  English  law). 

'  Before  this  date  no  trace  of  it  is  to  be  found,  a  thing  which  is  readily 
conceived  of,  for  the  Theodosian  law  either  disappeared  or  else  became  blended 

787 


§  546]  SYSTEM    OF   PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

but  it  was  applied  there  with  a  special  strictness;  intercessions  for 
the  benefit  of  the  husband  or  a  third  party  were  looked  upon  as 
void  at  law  unless  there  were  letters  of  rescission ;  women  were  for- 
bidden to  renounce  the  benefit  of  the  senate  decree,  which  was 
contrary  to  the  general  usage  in  countries  of  Customary  law,  and 
the  Parliament  of  Rouen  refused  to  register  the  Edict  of  August, 
1606,  which  abolished  the  Roman  institution.^ 

The  property  brought  by  the  wife,  or  "marriage,"  was  very 
small  originally,  for  "  the  father  owes  his  daughter  a  husband  and 
nothing  more."  ^  Daughters  were  excluded  by  the  law,  even 
in  the  absence  of  agreement,  from  the  inheritance  of  their  as- 
cendants, if  they  had  brothers;  ^  at  the  same  time,  they  might  be 
recalled  to  the  succession  by  a  "reservation  to  partition,"  or  even 
receive  a  marriage  portion;  and  in  this  case  all  of  them  together 
ought  only  to  have  a  third  part  of  the  inheritance  at  the  most, 
and  each  one  only  the  share  of  one  of  her  brothers  (or  the  one  who 
took  the  least).  If  there  were  no  reservation,  the  sons  took  the 
entire  succession;  but  the  daughters,  who  could  claim  nothing 
from  their  father,*  had  the  right  to  demand  from  their  brothers  ° 
a  fitting  marriage,^  that  is  to  say,  a  sufficient  marriage  portion  to 
enable  them  to  contract  a  marriage  which  corresponded  to  their 
station.  The  brothers  were  freed  as  far  as  their  sisters  were  con- 
cerned, even  if  they  did  not  give  them  any  marriage  portion,  if 
they  succeeded   in  procuring  for  them  an  honorable  husband; 

with  the  Germanic  law,  and  the  Justinian  law  only  penetrated  the  Norman 
practice  very  slowly.     The  "Coutume"  of  1583  makes  no  mention  of  it. 

1  Froland,  "M6m.  concern.  I'observ.  du  Ste.  Vell^ien  en  Norm.,"  1722; 
Colin,  p.  437. 

2  Houard,  "Diet,  de  Dr.  Norm.,"  see  "Filles,"  II,  p.  503.  This  dictionary 
is  consistent  with  "T.  A.  C,"  10,  1;  80,  2;  "Summa,"  26,  100;  "N.  C,"  248 
etseg.,  250:  if  nothing  were  promised  him  at  the  time  of  his  marriage,  he  should 
have  nothing.  Le  Poillevin,  p.  267  (details  as  to  the  rights  of  succession  of 
daughters). 

3  "T.  A.  C,"  8-13,  80.     C/.  "Anjou,"  "Maine." 

<  "T.A.C.,"  80,  2  (one-third  at  the  most);  "Summa,"  100,  13.  Cf.  the 
maxim  of  the  Customs:  "No  marriage  portion  for  him  who  does  not  wish  one." 
The  discretionary  power  of  the  parents  was  tempered  by  the  affection  which 
they  felt  for  their  children,  and  it  was  more  to  be  feared  that  they  would  make 
excessive  gifts.  As  to  contractual  appointments  (the  benefits  of  which  were 
extended  to  include  the  brothers  of  the  appointee,  because  the  Custom  was 
one  which  equalized,  and  which  made  it  impossible  for  the  father  appointing  one 
of  his  children  to  ahenate  or  to  mortgage  all  the  immovables),  cj.  §  519. 

5  "  T.  A.  C,"  80,  4 :  the  brother  is  allowed  a  delay  of  a  j^ear  and  a  day  within 
which  to  provide  his  sister  with  a  husband,  when  she  is  twenty  years  old; 
"Summa,'^  100.  15. 

«  "T.A.  C,"  80,  4:  "De  matrimonio  competent!  providere,"  "to  provide 
a  suitable  marriage."  Cf.  3, 1  and  2;  Ragueau,  see  "advenant,"  "apparag^e"; 
"A.C.,  Anjou,"  ed.,  B-B.,  I,  70. 

788 


Topic  3]  SYSTEMS   WITHOUT   COMMUNITY  [§  546 

when  the  sisters  refused  to  accept  the  husbands  procured  for 
them,  they  were  (formerly)  deprived  of  the  marriage  portion;  con- 
versely, if  the  brothers  refused  to  establish  their  sisters,  the  latter 
were  allowed  to  apply  to  the  law  in  order  to  obtain  a  third  of  the 
paternal  inheritance;  and  in  cases  of  this  sort  they  married  whom- 
soever they  wished.  In  the  last  stage  of  the  law  daughters  asked 
for  an  arbitration  of  a  fitting  marriage  for  them  before  an  assem- 
bly of  the  family.  This  marriage  portion,  which  was  also  called  a 
"legal  share,"  or  the  equivalent  of  their  hereditary  share,  consti- 
tuted a  preferred  claim.  It  was  paid  regularly  in  money,  but 
consisted  just  as  often  in  a  conveyance  of  possessions  of  an  equal 
amount,  as  the  sons  preferred  to  free  themselves  in  this  way  so  that 
the  daughter,  compelled  to  have  recourse  to  means  of  compul- 
sion, should  not  be  able  to  claim  from  third  parties  ^  the  im- 
movables coming  from  the  family.^  The  settlement  of  the  fitting 
marriage  was  a  complicated  operation;  the  right  of  the  daughter 
or  daughters  was  to  one-third  of  the  inheritance,  but  the  share 
of  any  one  of  them  could  not  exceed  the  share  of  the  son  who  took 
the  least;  besides,  in  order  to  allot  these  shares,  they  had  to  take 
into  account  the  nature  of  the  possessions  (fiefs,  burgage,  etc.). 

The  husband  acquired  the  movables  of  the  wife  subject  to 
paying  her  debts.^  But,  although  this  rule  of  the  old  law 
never  ceased  to  apply  on  principle,  it  underwent  in  fact  consider- 
able restriction  as  a  consequence  of  the  custom  of  inserting  in 
the  marriage  contracts  the  "taking-back  clause"  (or  conversion 
into  money  of  a  part  of  the  movables),  and  because  of  the  obliga- 
tion which  the  Custom  imposed  on  the  husband  to  invest  a  portion 
of  these  movables,  as  though  by  virtue  of  an  implied  contract.  By 
way  of  set-off,  moreover,  the  wife  who  survived  received,  not 
onlj^  her  dower,  but  one-third  or  one-half  of  the  ownership  of  the 
movables  left  by  the  husband  at  his  death,  ^  —  one-third  if  he  had 
children  born  during  the  marriage,  one-half  if  there  were  no  chil- 
dren alive;  when  she  renounced  this  in  order  to  avoid  paying  a 

*  Even  before  the  marriage  a  marriage  portion  is  already  owing  by  the 
brother  which  cannot  be  compromised,  either  by  him  or  by  the  sister  to  whom 
it  is  owing,  for  she  can  only  draw  on  the  income;  unmarried  daughters  have 
nothing  of  their  own:  "N.  C,"  261-26S.  The  "T.  A.  C,"  80,  5  and  G,  gives 
them  the  ownership  of  their  land  and  the  right  to  dispose  of  it,  "as  though 
they  were  males."     Cf.  "Summa,"  24. 

^  That  is  to  say,  only  when  they  are  included  within  successions  in  the 
direct  line:  "N.C.,"  262. 

3  Cf.  "N.C.,"  390;  Hounrd,  "Dictionn.,"  see  "Mari." 

■•  "T.  A.  C,  Norm.,"  5,  4  and  5:  "De  communi  catallo,"  etc.  But  not  the 
heirs. 

789 


§  54G]  SYSTEM   OF   PROPERTY   BETWEEN    SPOUSES         [Chap.  V 

corresponding  portion  of  the  debts,  she  was  still  given  her  para- 
phernalia, that  is  to  say,  movables  which  were  for  her  personal 
use  (bed,  clothes,  linen). ^ 

§  547.  The  Same.  —  (B)  The  Administration  of  the  Immovables 
belonging  to  the  wife  was  confided  to  the  husband;  he  administered 
them  as  though  they  had  been  his  own,  drew  the  revenues,  and 
appeared  in  court  with  respect  to  them.^  Acquests  realized  dur- 
ing the  marriage  belonged  to  him  exclusively.^  Thus  there  was 
no  community  of  property  between  spouses  in  Normandy,  not 
even  of  acquests.  Not  only  did  the  Custom  not  admit  of  any 
community,  but  it  forbade  community  to  be  stipulated  for.^  As 
a  matter  of  fact,  the  position  of  the  wife  who  survived  her  hus- 
band did  not  differ  very  much  from  that  of  the  wife  who  had  a 
community  of  property;  she  had  the  right  to  one-third  of  the 
usufruct  of  the  ordinary  property  which  was  acquired  jointly  ^ 
and  to  half  of  the  ownership  of  property  acquired  jointly  in  bur- 
gage. As  to  ordinary  jointly  acquired  property,  she  had  rather  a 
right  to  succession,^  that  is  to  say,  a  right  which  was  dependent 
upon  her  survival  and  the  death  of  her  husband.  Over  property 
acquired  jointly  in  burgage,  that  is  to  say,  over  immovables  which 
were  in  towns,  she  was  recognized  as  having  rather  a  community 
right,  for  it  was  exercised  upon  the  separation  of  estates  (post, 
§  565)  without  waiting  for  the  death  of  the  husband,  and  the 
heirs  of  the  wife  had  the  same  right  to  it  as  she  had,^  The  former 
of  these  rights  seems  to  be  very  recent;  it  only  appears  in  the 
Custom  of  1583;  ^  the  other  goes  back  to  the  "Grand  Coutumier," 

1  "Norm.,"  392-95.    Or  at  least  one  portion. 

2  "Summa,"  14,  5:  "nihil  divisum  habent."     Cf.  German  law. 

3  "Summa,"  100,  9.     Cf.  "Ord."  of  July,  1219,  I,  38. 

4  "N.  C,"  330,  389.  The  old  texts  are  silent.  This  rule,  which  the  Par- 
liament of  Rouen  looked  upon  as  a  real  Statute,  is  all  the  more  remarkable 
because  Normandy,  just  as  the  other  provinces,  has  had  its  partnerships  of 
participants  or  implied  communities:  Colin,  p.  440;  Pothier,  "Comm.,"  no. 
11.  Ficker,  1237,  finds  a  community  of  thirds  even  in  the  old  Norman  law. 
Cf.  Sicily. 

^  A  Custom  peculiar  to  Gisors  and  Caux. 

6  "Summa,"  100;  "N.  C.,"  329,  392-95;  "Placites,"  80,  130.  The  wife 
who  is  the  husband's  heir,  loses  the  right  of  ousting  third  parties  who  have 
purchased  immovables  included  within  her  marriage  portion,  a  thing  which 
would  not  be  permitted,  were  she  a  member  of  a  community.  Cf.  Tessier, 
"Soc.  d' Acquets,"  no.  122.  Moreover  the  Norman  statute  had  not  been 
repealed  by  the  Law  of  the  17th  Niv.,  year  II. 

'  Holdings  in  burgage  (immovables  situated  in  towns  or  boroughs)  may  be 
alienated  without  being  subject  to  the  control  of  the  lord:  "Summa,"  29; 
Custom  of  1583,  270;  Genesthal,  "Thdse,"  1900,  pp.  76,  126;  Lagouelle,  p.  249; 
Viollet,  p.  136. 

8  "Summa,"  100,  9;  101,  5.     Afterwards  it  seemed  unjust  for  the  husband 

790 


Topic  3]  SYSTEMS  WITHOUT   COMMUNITY  [§  548 

100,  9,  —  that  is  to  say,  to  about  the  same  period  in  which  the 
community  system  had  come  to  be  introduced  into  the  towns  of 
the  North  of  France.^ 

§  5-18.  The  Same.  —  (C)  Inalienability  of  the  Marriage  Portion.^ 
The  Norman  law,  drawing  its  inspiration  from  the  desire  to  pre- 
serve the  wife's  immovable  possessions  in  the  family,  at  a  very 
early  time  provided  for  guaranties  against  the  abuses  of  power  by 
the  husband;  and,  if  these  guaranties  were  more  energetic  in  Nor- 
mandy than  elsewhere,  it  is  because  in  no  other  locality  did  the 
family  run  a  risk  of  being  stripped  because  of  the  absolute  inca- 
pacity of  the  married  woman.  The  inalienability  of  the  marriage 
portion  consisting  of  immovables  ^  was  already  found  in  the 
"Tres  Ancien  Coutumier,"  80,  5;  "Durante  matrimonio  non  valet 
aliquis  contractus  factus  de  terra  mulieris."  Even  as  late  as  our 
day,  people  would  say :  "  The  possessions  of  the  wife  should  never 
be  lost."  But  the  bearing  of  this  maxim  has  not  always  been  the 
same.  In  the  old  times  the  wife  was  authorized  to  reclaim  her  per- 
sonal belongings  from  third  parties,  whether  they  had  been  alien- 
ated by  her  husband/  by  herself,  or  by  both  of  them  acting 
together;  she  had  to  act  within  a  year  and  a  day  after  the  death 
of  her  husband  by  using  an  action  which  will  always  keep  the 

alone  to  profit  by  the  advantages  arising  partly,  and  sometimes  entirely, 
out  of  the  wife's  property.  Cf.  the  community  system.  Neither  the  law  of 
Upland,  1275,  nor  the  law  of  the  Ripuarians  can  serve  to  account  for  an 
institution  of  the  sixteenth  century. 

1  Gragas,  II;  differences  between  this  and  the  Norman  law:  Colin,  p.  464. 

2  The  Norman  system  of  marriage  portions  was  not  borrowed  from  the 
Roman  law.  —  (A)  It  can  neither  be  derived  from  the  Theodosian  law  (why 
should  the  Roman  marriage  portion  alone  have  survived  out  of  so  many 
other  institutions,  and  in  Normandy  alone?),  nor  from  the  Justinian  law 
(how  could  its  revival  have  reacted  so  promptly,  and  only  upon  this  special 
point?)  —  (B)  Difference  between  this  and  the  Roman  marriage  portion 
system:  (a)  The  share  contributed  by  the  wife  is  called  marriage  and  not 
marriage  -portion,  excepting  after  the  sixteenth  century.  —  (6)  At  Rome  the 
father  is  held  bound  to  give  his  daughter  a  marriage  portion,  and  not  in  Nor- 
mandy. —  (c)  In  Normandy  all  the  property  is  included  within  the  marriage 
portion,  the  husband  acquires  the  wife's  movables  charged  with  the  payment 
of  her  debts.  —  (rf)  And  finally  the  inalienability  of  the  marriage  portion 
is  not  arranged  in  Normandy  in  the  same  manner  as  it  is  in  Rome.  CJ. 
Viollet,  p.  797;  Glasson,  VII,  383. 

3  "T.A.C.,"4;  80,5;  "Summa,"  100;  "N.  C,"  537-531;  "Placites,"  128: 
Regulating  Order,  1511;  Terrien,  "Comm.,"  ed.  1575,  p.  267;  Colin,  p.  433. 
Cf.  "T.  A.  C,"  80,  7;  79,  12.  Cf.  Viollet,  p.  797.  Alienation  in  court  is  possi- 
ble, but  only  as  a  great  exception;  cf.  the  fine  in  England.  Did  the  property 
which  had  come  to  the  wife  during  the  marriage  through  collateral  succession, 
whether  gifts  or  legacies,  have  to  be  included  within  the  marriage  portion? 
No,  according  to  the  general  opinion:  "N.  C,"  390,  542.  Cf.  Glasson,  VII, 
387 

^  Guarantee  due  the  husband  by  the  heirs:  "T.  A.  C,"  4, 3;  80,  5;  "Summa," 
14,  5  and  5  bis;  Tardif,  p.  72. 

791 


§  54:8]  SYSTEM    OF   PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

archaic  name  of  writ  of  encmubered  marriage.^    The  inaUenability 
was  absolute. 

Such  a  hampering  of  transactions  resulted  therefrom  that  prac- 
tice invented  a  system  less  strict  in  one  sense  and  more  sure  in 
another.  The  WTit  of  encumbered  marriage  was  looked  upon  as 
being  the  equivalent  of  recovering  the  possession;  there  was  seen 
in  it  a  sort  of  possessory  action;  this  was  not  very  accurate,^  but 
it  allowed  the  woman  who  did  not  bring  the  action  within  a 
year  and  a  day  to  petition  after  this  period  by  means  of  an  action 
of  ownership  ("action  of  apparent  law")  within  forty  years  after 
the  dissolution  of  the  marriage.  By  way  of  set-off,  the  alienation 
of  the  marriage  portion  was  legalized  when  executed  by  both 
spouses  acting  together.^  This  reform,  which  was  finally  sanc- 
tioned by  an  Order  of  1529,  was  passed  in  the  Convention  of  1583.^ 
At  the  same  time,  while  authorizing  alienation,  the  Courts  pro- 
tected the  interests  of  the  wife:  1st,  by  means  of  the  reinvest- 
ment; 2d,  by  an  implied  mortgage  over  the  possessions  of  the 
husband;  ^  3d,  by  a  subsidiary  recourse  against  third  parties 
who  were  grantees,  enabling  her  to  obtain  the  value  of  the 
property  alienated,  or,  in  default  of  this,  the  property  itself. 
One  can  sum  up  this  system  by  saying  that  the  marriage 
portion  had  ceased  to  be  inalienable,  but  that  the  wife  was 
assured  of  recovering  its  value.  If  separation  of  estates  (post, 
§  565)  took  place,  the  wife  could   only  dispose  of  her  immov- 

1  The  wife  who  failed  on  the  writ  of  encumbered  marriage,  could  not 
afterwards  sue  by  means  of  the  action  for  real  property:  an  obvious  proof 
that  tliis  writ  was  not  a  mere  possessory  action. 

2  On  these  writs  see  Brunner.  Cf.  '"Schwurger.,"  "Impedire,"  to  encumber, 
that  is  to  aUenate  or  to  burden  with  real  rights;  "Summa,"  100,  2;  see  Du 
Cange.  This  writ  was  no  longer  made  use  of  excepting  when  the  husband 
alienated  the  marriage  portion  by  himself. 

3  "Gr.  Gout.  Norm.,"  100.  Cf.  "Summa."  The  right  which  the  "T.  A.  G.," 
80,  5,  recognized  the  unmarried  woman  as  having,  that  is,  the  right  of  disposing 
of  her  lands  as  though  she  were  a  man,  was  perhaps  the  foundation  upon  which 
the  new  doctrine  was  built  up.  In  order  to  validate  aUenations  made  with 
the  consent  of  the  wife,  recourse  was  had  to  the  general  practice  of  the  oath. 
Judgments  of  the  Exchequer  of  1391;  Marnier,  p.  66.  In  the  sixteenth  cen- 
tury the  old  ideas  as  to  the  absolute  incapacity  of  the  married  woman  had 
become  out  of  date.  Order  of  1511,  and  especially  Order  of  Gerisy  of  1539, 
which  settled  jurisprudence  upon  this  point;  Terrien,  "Gomm.,"  p.  267; 
"  N.  G.,"  527,  538;  "  Placites,"  124.  Owing  to  the  application  of  the  Vellieanum 
the  wife  had  no  right  to  mortgage  her  immovables,  even  with  the  consent 
of  her  husband. 

*  The  Roman  law  starts  with  relative  inalienability  and  ends  with  ab- 
solute inalienability  (cj.  the  "Lex  Julia,"  the  object  of  which  is  to  allow 
second  marriages,  and  the  Justinian  law).  The  Norman  law  progresses  in 
exactly  the  opposite  direction. 

*  As  to  this  mortgage  and  its  position,  cf.  Basnage,  "Tr.  des  Hyp.,"  c.  6. 

792 


Topic  3]  SYSTEMS   WITHOUT   COMMUNITY  [§  549 

ables  with  the  authorization  of  the  law  and  with  the  advice  of 
her  relatives.^ 

One  last  characteristic  of  the  Norman  system  was  the  strict- 
ness with  which  the  prohibition  of  gifts  between  spouses  ^  was  ap- 
plied. It  is  true  that  the  husband  had  his  right  to  curtesy  and 
the  wife  her  dower,  with  its  rights  over  movables  and  jointly 
acquired  property.  —  (A)  During  the  marriage,  every  gift,  even 
mutual  gifts,  and  every  contract  for  a  consideration,  was  for- 
bidden between  spouses;  the  wife  could  not  make  a  will  in  favor 
of  the  husband  and  the  husband  only  had  a  right  to  bequeath  to 
her  the  share  fixed  by  Article  429  of  the  Custom  of  1583;  neither 
spouse  could  give  anything  to  the  relatives  of  the  other.  —  (B) 
Before  the  marriage  neither  betrothed  could  give  to  the  other  any 
part  of  their  immovables;  of  their  movables  they  were  only  au- 
thorized to  dispose  of  a  fraction  calculated  on  the  sum  of  their 
fortune  in  immovables,  so  that,  if  they  had  no  immovables,  they 
could  give  nothing.  The  woman  betrothed,  on  the  other  hand, 
had  the  power  to  dispose  of  one-third  of  her  immovables  present 
and  future  for  the  benefit  of  her  future  husband  (who  already  re- 
ceived all  her  movables) ;  this  is  what  they  called  the  gift  of  mov- 
ables, an  expression  which  seems  to  allude  to  the  fact  that  these 
possessions  which  were  the  object  of  the  gift  could  be  disposed  of 
by  the  husband  in  the  same  way  as  movables,  whereas  the  other 
immovables  of  the  wife  were  inalienable.^  The  gift  of  movables 
is  the  counterpart  of  the  right  of  the  wife  to  acquests  ("N.  C," 
390). 

§  549.  German  System  of  Unity  of  Possessions  ("Giiterein- 
heit,"  "Giiterverbindung")  or  of  the  Community  of  Administra- 
tion ("Verwaltungsgemeinschaft"). — The  matrimonial  systems 
in  use  in  Germany  and  Switzerland  from  the  barbarian  period 
until  the  nineteenth  century  were  scarcely  less  munerous  than  the 
systems  of  succession.^  They  can  be  reduced  to  three  types,  about 
equally  widespread:  unity  of  possessions,  partial  community 
(movables,  acquests)  and  absolute  community.     It  is  no  doubt 

'  But  she  could  alienate  her  movables  and  her  immovables  acquired  after 
the  separation:  "Placites,"  126  et  seq.     Cf.  "Rdgl.  sur  Tutelles,"  1673,  Art.  51. 

2  "N.  C,"  411,  422,  429. 

'  If  made  by  a  widow  who  had  children  the  pift  of  movables  could  not  be 
of  more  than  a  child's  portion.     Cf.  Edict  of  15()0;  see  Guyot,  Houard. 

■•  Wachter  counted  more  than  sixteen  principal  systems  in  Wiirtemburg 
alone,  upon  one  single  point,  that  of  the  rights  of  succession  of  the  spouses: 
Stohbc,  IV,  75;  Lardy,  !'L<5gisl.  des  Cantons  Suisses  en  Mat.  de  Tutelle,  de 
R(5gime  matrim.,"  1876  (charts);  Schroeder,  "Gesch.  d.  ehel.  Gut.,"  II;  Masse, 
"These,"  p.  163  et  seq. 

793 


§  549]  SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

under  cover  of  the  first  that  there  was  introduced  here  and  there, 
foUowini^  the  acceptance  of  the  Roman  law,  the  Southern  system 
of  marriage  portion.  The  unity  of  possessions  is  not  unknown  in 
France;  it  is  found  in  some  of  the  Customs  of  the  East,^  such  as 
the  Custoni  of  Reims,  Art.  239  of  which  lays  it  down  that  the 
spouses  do  not  have  a  community  of  possessions;^  and  the  au- 
thors of  the  Civil  Code  thought  it  tneir  duty  to  establish  it  in 
Articles  1530  et  seq.  The  "mainplevie"  of  the  Custom  of  Liege 
is  also  only  a  variation  of  this,^  In  Germany  it  has  thrown  out 
such  deep  roots  that  the  new  Civil  Code  has  made  of  it  the  system 
of  the  common  law. 

Unity  of  possessions  is  very  closely  connected  with  the  system 
of  the  barbarian  period.  As  in  the  latter  system,  there  is  a  unity 
of  inheritance;  the  possessions  of  the  two  spouses  are  mingled  in  a 
single  mass.  Under  its  very  oldest  form  the  wife  owns  nothing, 
or  almost  nothing;  the  husband  becomes  "dominus  dotis"  as  in 
Rome."*  In  a  second  stage  the  wife  keeps  the  ownership  of  at  least 
a  share  of  the  immovables  contributed  by  her;  the  husband  only 
has  their  administration;  the  unity  of  inheritance  has  become  an 
entirely  external  thing;  there  is  rather  a  juxtaposition  of  posses- 
sions ("Giiterverbindung")  than  a  unity  of  possessions  ("Gliter- 
einheit").     If  the  powers  of  the  husband  should  be  still  more 

1  These  French  Customs  did  not  forbid  the  spouses  to  stipulate  for  the 
community  of  possessions:  Pothier,  "Comm.,"  no.  4G1. 

2  "Reims,"  239  et  seq.:  the  husband  can  dispose  of  the  movables  and  the 
jointly  acquired  property;  the  widow  has  an  option,  she  can  either  take  one- 
half  of  the  movables  and  jointly  acquired  property  or  else  keep  her  dower 
and  the  share  contributed  by  her;  the  heirs  of  the  wife  who  dies  before  her 
husband  have  a  right  to  the  jointly  acquired  property.  There  are  many  who 
maintain  that  there  is  a  community  (Varin,  "Arch.  leg.  de  Reims,"  I,  618- 
697),  but  that  the  rule  "Uxor  non  est  proprie  socia,  sed  speratur  fore,"  is 
followed  literally:  Chauny,  I,  1;  Chimay,  II,  1;  Constantin,  "Le  Dr.  des  gens 
maries  a  Reims,"  1903  (Thesis). 

'  All  the  present  and  future  possessions  of  the  wife  form  a  part  of  the 
inheritance  of  the  husband,  who  can  dispose  of  them  as  though  he  were  their 
owner,  even  by  will :  Pawillart,  14s.,  Art.  110.  About  the  sixteenth  century 
it  was  admitted  that  the  husband  could  not  restrict  the  rights  of  his  surviv- 
ing wife  by  will.  The  only  advantage  derived  from  this  system  by  the  wife 
was  that  in  case  she  survived  she  was  given  all  the  property  left  by  the 
husband  (excepting  fiefs).  Britz,  p.  859,  mistakenly  concludes  from  this 
that  we  have  here  an  absolute  community;  there  can  be  no  question  of  a 
community  where  one  of  the  parties  has  the  power  to  deprive  the  other  of 
all  rights  by  will:  Van  Wetter,  "Le  Droit  Romain  et  le  Droit  Celtique,"  1898, 
with  still  less  reason  on  his  side,  has  gone  back  to  the  abandoned  theory  of 
the  Roman  origin  of  "Mainplevie"  (cf.  "manus").  Cf.  Chimay,  II,  1;  Arden- 
bourg,  "Bouc  van  tale,"  46;  Ragueau,  see  "Plevie";  see  Guyot. 

■*  See  ante,  "Mainplevie"  at  Liege.  The  law  of  Beam  merely  obhges  the 
husband  to  refund  the  value  of  what  he  has  received;  he  thus  becomes  the 
owner  of  the  marriage  portion. 

794 


Topic  S]  SYSTEMS   W7TH0UT  COMMUNITY  [§  549 

lessened,^  then  they  would  arrive  at  a  third  phase,  that  of  the 
separation  of  estates  {yost,  §  565);  each  spouse  would  have  the 
management  and  enjoyment  of  his  inheritance.  There  is  no 
need  to  say  that  there  are  countless  transitions  between  these 
various  phases,  and  that  the  first  two  cannot  always  be  distin- 
guished from  community  as  clearly  as  one  might  think.  Under 
the  community  system,  as  under  that  of  unity  of  possessions,  the 
husband's  power  means  that  the  husband  has  the  administration 
and  the  enjoyment  of  the  possessions  of  the  wife  and  the  right  to 
dispose  of  her  movables,  and  that  the  woman  has  no  capacity. 

The  causes  of  preference  for  unity  of  possessions  rather  than 
the  community  are  all  the  more  difficult  to  discern  because  these 
two  systems  which  appear  to  be  dissimilar  have  in  this  respect 
many  points  in  common.  During  the  marriage  no  external  in- 
dication shows  whether  the  spouses  have  community  of  posses- 
sions or  not.  The  community  is  characterized  by  the  mingling  of 
the  interests  of  the  two  spouses,  by  their  participation  in  the 
profits  and  losses  resulting  from  this  life  in  common.  It  is  a  sys- 
tem which  harmonizes  with  a  system  of  individual  ownership;  it 
can  be  applied  to  movables  and  to  acquests.  The  unity  of  posses- 
sions lends  itself  better  to  the  preservation  of  the  family  property; 
it  admits  of  more  easily  providing  securities  for  the  benefit  of  the 
wife  and  her  relatives  against  abuses  of  the  husband's  power,  — 
abuses  of  which  the  wife  living  in  a  community  seems  to  have 
to  take  the  risk.  The  Customs  of  the  Pyrenees  form  an  example 
in  support  of  these  ideas  too  curious  not  to  be  cited  here,  although 
it  may  appear  to  be  out  of  place :  they  declare  that  there  is  a 
community  of  possessions  ("meitades")  between  younger  chil- 
dren ("soult"  and  "soulte")  who  intermarry  and  receive  only  a 
small  marriage  portion,  whereas  there  is  no  community  between 
the  eldest  son  or  the  eldest  daughter  who  are  heirs,  receiving 
in  this  capacity  the  family  possessions  and  their  "stranger" 
spouse.^ 

1  We  believe,  contrary  to  the  opinion  hold  by  Heualer,  that  the  question 
of  the  matrimonial  system  is  closely  connected  with  that  of  the  capacity  of 
the  married  woman;  thus  separate  maintenance  is  inconsistent  with  the 
rights  of  the  husband  over  his  wife  in  the  very  old  legislation;  it  was  necessary 
for  the  wife  to  be  capable  of  becoming  the  owner  of  the  immovables  for  the 
community  of  acquests  to  exist.  But  we  admit  that  once  the  married  woman 
was  recognized  as  having  capacity,  it  bec^ame  possible  to  form  difTerent  systems, 
on  the  one  hand  the  community,  on  the  other  the  possessions  held  in  com- 
mon, while  at  the  same  time  placing  her  under  the  husband's  power  under 
practically  the  same  conditions  as  existed  before. 

2  "Soult"  ("solutus")  seems  to  mean:  detached  from  the  paternal  house 

795 


§  549]  SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES        [Chap.  V 

To  describe  the  unity  of  possessions  ^  one  should  first  of  all 
recall  the  force  of  the  husband's  "mundium."  The  "Schwaben- 
spiegel  "  says  that  the  husband  is  the  master  and  the  guardian 
of  his  wife  ("Vogt  und  Meister").  According  to  the  "Sachsen- 
spiegel"  he  takes  her  body  and  possessions  under  his  guardian- 
ship ("nimt  he  in  sine  gewere  al  ir  gut  to  rechter  vormuntscap"). 
Husband  and  wife  have  no  distinct  possessions  during  their  life; 
to  the  one  to  whom  the  'wife  gives  her  body  she  also  gives  her 
possessions;  she  has  nothing  during  the  marriage  excepting  "the 
blue  sky  and  her  distaff."  Like  the  "  tutor  "  of  former  times,  the 
husband  acquires  the  absolute  ownership  of  the  movables  of  his 
wife,  subject  to  paying  the  debts  for  which  she  is  held  before 
the  marriage.  He  gains  the  product  of  the  wife's  labor,  the 
income  of  the  land  which  she  possesses;  every  acquisition  made 
during  the  marriage  belongs  to  him  exclusively,  even  if  they 
arise  from  the  possessions  of  the  wife.  He  has  the  administration 
as  well  as  the  enjoyment  of  the  immovables^  which  his  wife 
owns;  but  he  is  not  authorized  to  alienate  them  without  the  co- 
operation of  his  wife,  and  these  possessions  do  not  constitute  a 
pledge  for  his  creditors;  "The  possessions  of  the  wife  should 
neither  increase  nor  decline."  At  the  death  of  one  of  the  spouses 
the  disposal  of  the  possessions  which  have  been  joined  in  the 
hands  of  the  husband  was  regulated  in  various  ways.  Some- 
times the  surviving  wife  is  only  given  a  small  portion  of  them, 
such  as  a  third  of  the  acquests;  sometimes  she  takes  back  the  share 
which  she  has  brought,  at  least  her  family  possessions;  and  her 
heirs  have  the  same  rights  as  she  has  ;  sometimes  no  partition 

According  to  the  "Cout.  de  Bareges,"  1670,  Art.  13,  these  younger  children  are 
called  "sterles,"  "esterlos"  (outside  of  the  house);  so  long  as  they  are  within 
the  house  they  are  slaves.  Cf.  "Cout."  of  1760,  VII;  Soule,  24;  Lagreze,  "Dr. 
dans  les  Pyr.,"  p.  185;  "La  Navarre,"  II,  242.  "Adventice"  (acquired) 
means  a  stranger  (to  the  family). 

1  Unity  of  possessions  is  to  be  found  in  the  "Sachsenspiegel,"  I,  31,  20-24, 
45;  III,  74s.,  and  in  the  law  of  Magdeburg.  On  the  other  hand  in  Westphalia 
if  there  are  children,  a  community  of  acquests  becomes  established  between 
the  spouses.  Franconia  and  Southern  Germany  are  also  countries  where  the 
conimunity  exists.  But  there  is  some  question  as  to  whether  the  "Schwaben- 
spiegel"  admits  the  "Gesammte  Hand"  or  the  "Giiterverbindung."  To  the 
effect  that  it  is  the  latter,  cf.  Wyss,  p.  61;  "Schwabenspiegel,"  I,  11,  20,  21, 
35,  36,  63,  71,  166;  II,  23,  100;  III,  98,  ed.  Matile;  Stobbe,  IV,  93  (differing  with 
the  "Sachsenspiegel"  as  follows:  the  consent  of  the  wife's  relatives  is  not 
always  required  for  the  alienation  of  her  lands,  etc.);  Huber,  op.  dt.,  connects 
the  law  of  B(3arn  with  that  of  the  Burgundians. 

2  "Usufructus  maritahs,"  an  incorrect  name  for  the  old  law,  but  one  which 
tends  to  become  more  applicable  in  proportion  as  the  Roman  law  takes  root 
in  Germany.  Influence  of  this  law  on  the  nature  of,  and  the  privileges  at- 
tached to  the  marriage  portion.     Cf.  the  ItaUan  Statutes:  Fertile,  III,  353. 

796 


Topic  3]  SYSTEMS   WITHOUT   COMMUNITY  [§  549 

takes  place,  but  the  surviving  spouse  takes  the  entire  mass  ^  (ex- 
cepting that  it  cannot  be  disposed  of  to  the  prejudice  of  children, 
if  there  be  any,  "Verfangenschaft").  Outside  of  these  cases  the 
wife  has  ordinarily  those  rights  of  survivorship,  whether  legal  or 
established  by  agreement,  which  survive  as  institutions  from  the 
law  of  the  previous  period;  Dower  ("Witthum"  in  Suabia; 
"Leibgeding,"  "Leibzucht"  in  Saxony),  "increase  of  the  marriage 
portion,"  —  that  is  to  say,  dower  in  proportion  to  the  marriage 
portion  ("Widerlegung"),  "  ]\Iorgengabe  "  (which  is  sometimes 
preserved).  She  is  also  recognized  as  having  the  right  to  live  in 
the  conjugal  house  ("Beisitz")  as  long  as  she  does  not  remarry, 
—  at  least,  if  there  are  no  children.  The  movables  belong  to 
the  husband  or  his  heirs,^  with  the  exception  of  the  "Gerade" 
(clothing  and  ornaments)  ^  reserved  to  the  widow  or  her  near- 
est female  relative  ("Niftel"),  and  of  the  "Musstheil,"  that  is 
to  say,  of  one-half  of  the  provisions  which  are  found  in  the 
house  upon  the  death  of  the  husband,  to  which  the  widow  alone 
has  the  right,  to  the  exclusion  of  his  heirs. ^ 

In  the  course  of  time  the  Germanic  system  of  the  unity  of 
possessions  became  more  advantageous  for  the  wife.  The  hus- 
band ceased  to  be  looked  upon  as  her  guardian  and  lost  the 
lucrative  rights  which  were  connected  with  this  title;  he  only 
kept  the  administration  of  the  entire  patrimony  in  his  quality  of 
head  of  the  family.    He  no  longer  obtained  the  possessions  of  the 

1  "Worms,"  1184;  Stobbe,  222,  242.  Other  Customs  give  the  widower  one- 
half  and  the  widow  one-third  or  the  share  of  a  child  (share  of  the  sword, 
Bhare  of  the  distaff):  Schroeder,  p.  313.  The  "Alleinerbrecht  des  iiberle- 
benden  Ehegatten"  must  at  first  have  existed  only  for  the  benefit  of  the 
husband,  and  tliis  was  not  a  right  of  succession,  but  the  maintaining  of  a 
pre-existing  right.  As  far  as  the  wife  is  concerned  it  was  an  innovation; 
it  is  readily  understood  that  it  could  exist  in  new  towns  where  "area;"  were 
granted  at  one  and  the  same  time  to  the  husband,  wife  and  children,  and 
where  the  inhabitants  had  no  family  possessions,  but  only  acquests.  Cf. 
"Mainplevie"  at  Liege.  Switzerland:  "portio  statutaria"  ("Eherecht"),  a 
hcreditarj'  right.  Perhaps  it  is  by  tliis  means  that  the  formula  of  the  "Ass. 
de  J6rus.,"  "C.  des  B.,"  186:  "No  man  is  so  much  the  right  heir  of  the  dead 
as  his  lawful  wife,"  is  to  be  accounted  for.  Van  Wetter,  loc.  cit.,  p.  46;  Glasson, 
VII,  379. 

2  As  to  wedding  presents,  cf.  Stobbe,  IV,  163. 

'  As  to  the  "Gerade":  "Sachsensp.,"  I,  24,  3;  cf.  I,  45,  2;  Picker,  IV,  20. 

*  Heusler  sees  in  the  "Gerade"  and  the  "Musstheil"  a  proof  of  the  exist- 
ence of  a  sort  of  community  of  movables  (with  unequal  shares),  for  what 
these  possessions  consist  of  varies  with  the  fortune  of  the  husband;  they  are 
mingled  during  the  marriage  with  the  other  movables,  and  the  creditors  of 
the  husband  can  distrain  upon  them.  But  as  the  law  which  came  into  exist- 
ence after  the  "Sachsenspiegel"  ehminates  all  idea  of  a  community,  the 
rights  of  the  wife  had  to  be  termed  rights  of  succession  contrary  to  the  spirit 
and  the  terms  of  the  old  legal  system.     Cf.  Stobbe,  IV,  82. 

797 


§  549]  SYSTEM    OF   PROPERTY    BETWEEN    SPOUSES         [Chap.  V 

wife,  in  case  he  survived  her,  to  the  prejudice  of  the  natural  heirs 
of  the  latter.  The  restitution  of  the  wife's  immovables  was  guar- 
anteed to  her  by  forbidding  the  husband  to  alienate  them  with- 
out her  acting  with  him.  Securities  are  provided  which  have  the 
effect  of  allowing  her  to  recover  the  value  of  her  land  which  has 
been  alienated,^  or,  again,  of  the  share  of  movables  brought 
by  her;  she  gets  first  of  all  a  contractual  lien  on  certain  posses- 
sions of  the  husband,  and  afterwards  an  implied  mortgage  on 
the  whole  of  his  inlieritance.  The  incapacity  of  the  married 
woman  became  less,  a  change  which  took  place  of  its  own  accord 
from  the  time  when  she  had  a  distinct  inheritance  of  her  ow^n, 
and  when  the  formation  of  the  family  no  longer  absolutely  de- 
manded the  complete  subordination  of  its  members  to  its  head. 
She  could  bind  herself  if  she  had  the  authorization  of  her  hus- 
band (or  even  of  a  court  in  modern  law),  have  dealings  with  her 
husband  (except  that  the  intervention  of  a  guardian  or  compli- 
ance with  certain  formalities  to  assure  her  freedom  was  neces- 
sary), carry  out  urgent  affairs  in  the  absence  or  illness  of  her 
husband.  The  contracts  which  she  made  alone,  without  any  au- 
thorization, she  or  her  heirs  could  be  compelled  to  perform  at  the 
dissolution  of  the  marriage.^  She  even  had  the  right  to  bind  her 
husband  for  household  necessaries  ("Schliisselgewalt")  ^  or  when 
he  had  authorized  her  to  carry  on  a  separate  business  or  trade. 
Towards  the  thirteenth  century  the  separate  estate  by  decree 
was  introduced;  '^  the  husband  who  was  a  prodigal  and  a  spend- 
thrift could  be  deprived  of  his  rights,  and  then  it  was  the  w^ife  who 
had  the  administration  and  enjoyment  of  them,  sometimes  alone 
and  sometimes  with  the  aid  of  a  guardian  in  localities  where  the 
guardianship  of  women  was  in  force. 

The  system  of  the  separate  property,  "Sondergut,"  is  nothing 
more  than  our  separate  estate  (post,  §  565)  by  agreement,  or,  if 
one  prefer  it,  the  Roman  system  of  paraphernalia.    With  relation 

'  As  to  the  reinvestment  and  the  recompense,  cf.  Stobbe,  IV,  164. 

2  In  the  Hanseatic  towTis  the  creditor  who  meets  his  debtor  (when  the 
debtor  is  a  woman)  is  authorized  to  distrain  upon  her  dress;  the  husband  has 
to  pay  him  off,  at  least  if  he  wishes  his  wife  to  be  able  to  recover  her  clothing 
and  go  out  of  the  house. 

3  In  the  old  law  the  wife  can  only  act  as  her  husband's  overseer  and  can 
only  enter  into  binding  obligations  to  the  extent  of  very  small  sums  of  money, 
3,  5,  and  12  deniers.  Modern  law  tends  to  recognize  her  as  having  a  power 
of  her  own,  subject  to  the  control  of  her  husband,  assuming  that  there  is  no 
opposition  on  his  part.  The  result  of  tliis  is  that  she  binds  herself  when 
she  binds  her  husband. 

^  ''Schwabenspiegel,"  I,  73,  ed.  Matile;  Stobbe,  IV,  292. 

798 


Topic  3]  SYSTEMS   WITHOUT   COMMUNITY  [§  549 

to  the  "Sondergut,"  the  woman  has  the  same  capacity  as  though 
she  were  not  married.  At  first  only  those  things  which  are  exclu- 
sively for  the  use  of  women,  such  as  clothing  and  jewels,  "Nadel- 
geld,"  were  left  at  their  disposal.  And  later  the  Custom  allowed 
them  to  reserve  by  contract  of  marriage  every  kind  of  property, 
movables  or  immovables;  third  parties  who  made  them  gifts  were 
allowed  the  same  rights.  The  "  Sachsenspiegel "  still  clung  to  the 
principle  of  the  inheritance,  but  a  hundred  years  later  these  reserva- 
tions are  authorized  by  the  "INIagdeburg-Blume."  In  its  develop- 
ment the  practice  of  the  "Sondergut"  resulted  in  nothing  less  than 
the  emancipation  of  the  married  woman  carried  out  by  agreement. 
The  "Verfangenschaft,"  which  was  especially  in  use  in  countries 
where  the  community  existed  (Franconia,  Southern  Germany), 
has  the  effect  of  forbidding  the  spouse  who  survives  and  who  re- 
ceives the  entire  estate  of  both  spouses  to  make  any  disposal  of 
it  to  the  detriment  of  the  children  of  the  marriage;  it  is  pre- 
served for  the  latter  in  such  a  way  that  in  case  the  surviving 
spouse  enters  into  a  second  marriage  the  children  of  this  second 
marriage  have  absolutely  no  share  in  it;  conversely,  the  children 
of  the  first  marriage  can  claim  nothing  out  of  that  which  consti- 
tutes the  estate  of  the  second  marriage.  This  system  often  re- 
sulted in  great  inequalities  between  the  children  of  the  various 
marriages,  —  inequalities  which  were  all  the  more  regrettable 
as  they  were  due  to  pure  accident,  such  as  the  date  of  the  acquir- 
ing of  an  inheritance  by  the  spouse  who  married  again ;  should  the 
relatives  of  this  spouse  die  during  the  first  marriage,  their  inherit- 
ance wenl  to  the  children  of  the  first  marriage;  should  these  rela- 
tives die  a  little  later,  the  children  of  the  second  marriage  would 
profit  thereby.  Such  results  as  these  were  repugnant,  but  the  old 
law  was  better  adapted  to  them  than  to  the  fusion  of  the  two 
families  into  one,  and  so  they  had  to  be  allowed  in  order  to 
avoid  such  results.  By  virtue  of  the  marriage,  a  community  of 
interests,  and  often  even  a  community  of  possessions,  had  been 
established;  spouses  and  children  were  included  therein;  a  new 
union  created  a  distinct  community,  another  "  Hausgemeinder- 
schaft."  ^    The  family  spirit  was  opposed  to  one  community  be- 

'  Schroeder,  p.  724  (bibl.)  seeks  to  find  the  origin  of  this  institution  in 
the  clauses  employed  in  gifts  between  spouses;  it  is  thus,  he  says,  that  the 
mutual  gift  in  writing  gave  rise  to  the  mutual  gift  of  blood.  But  how  account 
for  these  clauses  themselves?  Moreover  see  Heusler,  II,  457,  473  (contrast 
between  the  Suabian  law  and  the  Franconian  law);  Ficker,  "Unt.,"  II,  213; 
IV,  556.     Cf.  Britz,  p.  670  (devolution);  "Roisin,"  p.  88. 

799 


§  549]  SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES         [CiiAP.  V 

coming  enriched  at  the  expense  of  another;  the  surviving  spouse 
was  left  the  possessions  of  the  first  community,  but  with  his  hands 
tied  in  case  he  might  wish  to  dispose  of  them.  During  the  mar- 
riage these  possessions  were  practically  incapable  of  being  dis- 
posed of  by  the  husband,  or,  at  least,  he  could  not  dispose  of  them 
without  the  intervention  of  his  wife;  after  the  dissolution  of  the 
marriage  the  inalienability  persisted  in  practically  the  same  way; 
the  co-operation  of  the  children  of  the  first  marriage  was  neces- 
sary in  order  to  alienate.  We  have  no  difficulty  in  seeing  how  this 
practice  of  the  "  Verfangenschaft "  (or  devolution)  furnished  the 
children  of  the  first  marriage  with  guaranties  against  the  risk 
which  a  second  marriage  caused  their  interests  to  be  subjected  to; 
like  the  dower  of  children,  or  the  continued  community  {yost, 
§  564),  this  practice  served  the  same  purpose  as  the  application 
of  the  laws  of  the  Lower  Empire  on  the  subject  of  second  mar- 
riages did  elsewhere. 

The  institution  of  the  "Verfangenschaft"  is  rather  often  modi- 
fied by  the  admission  of  the  "  Theilrecht,"  or  right  to  partition, 
which  is  commonly  considered  as  being  of  more  recent  date 
(middle  of  the  thirteenth  century).  The  surviving  spouse  who 
wished  to  remarry  could  be  forced  to  partition  with  the  chil- 
dren; with  his  share  which  was  thus  released,  and  the  possessions 
which  he  acquired  afterwards,  he  entered  into  a  new  community; 
as  to  his  children,  they  were  given  their  share  once  for  all;  they 
had  no  longer  any  claim  over  his  inheritance;  membership  in 
the  community  in  their  case  had  killed  heirship.  The  "Theil- 
recht" was  thus  inspired  by  the  same  thought  as  the  "Verfang- 
enschaft"; the  community  established  by  the  first  marriage 
remained  entirely  distinct  from  that  w^hich  resulted  from  the 
second  marriage.  Difficulties  were  presented  with  regard  to 
acquests  made  or  debts  contracted  during  the  interval  between 
the  two  marriages;  the  Customs  varied  a  great  deal  upon  this 
point,  but  at  the  same  time,  as  a  general  thing,  these  acquests  and 
debts  were  included  in  the  partition.  Towards  the  thirteenth 
century,  and  especially  since  the  middle  of  the  fourteenth,  there 
begin  to  appear  in  marriage  contracts  agreements  for  "afTratella- 
tion  "  between  the  children  of  diflFerent  marriage  "  unio  pro- 
Hum,"  "Einkindschaft"  ("To  einen  kindermadchen"),  by  virtue 
of  which  the  children  of  both  marriages  should  be  treated  as 
though  they  were  brothers.  In  cases  of  this  sort  there  are  no 
longer  two  separate  communities,  but  only  one.    The  spouse  who 

800 


Topic  3]  SYSTEMS  WITHOUT   COMMUNITY  [§  550 

marries  again  has  the  advantage  of  no  longer  being  compelled  to 
make  a  liquidation,  which  is  perhaps  untimely,  and  which  is  at 
any  rate  complicated  and  prejudicial  to  his  interests.  As  to  the 
children,  their  equality  is  also  justified  in  many  cases;  and,  if  it 
is  not  equitable,  for  example,  because  the  predeceased  spouse  had 
a  fortune  which  was  greater  than  that  of  the  new  spouse,  or  vice 
versa,  there  is  nothing  to  prevent  a  stipulation  being  made  for  a 
reference-legacy  for  the  benefit  of  the  children  of  the  first  or 
second  marriage.^ 

§  550.  The  Roman  System  of  Marriage  Portion  remained  in 
force  in  Italy ,^  in  Spain  ^  and  in  the  countries  of  written  law^  in 
France;  it  even  penetrated  into  Germany.^  In  its  essential  char- 
acteristics it  is  a  system  of  the  separation  of  the  interests  of  the 
spouses.  The  wife  keeps  her  properties;  she  gives  the  husband 
only  a  part  of  them,  —  the  marriage  portion  ("  dot,"  "dos"),  which 
is  a  reserve  fund  for  her  and  for^the  family,^  thenceforth  not  sub- 
ject to  any  alienation;  the  husband  has  no  right  to  dispose  of  it, 
nor  has  the  wife;  and  she  cannot  bind  herself  with  respect  to  her 
marriage  portion.  These  broad  rules  were  not  interfered  with, 
and  court  decisions  and  practice,  and  sometimes  even  local  cus- 
tom, added  to  them  and  corrected  them  in  ways  some  of  which 
are  of  importance. 

Contrary  to  the  axiom  of  the  Customs,  "No  marriage  portion 
from  him  who  does  not  wish  it,"  the  father  of  the  family  is  held 
bound  in  the  South  to  give  his  daughter  who  has  come  of  age 
a  marriage  portion,  even  though  she  marry  without  his  consent.^ 

1  Stohhe,  244;  Heusler,  II,  476;  "Z.S.S.,  G.A.,"  1901,  440;  "Tract.  Uni. 
jur.,"  VI;  Groeben,  "De  orig.  unionibus  prolium,"  1870;  Beseler,  "Erbvertr.," 

I,  7;  Viollet,  pp.  489,  789.     Cf.  Sicily:  Fertile,  III,  360. 

2  "Digesto  Ital.,"see  "Beni";  Salmoli,  347;  Pertile,  III,  320;  Zdekaner, 
"Patto  dotale"  ("R.  Ital.  p.  le  sc.  giur.,"  25,  99);  Ciccaglionc,  "Patti  nuziali" 
(Naples),  1881;  "Storia  d.  Dir.  Ital.,"  I,  444;  Laltes,  "Dir.  consuet.  Lomb.," 
p.  239. 

^  "Siete  Part.,"  IV,  11;  "F.  de  Vizcaya,"  XX. 

*  Stobbe,  §  235. 

6  "F.  de  Bdarn,"  269. 

«  L.  19,  Dig.,  "de  ritu  nupt.";  L.  "si  pater,"  "Cod.  Just.,"  "de  dot."; 
"Nov.,"  21  of  Leo.  This  Custom  makes  its  appearance  in  the  deeds  of  the 
eleventh  century:  D.  Vaissette,  "Preuves,"  nos.  244,  385,  388,  etc.;  "Siete 
Part.,"  IV,  11,8;  "Bord.,  N.  C,"  43;  "Toulouse,"  117  (the  daughter  who  has 
been  given  a  marriage  portion  is  excluded  from  the  succession  of  her  father); 
Tardif,  "Le  Dr.  priv6  au  XIII",  s.,"  p.  30,  SI;  Henrys,  I,  4,  q.  52;  Roussilhe, 
no.  4,  87.  The  conferring  of  the  marriage  portion  is  generally  carrie<l  out  by 
means  of  a  notarial  deed:  "Toulouse,"  109;  D.  Vaissette,  V,  518,  1031.  As 
to  the  trousseau,  wedding  chest,  comb,  cf.   Ragueau;  Lagrhe,   "Navarre," 

II,  185;  Breionnier,  see  "Quest."  Marriage  portion  of  nuns:  Mallebay  de 
la  Mothe,  "Quest."  D.,  20;  Benedicti,  see  "Dotem." 

801 


§  550]  SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES        [Chap.  V 

This  obligation,  which  is  not  only  moral,  but  legal,  is  incumbent, 
if  there  is  no  father,  upon  the  paternal  grandfather  and  the  mother. 
The  courts  compel  them  to  pay  it,  and  if  necessary  determine  its 
amount.  The  woman  often  appointed  as  her  marriage  portion 
all  her  possessions  present  and  future.^  If  there  were  no  ap- 
pointment, it  was  usually  assumed  that  her  possessions  were  para- 
phernalia; however,  the  question  was  disputed,  and  in  certain 
localities,  —  for  example,  at  Toulouse  and  in  Auvergne,  —  her 
properties  were  held  as  forming  a  part  of  the  marriage  portion, 
just  as  they  did  in  countries  of  Customs.^ 

The  power  of  the  husband  did  not  exist  in  countries  of  written 
law.^  The  wife,  who  was  the  owner  of  her  paraphernalia,  had  the 
enjo\Tnent  and  the  administration  of  them  as  though  she  had  not 
been  married.^  At  the  same  time,  in  countries  of  written  law, 
within  the  jurisdiction  of  the  Parliament  of  Paris  (Lyons,  Beau- 
jolais,  ]\Iacon,  and  Forez)  she  was  compelled  to  provide  herself 
with  the  authorization  of  her  husband  in  order  to  dispose  of  them 
(Civil  Code,  1576). 

According  to  the  Roman  law,  the  possessions  forming  a  part 
of  the  marriage  portion  became  the  property  of  the  husband,  but 
he  was  bound  to  restore  them.^  This  was  a  very  limited  owner- 
ship, especially  with  regard  to  the  land,  which  formed  a  part  of 
the  marriage  portion,  and  which  was  made  inalienable.  Thus, 
the  Glossators  queried  whether  the  marriage   portion  belonged 

^  "Toulouse,"  87,  and  with  regard  to  this,  Casevieille  and  Soulatges  (who 
mistakenly  interpret  this  as  an  application  of  the  L.  "Qutntus  Mucins," 
Dig.,  24,  1,  51,  according  to  which  acquisitions  made  by  the  wife  are  presumed 
to  belong  to  the  husband  and  to  have  been  paid  for  out  of  his  money,  unless 
she  prove  the  contrary,  a  very  reasonable  presumption  moreover,  when  all 
the  wife's  property  is  included  within  her  marriage  portion);  "Auvergne," 
14,  8  (the  marriage  portion  is  here  called  "  Verchere,"  see  Ferriere,  Du  Cange); 
"Toulouse,"  84,  85  (the  presents  given  to  the  spouses  the  day  before  the 
wedding  or  the  day  of  the  wedding  itself  belong  to  the  husband);  "Bord., 
N.  C,"  48.  On  the  Ordinance  of  1563,  17,  see  Ginoulhiac,  p.  139  (the  mar- 
riage portion  should  not  be  more  than  10,000  "tournois").  —  Italy:  Fertile, 
III,  352. 

2  The  acquired  property,  or  property  accruing  during  the  marriage,  is 
included  in  the  paraphernaUa :  Ginoulhiac,  p.  138;  Haenel,  "Dissens.  domin.," 
pp.  6,  105. 

'  Excepting  in  certain  localities:  Auvergne,  Masuer,  XIV,  39;  Bordeaux, 
"F.  de  Beam,"  261.  Everj^ivhere  the  wife  owes  "obsequium"  to  her  husband 
(c/.  L.  "Assiduis"),  for  exam.ple  she  is  bound  to  go  where  he  goes:  "Dec. 
cap.  Tolos.,"  86.  We  may  observe  the  fact  that  as  a  general  thing  marriage 
does  not  emancipate,  as  it  does  in  countries  of  Customs,  which  means  that 
the  woman  may  be  subject  to  the  paternal  power:  Serres,  "Inst.,"  I,  12. 

*  "Petrus,"  I,  32:  "etiam  sine  consensu  viri  et  liberorima."  Contra:  "Bor- 
deaux." 

5  "Cod.  Th^od.,"  Ill,  13;  Pajrien,  22;  "Petrus,"  I,  30  et  seq.;  IV,  54; 
"Toulouse,"  87. 

802 


Topic  3]  SYSTEMS  WITHOUT   COMMUNITY  [§  550 

to  the  husband  or  to  the  wife  ("Diss,  domin.,"  p.  436);  after  them 
our  old  authors  said  that  the  husband  was  the  master  of  the  mar- 
riage portion,  that  he  had  the  legal  title  to  it;  they  were  willing 
to  add  that  the  wife  kept  the  true  ownership  of  it;  and  the  more 
recent  of  them  treated  the  husband  as  a  mere  usufructuary.  The 
Civil  Code  merely  re-enacted  their  doctrine  by  denying  to  the 
husband  the  ownership  of  the  marriage  portion,  and  only  left  him 
its  enjojTnent.^ 

The  immovables  of  the  marriage  portion  are  inalienable;  neither 
the  husband  alone  nor  the  wife  alone,  nor  the  two  spouses  acting 
together,  can  make  a  disposal  of  them.  The  Custom  of  Tou- 
louse, 103,  agreeing  with  the  Breviary  of  Alaric,  authorized  an 
ahenation  of  them  which  was  made  by  the  two  spouses  act- 
ing together.  "This  was  a  disastrous  Custom,"  said  the  Glos- 
sator Casevieille,  "the  most  obvious  result  of  which  would  be  to 
deprive  the  wife  of  her  marriage  portion,  and  one  which  I  have 
never  seen  enforced."  ^  In  his  time  the  absolute  inahenability  of 
the  Justinian  Law  had  taken  the  place  of  the  relative  inalienability 
of  the  "Lex  Julia."  ^    This  was  a  consequence  of  the  revival  of 

^  The  husband's  ownership  is  again  affirmed  by  Argou,  III,  8:  R.  de  La 
Combe,  Ferriere,  see  "Dot";  "Siete  Part.,"  IV,  11,  7.  But  Roussilhe,  no.  216, 
denies  its  existence.  Masuer,  XIV,  25,  also  used  to  say,  in  speaking  of  the 
reclaiming  of  the  land  included  within  the  marriage  portion:  "it  is  nec- 
essary that  both  should  take  part  in  it,  the  husband  as  far  as  the  usufruct 
is  concerned,  and  the  wife  with  regard  to  the  ownership."  The  other  authors 
who  are  cited  habitually  in  support  of  this  proposition  merely  give  a  transla- 
tion of  equivocal  expressions  of  the  Roman  law  (for  example  D.  "de  j.  dot.," 
75:  "quamvis  in  bonis  mariti  dos  sit,  mulieris  tamen  est");  Wallon,  p.  133. 
Thus  Domat,  "Lois  civ.,"  1,  9,  1,  4,  according  to  whom  the  husband  alone 
acts,  if  it  pleases  him  so  to  do,  or  else  the  wife  acts  with  the  authority  of  the 
husband  or  of  the  law.  Cf.  Tessier,  "Quest,  sur  la  Dot,"  1852.  —  Upon  this 
question  of  the  bringing  of  the  actions  for  real  property  with  regard  to  im- 
movables included  within  the  marriage  portion,  the  old  case-law  was  not 
very  well  settled:  Tessier,  II,  137;  Roussilhe,  I,  255. 

2  "Petrus,"  I,  34  (cf.  "Nov.,"  61).  The  same  rule  is  applied  to  the  gift 
"propter  nuptias."  —  Cf.  "F.  de  Beam,"  264,  262;  F.  of  1552,  "r.  de  mariti," 
15;  "Bord.,  A.  C,"  114;  "Montpellier,"  1205,  14:  consent  of  the  father  and 
mother  or,  if  this  is  not  obtained,  of  the  wife's  relatives:  "Salon"  in  Giraud, 
II,  254  (oath).  —  The  "Cout.  de  Toulouse,"  110,  also  allows  the  wife  to  bind 
herself  on  behalf  of  her  husband,  excepting  that  it  does  not  allow  her  a  priv- 
ileged recourse  similar  to  that  which  she  has  in  matters  concerning  her  mar- 
riage portion.  —  Gide,  2d  ed.,  p.  392. 

'  In  our  time  a  formula  has  been  suggested  which  was  unknown  to  our  old 
authors:  it  would  be  better  for  the  wife  with  a  marriage  portion  to  be  unable 
to  alienate  rather  than  for  the  land  to  be  inalienable,  iiut  so  long  as  the 
husband  was  looked  upon  as  the  owner  of  the  marriage  portion  there  could 
hardly  be  any  question  as  to  the  incapacity  of  the  wife.  It  is  true  that  the 
^'elleianum  Decree  of  the  Senate  made  the  wife  incapable  of  binding  herself 
and  especially  on  behalf  of  her  husband,  but  this  disability  affected  the  wife  who 
was  given  her  paraphernalia,  and  not  the  wife  who  was  given  a  marriage 
portion,  who  could  not  bind  her  marriage  portion  even  on  her  own  behalf. 

803 


§  550]  SYSTEM   OF   PROPERTY    BETWEEN   SPOUSES         [Chap.  V 

the  Roman  law  in  the  twelfth  century,  and  no  doubt  practice 
willingly  based  itself  on  this  theory  with  the  object  of  procuring 
assured  and  indestructible  resources  for  families.  It  was  only  per- 
missible to  alienate  the  marriage  portion  in  exceptional  cases: 
(a)  With  the  permission  of  the  court,  for  example,  to  have  the  hus- 
band released  from  prison,  or  to  procure  nourishment  for  the  fam- 
ily. (6)  By  virtue  of  a  clause  in  the  contract  of  marriage,  which 
either  did  or  did  not  forbid  reinvestment.^  Outside  of  these  two 
cases  alienation  was  absolutely  void  at  law  unless  there  were  "  let- 
ters of  rescission."  During  the  marriage  the  wife  could  not  avail 
herself  of  this  nullity  because  of  the  rights  of  her  husband  over 
the  marriage  portion;  but  as  soon  as  the  marriage  was  dissolved 
she  had  thirty  years  within  which  to  invoke  it.  As  to  the  hus- 
band, although  he  is  ordinarily  refused  the  right  of  repudiating 
his  own  act  by  evicting  the  grantee,  at  the  same  time  there 
is  a  tendency  to  grant  him  the  action  in  avoidance,  —  a  tendency 
which  tallies  with  the  recognition  of  the  ownership  of  the  wife. 

The  obligations  contracted  by  the  wife  during  the  marriage 
could  not  be  realized  from  the  lands  of  the  marriage  portion,^ 
even  when  the  marriage  had  come  to  an  end;  had  it  not  been  for 
this,  the  spouses  would  have  had  a  very  simple  means  of  evading 
the  rule  that  the  marriage  portion  was  inalienable.^  Moreover, 
on  this  point  it  is  necessary  to  take  into  account  the  Velleianum 
Senate  Decree;  we  know  that  it  forbade  women,  whether  married 
or  not,  to  become  bound  for  a  third  party.^  In  Justinian's  time  this 
prohibition  was  especially  applied  to  the  relations  between  spouses; 
for,  according  to  the  Authentic,  "Si  qua  mulier,"  outside  of  cases 
in  which  they  bound  themselves  for  their  husbands,  wives  were 
authorized  to  renounce  the  benefit  of  the  Senate  Decree;  as  a 
matter  of  fact,  renunciations  were  frequent.  The  wife,  who  was 
incapable  of  binding  herself  even  with  respect  to  her  parapher- 

Again  the  Velleianum  Decree  of  the  Senate  has  always  been  distinguished  from 
the  inalienability  of  the  marriage  portion.  The  Velleianum  is  renounced,  not 
the  inalienability:  Loiiet,  12,  3.  The  Edict  of  1606  abrogated  the  Velleianum 
without  affecting  the  inalienability:  Henrys,  I,  4,  q.  104.  The  Velleianum 
could  not  be  invoked  without  letters  of  rescission,  and  one  had  to  act  within 
ten  years,  whereas  the  inalienabihty  acted  "de  piano,"  and  one  had  thirty 
years  within  which  to  plead  it:  Despeisses,  2,  2,  1,  7;  Roussilhe,  I,  399.  One 
is  a  personal  statute,  the  other  a  real  statute:  Roussilhe,  I,  373;  Mongin, 
"R.  crit.,"  1886,  92;  "N.R.H.,"  1888,  343;  Ginow?/wac,  p.  143. 

1  The  wife  may  also  make  a  gift  of  her  possessions  included  within  the 
marriage  portion  in  order  to  establish  her  children. 

2  It  was  otherwise  with  regard  to  obligations  "ex  delicto." 
'  Du  Perier,  "Quest.,"  I,  3;  Roussilhe,  nos.  379  et  seq. 

*  "Toulouse,"  68,  69,  71,  74,  109,  110,  130  et  seq.     Italy:  cf.  Lattes,  p.  245. 

804 


Topic  3]  SYSTEMS   WITHOUT   COMMUNITY  [§  550 

nalia  in  the  interest  of  iier  husband,  was  all  the  more  incap- 
able with  respect  to  her  possessions  which  formed  a  part  of  the 
marriage  portion.  The  Edict  of  1606  repealed  the  Velleianum; 
but  it  did  not  succeed  in  preventing  its  being  applied  in  countries  of 
written  law;  and  only  had  the  force  of  law  in  those  countries  which 
were  included  within  the  jurisdiction  of  the  Parliament  of  Paris, 
and  even  in  them  it  was  not  of  very  much  use  in  the  numerous 
cases  where  all  the  possessions  of  the  wife  formed  a  part  of  the 
marriage  portion.  In  order  that  the  promises  which  she  made  for 
the  benefit  of  her  husband  should  be  of  some  value,  she  had  to  be 
allowed  to  bind  and  to  alienate  her  marriage  portion;  and  this  is 
what  was  done  in  the  interests  of  commerce  by  a  Declaration  of 
April,  1664.1 

The  movables  of  the  marriage  portion  consisted  of  money  or 
of  certain  specific  things.  In  the  first  case  it  often  gave  rise  to 
the  "investment  clause,"  which  was  inserted  in  the  contract  of 
marriage,  and  the  effect  of  which  was  to  substitute  a  marriage 
portion  in  real  property  for  the  one  consisting  of  money.^ 
The  specific  things  (movables  or  immovables)  which  had  been 
appraised  became  the  property  of  the  husband,  for  "appraisal 
is  equivalent  to  sale."  With  regard  to  the  specific  things  which 
had  not  been  appraised,  a  question  as  to  the  inalienability  of  the 
movables  of  the  marriage  portion  ^  was  raised,  —  a  question 
to  which  the  increase  of  wealth  in  movables  in  our  day  added 
considerable  interest.  As  a  general  thing,  the  husband  had  the 
right  to  dispose  of  corporeal  movables  and  choses  in  action  ■*  (al- 
though the  Parliament  of  Bordeaux  refused  to  give  him  this  right 
because  it  did  not  recognize  his  ownership  of  the  marriage  portion ; 
it  did  not  even  allow  alienation  by  both  spouses  acting  together).^ 
But  in  all  the  countries  of  written  law  (excepting  in  those  within 
the  jurisdiction  of  the  Parliament  of  Paris  since  the  Statute  of 
April,  1664),  it  was  accepted  that  the  wife  could  not  compromise 

1  Bretonnier,  "Quest.,"  see  "Dot"  (this  Declaration  was  passed  at  the 
request  of  the  General  Receiver  of  Lyons  who  wished  for  more  guarantees 
from  his  under  farmers  by  having  their  wives  bound);  Henrys,  4,  3,  8. 

2  Dig.,  23,  3,  54.  Cf.  27th  term  of  D'Aguesseau;  Roussilhe,  no.  184  et  seq.; 
Benech,  "Emploi  ct  Remploi  de  la  Dot,"  1847. 

'  An  analysis  of  the;  old  case-law:  Tessier,  "Quest,  s.  la  Dot,"  1852; 
Lescaeur,  "R.  crit.,"  1875,  380;  Wallon,  "Th5sc,"  1877. 

*  Roussilhe,  nos.  226,  233,  238,  257,  265,  266  (ed.  Sacnse);  Serres,  II,  8. 
Cf.  "Petrus,"  I,  34.  The  question  would  not  have  bo(>n  of  very  great  prac- 
tical interest,  had  the  maxim  "In  matters  of  movables  possession  is  equal 
to  title"  (at  least  with  regard  to  corporeal  movables)  been  applied. 

5  Lescoeur,  p.  391;  Wallon,  p.  195.  —  C/.  "F.  de  B6arn,"  "r.  de  marit.," 
15. 

805 


§  550]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

the  restitution  of  the  movables  of  her  marriage  portion  by  re- 
nouncing her  claim  against  her  husband,  or  the  mortgage  which 
guaranteed  the  latter,^  In  this  sense  the  movables  of  the  mar- 
riage portion  were  inalienable  as  far  as  the  woman  was  concerned.^ 
The  practitioners  of  the  Parliaments,  being  inspired  by  the  spirit 
of  the  Roman  laws,  had  extended  to  movables,  in  the  measure 
that  the  nature  of  these  possessions  allowed,  that  which  the  Roman 
laws  had  enacted  with  regard  to  the  lands  of  the  marriage  portion.^ 
The  mortgage  ^  which  guaranteed  the  restitution  of  the  mar- 
riage portion  ^  affected  all  the  husband's  possessions.^  It  dated 
back  to  the  marriage  contract,  assuming  the  latter  to  have  been 
notarial;  and,  if  not,  to  the  marriage  itself.^  The  result  of  this 
was  that  the  wife  was  preferred  to  the  creditors  of  the  husband 
as  far  as  the  restitution  of  her  marriage  portion  was  concerned, 
but  she  was  only  preferred  to  creditors  who  became  such  after  the 
marriage.    Within  the  jurisdiction  of  the  Parliament  of  Toulouse 

^  Roussilhe,  nos.  238,  303,  314;  Julien,  "Elem.,"  I,  4,  28;  Despeisses ,  III, 
29;  "Bord.,  A.  C,"  113.  Italy  (Lattes,  p.  244):  as  early  as  the  eleventh  cen- 
tury renunciation  of  her  mortgage  by  the  wife  when  the  husband  ahenates 
one  of  his  possessions;  she  declares  that  the  other  possessions  of  her  husband 
are  sufficient  to  assure  her  the  restoration  of  her  marriage  portion,  or  else  the 
husband  assigns  other  possessions  to  her  by  way  of  guarantee. 

2  The  Romanists  were  concerned  with  this  question  especially  with  regard 
to  the  L.  30,  "Cod.  Just.,"  "de  j.  dot,"  5,  12;  Justinian  declares  therein 
that  "naturali  jure"  the  movables  included  in  the  marriage  portion  belong 
to  the  wife,  but  "secundum  legum  subtilitatem "  they  belong  to  the  husband. 
Bartolus  in  his  "Lect.  s.  I'Auth.  'Sive  a  me,'"  which  is  taken  from  the  "Nov.," 
61,  and  inserted  at  the  end  of  c.  21,  "Cod.  Just.,"  "ad  Sen.  Veil.,"  IV,  29, 
maintains  that  the  "Nov.,"  61,  which  modifies  the  law  in  the  Code  and  the 
Digest,  prohibits  the  alienation  of  "res  dotales  quaj  servari  possunt."  Cf. 
also  on  the  L.  1,  Dig.,  "Sol.  matr.,"  no.  18,  and  on  the  "Cod.  Just.,"  5,  13,  1. 
On  these  texts  and  on  the  L.  30,  cf.  Cujas.  Domat,  1,  9,  1,  30.  Details  in 
Wallon,  p.  133;  "Dissens.  dom.,"  p.  202. 

3  D'Olivecrona,  III,  28;  Mallebay  de  la  Mothe,  "Quest.,"  B.,  no.  14. 

*  Borrowed  from  the  Roman  law.  In  the  "Cout.  de  Toulouse,"  118,  153 
{Casaveteri,  fo.  48),  it  is  presented  under  the  form  of  assignment  established 
over  the  husband's  possessions  by  the  consuls  or  the  magistrate:  "pro  nec- 
essariis"  (Art.  119),  "dotibus  et  dotalitiis";  "F.  de  Beam,"  ed.  Mazure, 
254,  271;  F.  of  1552,  "r.  de  mariti,"  6;_"Siete  Part.,"  4,  11,  17;  Lattes,  p.  241. 
Cf.  "The  Community."  As  only  the  immovables  were  affected  by  the  mort- 
gage, the  wife  was  granted  a  privilege  over  the  husband's  movables:  Breton- 
nier,  see  "Meubles";  Boucher  D'Argis,  "Gains  nupt.,"  XXIII.  Finally  the 
payment  of  the  marriage  portion  was  also  guaranteed  by  means  of  a  mortgage 
over  the  possessions  of  the  pledgor:  "Dissens.  dom.,"  Ill,  103,  401,  582. 

'  "Toulouse,"  116,  allowed  of  the  appointment  of  "fidejussores";  Casa- 
veteri, fo.  45,  v.;  D.  Vaissette,  V,  402  (in  1083). •  Same  custom  in  Spain.  Contra: 
"Cod.  Theod.,"  Ill,  15;  "Cod.  Just.,"  V,  20;  "Dissens.  dom.,"  p.  443. 

^  Even  those  held  in  trust  (by  virtue  of  a  secondary  title);  "Ord."  of  1747, 
52-53. 

^  A  compulsory  or  a  voluntary  decree  clears  the  mortgage  on  the  marriage 
portion,  if  there  be  no  opposition  offered  to  the  distraint,  at  least  before  the 
Edict  of  1771.     On  the  subject  of  this  Edict,  cf.  Roussilhe,  no.  312. 

806 


Topic  3]  SYSTEMS  WITHOUT   COMMUNITY  [§  550 

an  enactment  of  Justinian's,  the  celebrated  law  "Assiduis,"  was 
followed,  which  preferred  the  woman  to  the  mortgage  creditors 
previous  to  the  marriage,^"  but  with  one  alteration:  the  latter  were 
allowed  to  bar  out  the  priority  of  the  wife  if  they  warned  her 
of  the  existence  of  their  rights  before  the  marriage  was  celebrated 
("giving  of  notice").^ 

Separate  Estate.  —  The  wife  could  ask  (post,  §  565)  for  an  antici- 
pated restoration  of  her  marriage  portion  if  her  husband  became 
insolvent  ("vergit  ad  inopiam").^  By  virtue  of  a  judicial  decree, 
she  took  back  the  administration  and  the  enjoyment  of  her  posses- 
sions which  had  gone  into  the  marriage  portion,  but  she  was  com- 
pelled to  invest  the  movables,'*  the  preservation  of  which  was 
no  longer  guaranteed  by  a  mortgage  over  the  husband's  pos- 
sessions. The  marriage  portion  land  remained  inalienable,  and 
the  woman  had  no  capacity  to  bind  herself  with  respect  to  her 
marriage  portion.  As  she  recovered  her  right  to  bring  actions, 
every  prescription  thenceforth  began  to  run  against  her.^ 

The  matrimonial  system  which  we  have  just  outlined  was  com- 
pleted by  the  rights  of  survivorship,^  rights  of  inheritance,  and 
gifts  between  spouses,  which  have  been  discussed  above. 

The  comparison  between  the  system  of  marriage  portion  of  the 
South  and  the  community  of  the  Countries  of  Customs  has  long 
been  a  classic  point.^    Pasquier  already  said,  "Ask  those  who  are 

1  L.  12,  "Cod.  Just.,"  "qui  pot.,"  VIII,  18  (p.  531).  Contra:  "Toulouse," 
109,  110,  111.  Priority  of  those  creditors  to  whom  both  of  the  spouses  are 
under  obhgation,  ib.,  71;  Lattes,  p.  242.  Difficulties  as  early  as  the  time  of 
the  commentators;  cf.  Azon,  "Summa  Cod.,"  ad  1.  "Qui  pot.";  Bartolus, 
on  1.     "Assid.";  Haenel,  "Dissens.  Dom.,"  pp.  104,  438,  582. 

2  Soultages,  "Cout.  de  TouL,"  I,  250;  Ferriere,  see  "Dot";  Argou,  III,  8; 
Serres,  IV,  4,  29;  cf.  "Bret.,  A.  C,"  410  (D'Argentres),  and  "N.  C,"  439. 

3  Dig.,  "sol.  matr.,"  24;  "Petrus,"  IV,  54  (prohibition  against  ahenating 
what  she  receives);  "Decis.  Cap.  Tolos.,"  339;  G.  Durand,  p.  467;  "Siete 
Part.,"  IV,  11,  29;  Lattes,  p.  244. 

^  Julien,  "E16m.,"  I,  4,  36  et  seq.;  Lavigucrie,  "Arrets  inedits,"  I,  254. 

^  Roussilhe,  nos.  433,  491  et  seq.  (she  needs  no  authorization),  497;  Breton- 
nier,  see  "Dot."     Cf.  Viollet,  p.  804. 

"  Right  of  the  survivor  or  reciprocal  gift  which  the  future  spouses  make 
and  which  shall  go  to  the  survivor  of  them,  especially  in  countries  where  there 
is  neither  increase  nor  counter-increase:  Roussilhe,  no.  597;  "Siete  Part.," 
IV,  11,  23  e<  seq.;  "F.  de  B6arn,  r.  de  marit.,"  10;  Ginoulhiac,  p.  147:  the  hus- 
band who  survives  receives  the  marriage  portion  at  Toulouse,  Bordeaux, 
Agen  and  Montpellier.  As  to  the  increase  see:  Ginoulhiac,  pp.  97,  129,  149; 
Brandileone,  "Stud.  prel.  s.  svolg.  d.  rapporti  patrim.  fra  conjugi  in  Italia," 
1901  ("Arch.  Giur."). 

'  There  is  a  complete  literature  on  this  subject:  Dramard,  "Bibl.  du  Code 
Civil,"  p.  215;  Troplong,  "Contr.  de  mar.,"  Preface,  1851;  Sacasc,  Preface 
to  liis  edition  of  Roussilhe,  "Dot,"  1856.  As  to  the  Revolutionary  drafts 
of  a  Code,  cf.  Sagnac,  pp.  295,  376 j  Locre,  "L(5gisl.  civ.,"  13,  27.  The  draft 
of  the  Civil  Code,  art.  138,  prohibited  even  the  stipulating  of  inalienability. 

807 


§  550]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

brought  up  in  countries  of  written  law,  and  they  will  tell  you  that 
separate  estate  is  beyond  comparison  better  than  community, 
while  those  of  countries  of  Customs  will  give  their  decision  in 
favor  of  community  of  possessions,  —  so  great  is  the  tyranny  which 
a  long  and  ancient  custom  has  over  us."  Each  one  of  these  sys- 
tems has  its  advantages  and  its  disadvantages;  they  correspond 
to  different  situations.  This  accounts  for  their  being  preserved 
in  our  Code.  P.  Gide  brings  out  in  excellent  terms  the  merits  of 
the  system  of  the  marriage  portion,  "If  it  be  true  that  for  the 
good  government  of  a  household,  as  for  that  of  the  State,  it  is 
necessary  to  combine  in  a  fair  proportion  the  principle  of  conser- 
vation and  the  principle  of  progress,  never  was  this  combination  in 
domestic  order  more  happily  realized  than  by  the  marriage  portion 
system.  This  system  forms  into  two  parts  the  fortune  of  the 
household ;  one  immovable,  unchangeable,  should  constitute  for  the 
family  a  reserve  fund;  this  is  the  marriage  portion  of  the  wife. 
The  other,  left  to  the  free  disposal  of  the  head  of  the  house,  may 
be  transformed,  may  increase,  and  may  serve  to  sustain  com- 
merce and  industry;  this  is  the  husband's  fortune."  It  is  not  for- 
bidden to  do  this  under  the  community  system,  but  everything 
then  depends  upon  the  prudence  and  the  good  will  of  the  spouses. 
By  adopting  the  marriage  portion  system  they  tie  their  hands  be- 
forehand; they  take  precautions  against  themselves,  against  their 
imprudence  or  their  inexperience;  and  in  many  cases  this  is  more 
sure.  It  is  true  that  by  exonerating  the  fortune  of  the  wife  from 
every  risk  of  loss  she  is  prevented  from  having  any  benefit  from 
it,  but  this  result  can  be  avoided  by  a  stipulation  for  a  partnership 
in  acquests. 

One  could  also  make  the  marriage  portion  system  more  flexible 
by  always  allowing  the  alienation  of  the  marriage  portion  funds, 
subject  to  reinvestment  in  immovables,  government  securities 
or  other  good  securities  (this  is  what  parties  did  formerly  in  the 
clauses  of  their  marriage  contracts),  or  even  without  reinvestment 
with  the  authorization  of  a  court  (this  is  something  which  was 

The  decline  of  the  marriage  portion  system  in  France  seems  to  be  attested 
by  recent  statistics  (1899,  1900):  Planiol,  "Tr.  de  Dr.  civil,"  III,  234;  J. 
Bressolles,  "Des  reg.  matrim.  actuellement  pratiques  dans  le  pays  toulousain," 
1880.  According  to  practitioners,  its  abandonment  is  especially  due  to  the 
impediments  which  it  places  in  the  way  of  the  most  useful  sort  of  acts  and  also 
to  the  injury  wliich  it  thereby  causes  the  spouses;  it  gives  an  opportunity  for 
fraud;  and  finally  by  adopting  the  community,  one  saves  the  expenses  of  the 
drawing  of  a  marriage  contract:  Hoinherg,  "Abus  du  rdgime  dotal,"  1849; 
GUc,  p.  489. 

808 


Topic  3]  SYSTEMS   WITHOUT   COMMUNITY  [§  551 

only  permitted  as  an  exception).  Thus,  this  would  be  like  a  com- 
munity system  under  which  the  marriage  portion  is  alienable, 
but  under  which  its  restitution  is  assured  by  a  system  of  reinvest- 
ments and  compensations.  Or,  again,  it  would  be  like  the  absolute 
system  of  community,  which  is  only  a  marriage  portion  system 
with  all  the  possessions  in  the  marriage  portion,  but  not  includ- 
ing inalienability,  just  as  separate  estate  is  a  marriage  portion 
system  with  all  the  paraphernalia  of  the  wife's  property. 

§  551.  The  Partnership  of  Acquests  is  combined  with  the 
Roman  marriage  portion  system  in  the  Bordelais,^  at  Bayonne,  in 
the  Labourt,  the  Soule,^  in  Navarre  ^  and  Spain. ^  In  the  Spanish 
region  it  is  connected  with  the  Visigothic  laws,^  and  perhaps  these 
laws  have  left  traces  of  it  in  the  Southwest  of  France.^     At  all 

1  On  the  "Cout.  de  Bordeaux,"  cf.  Commentaries:  Ferron,  1540;  De  Lurbe, 
1612,  1701;  Automne,  1621,  1737;  Dupin,  1746;  La  Moihe,  1768  (see  Camus' 
no.  1205);  Salviat,  "Jurispr.  du  Pari,  de  B.,"  1787;  Tessier,  "Soc.  d'acq.,', 
ed.  Deloynes,  1880;  "Acad.  leg.  Toulouse,"  VII,  521;  IX,  53S.  ~  Glasson, 
VII,  390. 

2  Sixteenth  century:  "Bayonne,"  9,  24;  "Labourt,"  9,  1;  "Sole,"  24,  1 
(acquests  and  shares  contributed  by  the  spouses);  "F.  de  Beam,"  255  et  seq. 
(ed.  Mature,  p.  99):  the  wife  has  no  right  to  acquests  (a  thing  which  would 
perhaps  not  have  been  established  if  the  tribunal  had  not  been  opposed  upon 
this  point  to  the  previously  existing  law). 

3  Desdevises  du  Dezert,  "R.  des  Pyrenees,  1890,  804  ("conquistas,  bienes 
de  ganancia");  "F.  de  Navarre,"  r.  25  (the  survivor  of  those  who  marry 
"solt  a  solte"  takes  all  the  possessions  of  the  predeceased,  unless  there  be 
children). 

^  From  the  "Fueros  Juzgo"  the  partnership  of  acquests  must  have  passed 
into  the  local  "fueros,"  for  example  it  is  to  be  found  in  the  "  Fueros  de  Cuenca" 
at  the  end  of  the  twelfth  century  (Antequara,  p.  157),  having  this  peculi- 
arity that  partition  of  acquests  takes  place  by  halves,  whatever  may  have 
been  the  share  contributed  by  either  spouse.  It  is  the  same  in  the  "Fueros 
Real,"  III,  3  ("de  las  ganancias").  Omitted  from  the  "S.  Partidas,"  the 
partnership  of  acquests  once  more  makes  its  appearance  in  the  Laws  of  Toro 
and  thence  passes  into  the  laws  which  follow:  Lehr,  "El.  de  Dr.  Esp.,"  I, 
120.  —  In  Portugal,  there  has  existed  a  universal  community  between  the 
spouses  since  the  twelfth  century  (at  least  among  the  lower  classes):  "R.  h. 
Dr.,"  1858,  p.  132.  Similarly  in  Biscaya  there  exists  the  "Hermandad"  be- 
tween spouses. —  Sardinia:  "Carta  de  Logu,"  162. 

*  Peculiarities  in  the  "Fueros  Real"  which  bear  witness  to  the  Visigothic 
origin  of  the  partnership  of  acquests:  profits  gained  in  an  expedition  carried 
out  at  the  king's  expense,  etc.  It  is  true  that  the  Code  of  Reccesvirul  divided 
the  acquests  in  the  proportion  of  the  share  contributed  by  each  spouse.  But 
the  change  which  has  taken  place  with  respect  to  this  point  may  be  accounted 
for  by  means  of  the  difficulty  of  proving  what  this  contributed  share  consisted 
of  and  the  need  of  simplification.  Cf.  Walter,  I,  495,  note  o,  on  "L.  Wisig.," 
4,  2,  11  (])artition  bv  halves).  The  Zeumer  edition  makes  no  mention  of  this 
passage;  cf.  "N.  Archiv.,"  XXVI,  107;  Dahn,  "Weatgot.  Stud.,"  127. 

^  One  might  also  be  led  to  believe  that  there  has  been  a  spontaneous  forma- 
tion of  the  partnership  of  acquests  in  the  Southwest  of  France,  beginning  with 
the  Prankish  law.  • —  At  any  rate  it  is  not  of  Roman  origin,  as  was  thought 
formerly;  for  the  Roman  laws  which  would  have  been  drawn  from  in  order 
to  form  a  typical  clause  (Dig.,  "pro  soc,"  17,  2,  7  et  seq.)  were  not  included 
within  the  lireviary  of  Alaric,  and  the  Justinian  law  was  not  yet  sufficiently 

809 


§  551]  SYSTEM    OF   PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

events,  its  existence  is  attested  at  Bordeaux  from  the  twelfth  cen- 
tury.^ In  1206  a  Privilege  of  John  Lackland  did  away  with  the 
right  of  the  widow  to  half  of  the  acquests,^  but  it  did  not  go  so  far 
as  to  forbid  this  half  being  granted  to  her  by  means  of  express 
stipulation.  The  partnership  of  acquests  then  became  a  system 
based  upon  agreement,  but  only  in  the  town  of  Bordeaux,  to  which 
the  Privilege  was  confined.^  Up  to  that  time  it  was  the  system  of 
the  common  law,^  and  it  did  not  cease  to  be  so  in  the  Bordelais, 
In  the  absence  of  agreement  ^  the  spouses  were  married  subject 
to  the  partnership  of  acquests.  The  woman  had  no  paraphernalia 
and  was  subject  without  any  reservation  to  the  power  of  the 
husband,  which  formed  a  striking  contrast  to  the  Roman  system 
in  force  in  the  rest  of  the  South. ^  Once  the  Custom  had  been  im- 
paired by  the  Privilege  of  1206,  practice  widened  the  breach  and 
tended  to  make  the  Roman  law  prevail,  without  succeeding,  how- 
ever, in  abolishing  the  partnership  of  acquests.  Little  by  little, 
the  rule  established  for  the  town  came  to  be  applied  in  the  sur- 

well  known  in  the  Bordelais  in  the  twelfth  century  for  it  to  have  been  possible 
to  have  drawn  an  institution  of  such  importance  from  a  few  texts  scattered 
at  random  through  the  Digest.  Furthermore,  why  should  these  texts  have 
only  resulted  in  the  partnership  of  acquests  at  Bordeaux?  Finally,  let  us 
observe  that  the  Bordeaux  system  differs  very  greatly  in  other  respects  from 
the  Roman  system:  the  wife  has  no  paraphernalia  and  she  is  under  the  hus- 
band's power.  —  Lastly,  the  "Cout.  de  Bordeaux"  did  not  borrow  the  part- 
nership of  acquests  from  the  neighboring  countries  of  Customs,  for  only  the 
community  of  movables  and  acquests  was  recognized  in  them. 

1  "Arg.  Privil,"  of  1206:  "sicut  capere  consuevit." 

2  "A.  C,  Bord.,"  202.  With  what  object  was  this  privilege  asked  for? 
Must  it  be  accounted  for  by  the  influence  of  the  English  law  or  of  the  Roman 
law?  The  text  is  silent.  This  privilege  left  in  existence  the  right  to  the  ac- 
quests for  the  benefit  of  the  children  in  case  the  mother  died  first.  Later 
on  a  formal  stipulation  was  required  from  the  wife's  heirs  as  well  as  from  the 
wife  herself:  "Bord.,  A.  C,"  82  et  seq.,  108  et  seq.;  "N.  C,"  70  et  seq. 

2  The  same  restriction  applied  to  the  exclusion  of  the  daughter  who  was 
given  a  marriage  portion  from  the  succession  of  her  father:  "A.  C,"  76,  202. 

*  This  was  also  the  system  in  use  in  Bayonne,  Labourt,  Soule,  and  Navarre. 

^  Rights  of  the  survivor,  sum  which  the  surviving  spouse  takes  out  of  the 
possessions  of  the  deceased  spouse:  "A.  C,"  98,  104,  111,  113;  "N.  C,"  47. 
49.  Contractual  reservation  of  the  acquests  or  conferring  the  ownership  of 
all  the  acquests  upon  the  children  to  be  born  of  the  marriage,  the  surviving 
spouse  having  only  the  usufruct  of  them:  Tessier,  no.  302. 

^  Other  provisions  of  the  "Cout.  de  Bordeaux"  which  are  connected  with 
the  Customary  law:  (a)  Communities  between  brothers  or  cousins  who  are 
not  nobles:  "A.  C,"  13-18,  56-68,  74,  85-88,  96,  97,  111,  112,  143,  244,  245. 
—  (h)  Repurchase  by  person  of  the  same  lineage.  —  (c)  The  rule:  "Paterna 
paternis."  —  (d)  Reservation,  two-thirds  for  commoners,  one-third  for 
nobles.  —  (e)  Hereditary  seisin.  —  (/)  Right  of  primogeniture  (for  the  benefit 
of  the  sons  or  the  daughters) .  —  Together  with  these  rules  are  found  others 
of  Roman  origin:  the  paternal  power,  the  legal  share,  the  making  heirs  of 
girls  in  default  of  male  issue,  disinheritance,  etc.  —  The  "A.  C,"  makes  no 
mention,  as  the  "N.  C,"  does,  of  the  obligation  which  the  father  is  under  of 
giving  his  daughter  a  marriage  portion. 

810 


Topic  3]  SYSTEMS   WITHOUT   COMMUNITY  [§551 

rounding  country;  this  change  is  perceived  in  the  "Nouvelle 
Coutume"  of  1520;  the  marriage  portion  system  is  the  law  and 
the  partnership  of  acquests  only  exists  by  virtue  of  a  special  stip- 
ulation; ^  it  has  become  an  accessory  of  the  marriage  portion 
system.  At  the  same  time,  the  paraphernalia  possessions,^  which 
were  unknown  to  the  old  Custom,  became  distinct  from  the  pos- 
sessions which  formed  the  marriage  portion ;  ^  the  husband  had 
the  administration  of  them,^  just  as  he  had  that  of  the  partner- 
ship of  acquests;  but  the  wife,  who  was  subject  to  the  power  of  the 
husband  with  respect  to  these  possessions,  acquired  the  right  to 
dispose  of  them  without  authorization.  Thus  the  old  system  of 
Bordeaux  came  to  be  altered,  and  it  is  in  this  state  that  Article 
1581  of  the  Civil  Code  and  the  practice  of  the  Southwest  of  France 
preserved  it.^ 

1  "N.  C,"  26;  "Attest."  of  the  13th  of  July,  1715,  and  of  the  12th  of 
Feb.,  1746. 

2  That  is  to  say,  those  which  the  wife  acquires  after  the  marriage. 

3  "A.  C,"  61,  64,  66,  80,  85,  112. 

*  "N.  C,"  42.  In  the  written  law,  the  issues  of  the  paraphernaha  belong 
to  the  wife. 

'  "A.  C,"  114:  the  selling  of  the  wife's  inheritance  is  only  vahd  when 
carried  out  with  the  husband's  consent  and  if  he  has  possessions  out  of  which 
his  wife  will  be  able  to  recover  the  value  of  her  inheritance;  56,  103,  174. 
Cf.  "N.  C,"  53  and  {Lamothe)  II,  p.  128:  the  wife  can  alienate  it  by  herself, 
"salvo  jure  mariti." 


811 


§552] 


SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES         [Chap.  V 


Topic  4.     Systems  of  Community 


§  552.  Origin  of  the  Community  of 
Possessions  between  Spouses. 
Distinctive  Characteristics  of 
this  System. 

§  553.  Date  of  the  Community. 

§  554.  Causes  which  produced  the 
Community  and  directed  its 
Evolution. 

§  555.  Various  Forms  of  the  Commu- 
nity. —  (A)  General  Com- 
munity. 

§  556.  The  Same.  —  (B)  Partial  Com- 
munities. 

§  557.  Freedom  of  Matrimonial  Agree- 
ments. 

§  558.  What  the  Community  con- 
sists of.  —  (A)  Assets. 

§  559.  The  Same.  —  (B)  The  Lia- 
bilities. 

§  560.  Administration  of  the  Com- 
munity. 

§  561.  Part  played  by  the  Wife. 


§  562.  The  Wife's  Personal  Belong- 
ings. 

§  563.  The  Dissolution  of  the  Com- 
munity. 

§  564.  Continuation  after  Death. 

§  565.  The  Separate  Estate  (Judicial). 

§  566.  Right  of  the  Wife  to  choose 
between  Acceptance  and  Re- 
nunciation. 

§  567.  Transactions  Previous  to  Par- 
tition; Reinvestment  and 
Recompenses. 

§  568.  The  Same.  —  (A)  Recom- 
penses due  from  the  Com- 
munity. 

§  569.  The  Same.  —  (B)  Recompenses 
due  from  the  Spouses  to 
the  Community. 

§  570.  Partition.  —  (A)  Assets. 

§  571.  The  Same.  —  (B)  Liabilities. 

§  572.  The  Married  Woman's  Mort- 
gage. 


§  552.  Origin  of  the  Community  of  Possessions  between 
Spouses.  Distinctive  Characteristics  of  this  System.  —  The  sys- 
tem of  common  law  at  the  beginning  of  the  feudal  period  in 
countries  of  Customs  placed  the  possessions  of  the  wife  under  the 
administration  and  made  them  subject  to  the  enjoyment  of  the 
husband;  one  can  say  that  in  this  sense  they  were  all  part  of 
the  marriage  portion.  All  the  acquests  belonged  to  the  husband. 
The  wife,  who  was  strictly  subject  to  the  husband's  guardianship, 
only  had  a  right  of  survivorship  (dower,  etc.)  and  the  restoration 
of  the  share  brought  by  her  in  immovables,  when  the  marriage 
came  to  be  dissolved.  Under  this  system,  as  under  that  of  the 
community,  the  possessions  of  the  spouses  formed  but  one  mass, 
which  was  in  the  hands*  of  the  husband.  But  it  was  lacking  in  the 
two  essential  characteristics  by  which  the  community  system  is 
marked:  (a)  the  transmissibility  of  the  wife's  rights  to  her  heirs; 
by  which,  if  marriage  were  dissolved  by  her  dying  first,  her  heirs 
took  the  share  to  which  she  would  have  had  a  right  if  she  had 
survived ;  (6)  during  their  joint  life  the  spouses  are  looked  upon  as 
joint  owners,  or  as  partners  with  respect  to  losses  and  gains;^ 

*  To-day  there  is  much  discussion  as  to  the  juridical  nature  of  the  com- 
munity.    CJ.  especially  Stobbe,  IV,  215.     The  various  opinions  which  have 

812 


Topic  4]  SYSTEMS  OF  COMMUNITY  [§  552 

Had  legal  relations  been  governed  by  pure  logic,  the  husband 
would  have  fallen  to  the  rank  of  a  mere  manager  charged  with  the 
administration  of  the  common  possessions  in  the  interest  of  the 
family.  This  was  a  modest  position  which  the  husbands  of  other 
times  could  not  accept,  even  assuming  that  the  wives  would  have 
thought  of  imposing  it  upon  them,  for  this  would  have  been  to 
give  up  their  domestic  power.  So,  they  preserved  their  author- 
ity almost  in  its  entirety;  all  the  possessions  of  the  wife  were 
included  in  the  marriage  portion,  as  in  former  times,  and  were 
placed  in  the  hands  of  the  husband.  The  result  of  this  is  that 
the  transition  from  one  system  to  the  other  was  scarcely  per- 
ceptible; the  old  texts  are  not  very  precise;  what  an  embarrassing 
question  it  is  to  decide  whether  or  not  they  have  in  view  the  com- 
munity system!  Until  the  very  end  of  the  old  law  one  can  say, 
however  paradoxical  the  expression  may  seem,  that  the  system 
which  is  the  most  like  that  of  the  community  is  the  exclusive  sys- 
tem of  community;  this  is  so  true  that,  if  there  were  no  community, 
it  was  this  latter  system  that  the  spouses  were  considered  as  hav- 
ing adopted.  In  the  community,  it  is  said,  the  wife  gets  an  in- 
terest in  the  prosperity  of  the  household ;  this  is  correct,  but  she 
gets  not  a  very  much  larger  interest  in  the  community  where  she 
only  had  a  right  to  a  third  than  in  the  exclusive  system  of  com- 

been  formed  show  the  special  tendencies  of  certain  legal  systems  or  certain 
phases  of  the  evolution  of  this  system.  Our  old  authors  did  not,  so  to  speak, 
concern  themselves  with  the  question;  they  were  satisfied  with  defining  and 
regulating  the  relations  existing  between  the  spouses  without  seeking  to  find 
the  only  principle  upon  which  they  could  have  based  this  regulation.  For 
them  the  community  is  a  civil  partnersliip  "sui  generis,"  having  special  rules 
due  to  the  special  position  of  the  spouses.  —  Here  is  an  outline  of  the  prin- 
cipal systems  suggested:  1st.  "The  husband  is  the  only  owner"  of  the  com- 
munity possessions;  the  wife  only  has  a  right  to  arise  in  the  future  if  there 
remain  any  of  these  possessions  at  the  time  of  the  dissolution  of  the  marriage 
(community  "mortis  causa").  This  is  the  tendency  of  the  French  Customs. 
Furthermore,  the  husband  has  not  been  authorized  to  dispose  of  the  commu- 
nity by  last  will  and  testament.  2d.  There  exists  "joint  ownership  or  joint 
possession"  between  the  spouses;  but  neither  member  of  the  community  can 
claim  their  share  or  make  any  disposition  of  it;  the  husband's  debts  are  an 
encumbrance  upon  the  wife's  share  as  well  as  his  own,  etc.;  scarcely  any  of 
the  rules  of  Roman  joint  possession  are  applied.  3d.  The  community  con- 
stitutes a  "legal  person";  from  this  it  would  follow,  for  example,  that  after 
the  dissolution  of  the  community,  the  creditors  of  the  community  would  have 
a  right  to  the  community  possessions  before  the  creditors  of  the  spouses  indi- 
vidually; in  the  old  law  there  is  not  a  trace  of  these  ideas  to  be  found.  4th. 
There  would  exist  a  Germanic  joint  ownership,  "zu  gesammter  Hand"; 
this  not  very  precise  theory  would  assume  that  both  spouses  would  have  to 
act  "communi  manu";  but  as  this  is  only  true  in  exceptional  cases,  the  con- 
ception of  unity  of  hands  must  be  brought  in  ("Einhand"),  a  thing  which 
overthrows  the  principle.  Cf.  the  oft-cited  passage  from  Justus  Veracius, 
"Libellus  consuet.  princip.  Biimberg"  (1681),  1733,  p.  59. 

813 


§  552]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

munity  with  its  right  of  survivorship,  also  equal  to  one-third. 
The  transmission  to  her  heirs  of  her  rights  of  joint  ownership 
constituted  the  only  practical  difference  between  these  two 
cases. 

Thus,  at  its  very  origin  the  community  is  scarcely  to  be  dis- 
tinguished from -the  system  of  possessions  between  spouses  of  the 
barbarian  period.  But  an  evolution  due  entirely  to  decisions 
and  practice  ^  modified  its  early  characteristics  by  increasing  the 
number  of  guaranties  and  privileges  in  the  interests  of  the  wife, 
which  served  as  a  counter-weight  to  the  very  extensive  powers 

1  The  evolution  of  the  community  system  is,  as  we  see  it,  characterized 
by  the  affirmation  and  the  more  and  more  energetic  protection  of  the  rights 
of  the  wife.  There  are  many  who  interpret  it  differently.  There  are  those 
who  maintain  that  the  wife  was  at  first  almost  the  equal  of  her  husband  (in 
the  thirteenth  century  she  validly  binds  herseK  for  the  time  follomng  the  dis- 
solution of  the  marriage,  she  takes  the  place  of  her  husband  when  he  is  under 
a  disabiUty  or  absent):  Cheron  "These,"  p.  17;  Gautier,  "Chevalerie,"  p.  358; 
Gide,  470;  Lecoy  de  la  Marche,  "La  chaire  Fr.  au  moyen  ige,"  p.  400. 
Cf.  Viollet,  "Et.  de  St.  Louis,"  I,  p.  147;  GlassoJi,  VII,  267.  In  the  sixteenth 
centm-y  under  the  sway  of  Roman  ideas  she  must  have  been  deprived  of  this 
rank,  she  must  have  been  placed  under  a  disabiUty  and  under  guardianship. 
The  community  must  have  lost  its  original  character  of  a  partnership  between 
equals;  the  powers  of  the  husband  must  have  grown  out  of  all  proportion 
when  the  wife  was  placed  under  a  disability ;  and  yet  at  the  same  time  nothing 
could  be  more  inaccurate  than  tliis  pretended  weakness  and  inexperience  of 
the  sex,  because  both  unmarried  women  and  -nadows  were  under  no  disabiUty. 
The  community  came  to  be,  in  the  eighteenth  century,  a  partnership  in  nothing 
but  name,  a  thing  which  could  be  compared  to  a  scale  gone  crazy,  which,  tipping 
now  to  the  right,  now  to  the  left,  never  attains  equilibrium;  a  Umping  insti- 
tution of  which  it  could  rightly  be  said:  "It  is  the  wife  which  the  community 
oppresses  so  long  as  it  exists,  and  the  husband  when  it  is  dissolved."  Fenet, 
XIII,  p.  707  (Duvergier's  report);  Cheron,  "These,"  p.  58.  There  would  be 
an  inconsistency,  according  to  these  ideas,  between  the  disability  of  the 
wife  and  the  partnership  of  possessions.  The  formula  of  Pothier  (unformed 
law)  is  taken  laterally,  and  it  is  contrasted  with  the  old  law,  according  to  which 
the  wife  who  was  not  under  a  disability  was  a  true  partner,  although  she  was 
subordinated  to  her  husband.  It  has  been  reiterated  "ad  nauseam,"  that 
if  the  married  woman  is  under  a  disability,  it  is  not  because  she  is  inferior  to 
her  husband.  Nor  is  it  apparently  because  she  is  his  superior.  Had  she 
been  the  man's  equal,  she,  as  often  as  he,  would  have  been  the  head  of  the 
household.  But  custom  made  of  her  a  perpetual  minor.  Chassaneus  tells 
us  that,  in  his  day,  when  a  married  woman  passed  near  a  man  custom  re- 
quired that  she  cover  half  of  her  face  through  modesty.  How  can  we  be  as- 
tonished, being  given  this  characteristic  and  others  of  a  similar  nature,  that 
the  jurisconsults  had  to  concern  themselves  with  the  "fragiUtas  sexus,"  with 
the  lack  of  experience  of  women.  Unmarried  women  and  widows  were  not 
similarly  situated;  they  ran  the  risk  of  causing  injury  to  themselves,  and  that 
is  all;  married  women  ran  the  risk  of  causing  injury  to  their  families,  therefore 
greater  precautions  had  to  be  taken  against  them.  Where  many  see  nothing 
but  an  unfortunate  retrogression,  I  see  only  the  continuation  of  an  older 
state  of  affairs.  It  was  thought  that  it  would  be  best  to  place  the  wife  under 
a  disability,  to  compel  her  to  provide  herself  with  the  authority  of  her  hus- 
band for  every  act,  the  day  that  the  archaic  sj^stem  which  made  the  family 
patrimony  practically  inalienable,  disappeared.  Granting  this  point  of  de- 
parture and  the  Customs  of  former  times,  the  progress  of  our  old  law  can  far 
more  readily  be  understood.     "A.  C,  Bord.,"  66. 

814 


Topic  4]  SYSTEMS  OF  COMMUNITY  [§  553 

of  the  husband.^  Instead  of  establishing  a  mathematical  equality 
between  spouses,  which  would  have  resulted  in  the  strong  making 
use  of  the  weak,  they  were  placed  in  an  equal  position  by  an  in- 
genious combination  of  rights  which  varied  but  which  were  equiv- 
alent. It  is  because  originally  the  community  did  not  differ  very 
much  from  the  system  which  preceded  it  that  it  retained  the  in- 
stitutions of  dower  and  mutual  gift,  which  were  much  more  in 
harmony  with  the  system  abandoned.  Under  the  Civil  Code  ^ 
dower  has  disappeared ;  community,  which  was  formerly  restricted 
to  countries  of  Customs,  has  become  the  common  system  of  law 
in  the  whole  of  France.  Its  foundations  have  not  been  modified  ; 
the  husband  has  not  ceased  to  be  the  head;  but  he  is  no  longer 
looked  upon  as  anything  but  an  administrator  with  extensive 
powers.  It  would  no  longer  be  correct  to  say  that  he  is  the  master 
and  the  lord  of  the  community ;  he  can  no  longer  give  the  posses- 
sions belonging  to  the  community  "inter  vivos."  This  is  an  ad- 
vance; it  had,  however,  been  half  realized  by  the  old  law.  It  would 
be  difficult  to  go  very  much  further  in  this  direction  by  increasing 
the  rights  of  the  wife,  as  some  have  asked,  without  running  the 
risk  of  destroying  the  equilibrium  which  has  been  established  be- 
tween the  spouses  by  a  system  consisting  entirely  of  set-offs  and 
balances. 

§  553.  Date  of  the  Community.  —  It  is  true  that  in  its  early 
stages  the  community  was  not  a  very  important  thing;  ^  one  must 
wait  until  it  passes  unperceived  into  the  early  part  of  the  Cus- 
tomary period.     The  examination  of  documents  does  not  belie 

*  Separate  maintenance,  a  right  to  attack  alienations  made  in  fraud 
of  her  rights,  renunciation  of  the  community,  '  benefit  of  emolument, 
prerogatives  in  the  exercise  of  the  recaption,  the  implied  mortgage:  such  are 
the  weapons  given  the  wife  against  her  husband,  and  it  is  easy  to  see,  even 
from  this  mere  enumeration,  that  she  is  not  sacrificed.  The  husband  has 
absolute  power,  but  he  is  held  in  check  at  every  turn  by  the  feeling  of  liis 
responsibility. 

2  The  first  draft  of  the  Civil  Code  of  Cambac6r&s,  1793,  Art.  11  (Fenet,  I, 
20),  gave  both  spouses  an  equal  right  to  the  administration  of  their  possessions; 
the  wife  could  exercise  it  as  well  as  the  husband.  This  rule,  which  was  founded 
upon  the  idea  that  the  inequality  of  the  sexes  was  nothing  more  than  a  preju- 
dice, was  abandoned  by  Cambac^rcs  himself  in  his  third  draft,  that  of  the 
month  of  Messidor,  year  IV,  as  being  contrary  to  the  natural  order  of  things 
and  only  liable  to  give  rise  to  disputes:  Sagnac,  p.  294.  Cf.  preparatory 
work  on  the  Civil  Code. 

^  Cf.  as  to  the  German  texts,  Schroeder,  II,  2,  2;  II,  3,  390  et  seq.;  Stobbe, 
IV,  118  (uncertainty).  A  comparison  with  the  German  law  is  here,  as  in 
many  other  cases,  of  great  utility,  because  we  find  therein,  as  though  in  an 
archaeological  museum,  forms  which  have  disappeared  elsewhere,  rules  which 
were  used  in  periods  of  transition,  anomalies  and  exceptions  which  permit 
of  our  following  more  closely  the  progress  of  our  own  institutions. 

815 


§  553]  SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES        [Chap.  V 

this  conjecture.^  It  is  rarely  found  mentioned  in  the  twelfth 
century;  ^  the  charters  of  the  communes  of  the  North,  Uke  that 
of  Laon,  1128,  c.  13,  speak  of  a  community  of  acquests  between 
the  spouses.^  In  the  thirteenth  century  P.  de  Fontaines  does 
not  seem  to  make  any  allusion  to  it;  "Jostice,"^  the  "Et.  de 
St.  Louis,"  '"  the  Assizes  of  Jerusalem,^  and  the  Registers  of 
Parliament,'^  are  far  from  being  explicit.  Beaumanoir  is  very 
sparing  of  details;  he,  however,  affirms  in  a  categorical  manner 
the  existence  of  the  conjugal  community  and  presents  it  as  an 
immemorial  custom,  21,  2:  "Everyone  knows  that  a  community 
is  formed  by  marriage,  for  as  soon  as  the  marriage  is  performed 
the  property  of  one  and  the  other  becomes  common  by  virtue  of 
the  marriage.    My  views  are  that  the  man  is  a  guardian.  .  .  ."  ^ 

*  Among  the  Scandinavians,  about  the  twelfth  century:  D'Olivecrona, 
p.  31;  "Saga  de  Nial,"  Dareste's  translation,  p.  3. 

2  "Cart,  de  Cluny,"  in  937,  no.  476:  a  wife  gives  her  husband  her  half  of 
the  jointly  acquired  property.  "Fribourg  en  B.,"  1120,  Art.  15;  Giraud, 
"Essai,"  I,  123;  Ruber,  IV,  426. 

'  "Ord.,"  XI,  185  (no  community  of  movables:  return  of  the  money  to 
the  donor);  "Amiens,"  1190,  35:  one-half  of  the  acquests  to  the  survivor, 
the  other  half  to  the  children.  Cf.  Charters  of  Cerny,  Crespy,  Bruyeres, 
Sens,  etc.;  "Ord.,"  XI,  2.33,235,  259.  —  See  also  the  "Ord."  of  1219  (I,  38) 
as  to  Normandy  (Lauriere) :  if  the  wife  dies  before  her  husband  without  having 
had  any  children;  the  husband  gets  all  the  movables  and  acquests;  he  excludes 
the  wife's  heirs. 

*  P.  256.     Cf.  pp.  169,  170,  225,  231. 

8  "Et.  de  St.  Louis,"  I,  16,  17,  139,  140,  143;  Viollet,  "Et.,"  I,  132,  cites 
D'Espinay,  "Cartul.  angevins,"  p.  183  et  seq.;  "R.  h.  Dr.,"  VIII,  45;  Chevalier, 
"Cartul.  de  Noyers"  (1085),  p.  152;  "L.  de  Droiz,"  I,  p.  182. 

8  In  the  Assizes  of  the  High  Court,  the  wife  of  a  noble  has  only  dower, 
but  this  dower  includes  half  the  movables  and  immovables  which  are  left 
at  the  death  of  her  husband  (at  least  in  the  case  of  knights),  after  the  debts 
on  the  movables  have  been  paid  (ed.  B.,  Table,  see  "Douaire").  Besides 
her  dower  the  "Assises  de  la  Cour  des  Bourgeois"  give  the  widow  (or  her 
children)  the  absolute  ownership  of  one-half  the  jointly  acquired  property, 
c.  183,  187;  she  is  held  responsible  for  the  debts  of  her  husband,  without  there 
being  any  mention  of  a  possible  renunciation  by  means  of  which  she  can  escape 
this,  c.  191;  the  husband  should  also  pay  his  wife's  debts  contracted  before 
the  marriage,  or  even  during  the  marriage  if  they  were  for  the  needs  of  the 
household,  and  he  is  allowed  to  sell  his  wife's  personal  belongings  even  to  pay 
his  own  personal  debts,  assuming  that  his  own  personal  belongings  are  not 
sufficient,  c.  194.  According  to  c.  186,  "acquests  made  by  the  husband  before 
the  marriage"  belong,  if  he  dies  "intestate,"  to  his  wife,  for  "no  man  is  so 
rightly  the  heir  of  the  dead  as  his  wife"  (and  "Gen.,"  ii,  24,  is  cited). 

7  "Ohm,"  I,  5  (in  1255);  261  (in  1267);  565  (in  1265);  708:  community 
of  acquests;  II,  422,  474;  III,  862,  1179;  Boutaric,  "Actes  du  Pari.,"  II,  no. 
5049;  Ducoudray,  "Orig.  du  Pari.,"  p.  797. 

8  Beaumanoir,  21,  2;  13,  9,  21;  30,  99;  57,  1  et  seq.  According  to  Beau- 
manoir, the  community  established  by  the  Custom  existing  of  absolute  right 
between  the  spouses,  includes  all  their  movables  and  deprives  them  of  their 
inheritances;  all  their  debts  on  movables  fall  into  this  community.  Are 
the  immovables  acquired  during  the  marriage  jointly  owned?_  On  this  point 
Beaumanoir  is  not  very  precise.  To  read  him  without  having  any  precon- 
ceived idea,  it  would  seem  as  though  in  his  opinion  the  acquests  made  by 

816 


Topic  4]  SYSTEMS   OF  COMMUNITY  [§  554 

We  must  come  down  to  the  fifteenth  century  in  order  to  find  in 
•the  texts  a  detailed  regulation  of  this  institution.^ 

§  554.  Causes  which  produced  the  Community  and  directed 
its  Evolution.-  —  The  causes  which  made  the  wife  the  partner 
of  the  husband  are  of  an  economical  nature  rather  than 
of  a  moral  nature;  we  can  hardly  find  them  in  the  Christian 
sentiments  of  the  ^Middle  Ages.^    As  we  see  it,  the  community  is 

each  of  the  spouses  individually  belonged  to  them  individually  {cf.  Leroux 
de  Lincy,  "Hotel  de  Ville  de  Paris,"  127);  as  to  the  immovables  which  they 
acquire  together,  they  also  are  personal  belongings,  in  this  sense  that  the 
husband  has  no  right  to  dispose  by  himself  of  the  share  which  belongs  to  his 
wife,  but  only  of  the  jointly  possessed  personal  belongings  wliich  are  di\dded 
into  halves  at  the  dissolution  of  the  marriage  {cf.  21,  2;  30,  99).  The  husband 
is  necessarily  the  administrator  of  the  association,  the  guardian  of  his  wife, 
the  "sires"  of  his  wife's  possessions  as  well  as  of  his  own  personal  belongings. 
He  can  dispose  of  the  movables  at  his  pleasure  and  he  alone  can  bind  the 
community.  The  community  is  dissolved  at  the  death  of  one  of  the  spouses, 
but  not  when  there  is  a  judicial  separation;  at  the  most  the  husband  provides 
his  wdfe  vnih  an  allowance  for  her  support.  One-half  of  the  debts  are  to  be 
charged  to  the  wife,  but  she  can  free  herself  of  this  obligation  by  renouncing 
the  movables.  There  is  no  question  of  recompenses;  the  price  received  for 
personal  belongings  wliich  were  ahenated  went  into  the  community  just  as 
the  other  movables  did.  It  seems  that  the  community  comes  into  existence 
at  the  time  of  the  celebration  of  the  marriage  {cf.,  however,  21,  2,  and  21,  25). 
As  between  people  of  rank,  a  three-sided  association  is  formed  if  the  sur- 
viving spouse  enters  into  a  second  marriage,  consisting  of  this  surviving  spouse, 
the  new  spouse  and  the  children  of  the  first  marriage. 

1  Desmares,  XX,  124,  152,  247;  "B.Ch.,"  2d.  s.,  I,  p.  400,  Art.  8,  11;  "Gr. 
Cout.,"p.  321;  J.  Lecocq,  83;  "Gout.  Not.,"  19,  161,  176;  "A.  G.,  Anjou," 
ed.  B-B.,  II,  227;  IV,  261;  "Gout,  de  Lords,"  ed.  Tardif,  Art.  193;  Loysel, 
III,  385,  657;  "Paris,  A.  G.,"  110;  "N.  G.,"  220  et  seq.  {cf.  Ferriere,  bibl.); 
"Gonf.  des  Gout,  de  Guenois,"  fo.  549;  Moliere,  "Ec.  des  femmes,"  IV,  2.  —  In 
Burgundy  the  community  was  not  generally  adopted  until  1489;  cf.  "T.  A.  G.," 
"de  acq.,"  8  and  11  {Giraud,  "Essai,"  II,  286  et  seg).  — "Gout,  de  Verm.," 
10;  "L.  deDr.,"  I,  184. 

2  Cf.  Ginoulhiac,  Laboidnye,  D'Olivecrona,  etc.,  also  Tardif,  "Origines 
de  la  Comm.  de  biens  entre  (§poux,"  "These,"  18.50;  L.  Passy,  "These,"  1857; 
P.  de  Salvandy,  "Gains  de  survie,"  "These,"  1855. 

*  Christian  Origin.  The  Ghristian  guidance  given  the  family  in  the  Middle 
Ages  must  have  resulted  in  the  power  of  the  father  and  the  conjugal  community : 
Ltfebvre,  "Lee.  d'introd."  and  "La  Gout,  franc,  du  mar.,"  1901.  Cf.  Typaldo- 
Bassia,  p.  16.  —  If  Ghristian  feelings  had  created  the  community  .how  does 
it  happen  that  this  institution  was  unknown  to  the  Ghristians  of  very  early 
times?  One  has  difficulty  in  finding  among  the  writings  of  the  theologians 
and  the  canonists  a  few  scattered  texts  which  either  deal  fully  with,  or  touch 
lightly  on  the  community.  Cf.  in  Lefebvre,  II,  488,  the  letter  from  St.  Augus- 
tine to  Ecdicia,  "Ep.,"  282  of  the  "Pati.  lat."  of  Migne,  and  compare  it  with 
the  "Laudatio  Turiae,"  Gratian,  c.  27,  q.  2,  o.  17;  Dig.  X.,  4,  20,  2.  The  can- 
onists know  of  scarcely  anything  beyond  the  Roman  marriage  portion  system 
with  dower.  If  it  be  unconsciously  that  the  spirit  of  Ghristianity  has  given 
birth  to  the  community,  how  is  it  that  it  did  not  produce  this  same  effect  in 
Southern  Europe,  in  Normandy,  in  England  and  in  certain  portions  of  Germany? 
Why  did  not  this  spirit  make  the  absolute  community  prevail  everysvhere,  as 
must  logically  have  followed?  Why  in  the  French  Customary  community 
do  the  acquests  of  the  spouses  obtained  before  the  marriage  remain  their 
personal  belongings?  The  maxim  "Vir  et  mulier  hunt  una  caro"  serves,  in 
the  "Ass.  de  J6r.,"  "Gour  des  Bourg.,"  180,  as  a  justification  of  the  wife's 

817 


§  554]  SYSTEM   OF   PROPERTY   BETWEEN   SPOUSES        [Chap.  V 

to  be  accounted  for  in  the  same  way  as  the  rights  of  survivor- 
ship of  the  barbarian  period.^  The  share  contributed  by  the  wife, 
increased,  either  because  the  value  of  her  work  became  greater, 
or  especially  because  she  more  easily  had  access  to  the  paternal 
inheritance.^  She  was  finally  recognized  as  having  more  exten- 
sive rights  by  virtue  of  the  marriage.  The  old  constitution  of  the 
family  was  in  opposition  to  this,  but  we  have  seen  that  the  prin- 
ciple of  the  unity  of  inheritance  and  the  strength  of  the  power  of 
the  family  head  were  all  the  time  becoming  weaker.  Thus  it  was 
possible  either  to  keep  a  separate  estate  for  her,  as  in  England 
and  in  Germany,  or  to  consider  her  as  a  joint  owner  with  her  hus- 
band of  certain  possessions.^  This  last  system  was  preferred  in 
France  and  elsewhere,  for  the  very  simple  reason  that  it  was  the 
one  which  differed  the  least  from  the  previous  system,  while  at 
the  same  time  it  satisfied  new  needs.  ^    It  was,  as  we  have  observed, 

right  to  half  the  acquests,  and,  in  Bracton,  to  account  for  her  disability.  From 
Modestinus'  definition  of  marriage  (D.,  23,  2,  1:  "consortium  omnis  vitae"), 
must  one  infer  the  community? 

1  Germanic  Origin.  —  (A)  Either  one  is  to  derive  the  community  from  the 
old  customs  of  Germania  attested  by  Tacitus,  18  ("laborum  periculorumque 
sociam")  and  from  a  loftier  conception  of  marriage  than  that  which  could 
properly  have  been  held  by  the  Germanic  race  (c/.,  however,  Modestinus,  D., 

23,  2,  1).  We  have  disputed  this  opinion,  see  ante,  §  100.  Cf.,  however,  Beau- 
chet  in  Typaldo-Bassia,  IV:  this  idea  of  marriage  was  the  first  basis  for  the 
conjugal  community;  it  was  developed  under  the  influence  of  family  joint 
o^\Tiership  and  of  the  "mundium,"  which  placed  all  the  belongings  of  the  wife 
in  the  hands  of  her  husband,  thus  estabhshing  an  external  or  formal  com- 
munity from  whence  issued  the  true  community.  These  ideas,  which  were 
very  much  in  favor  in  the  time  of  Miitermaier,  etc.,  have  to-day  scarcely  any 
partisans  left  in  Germany.  —  (B)  Or  else  we  find  the  community  already  in 
existence  in  the  documents  of  the  barbarian  period,  and  its  formation  is  to  be 
accounted  for  by  means  of  economic  causes  pointed  out  above  (§  520)  or  by 
means  of  the  tendencies  of  the  times  towards  the  community.  Cf.  Schroeder, 
"R.  G.,"  723;  Ginoulhiac,  p.  285. 

2  If  the  family's  rights  of  succession  are  not  very  great,  as  is  the  case  in 
Normandv,  the  community  comes  to  nothing.  Cf.  Ficker,  §§  1052,  1111; 
Stobbe,  §  324. 

*  Other  systems  which  no  longer  need  even  be  discussed.  —  1st.  Roman 
Origin:  Laurikre,  "Gloss.,"  see  "Comm.";  Bouhier,  on  "Bourg.,"  I,  175. 
It  is  certain  that  the  spouses  could  contract  for  a  partnership  between  them- 
selves at  Rome  (and  even  in  Greece,  Xenophon,  "Econom.,"  VII,  12;  Beauchet, 
"Dr.  prive  de  la  R^publ.  Athen.,"  I,  244),  out  this  is  something  which  is 
very  exceptional:  Dig.,  34,  1,  16,  3;  "Laudatio  Turise";  Girard,  "Textes," 
p.  777  (each  spouse  takes  care  of  the  other's  possessions,  but  there  need  be 
no  community  for  this  to  be  so).     A  few  texts  are  still  cited:  D.,  23,  2,  1; 

24,  3.  17,  1;  25,  2,  1;  "Cod.  Just.,"  9,  32,  4;  Martial,  "Ep.,"  IV,  75;  Denys 
d'Haiic,  "Ant.  Rom.,"  II,  25;  "Colum.  r.  r.,"  12.  — Van  Wetter,  "Le  Dr. 
Rom.  et  le  Dr.  Celtique,"  "La  comm.  des  biens  entre  4poux,"  1898,  has  once 
more  just  taken  up  this  abandoned  opinion.  —  2d.  Celtic  Origin.  Pasquier, 
"Rech.,"  I,  398;  Grosley.  "Rech.,"  p.  8;  Pardessus,  "Ac.  Inscr.,"  X,  752. 

*  It  is  not  always  to  the  wife's  advantage.  The  wife  who  is  in  a  community 
runs  risks,  especially  if  one  admits  that  she  was  not  originally  authorized 
to  renounce  the  community. 

818 


Topic  4]  SYSTEMS   OF   COMMUNITY  [§  554 

a  scarcely  perceptible  transformation.^  A  few  favorable  circum- 
stances were  sufficient  to  produce  this  slight  variation.^  In  towns, 
where  family  possessions  are  rarely  met  with,  there  is  nothing  to 
offer  an  obstacle  to  its  adoption;  the  marriage  portion  of  the  wife 
consists  in  the  making  of  an  investment,  as  would  the  share  of  a 
partner;  the  benefits  resulting  from  commerce  and  industry,  or 
acquests  which  are  realized  because  of  them,  are  shared,  because 
the  woman,  owing  to  her  fortune  or  her  activity,  contributes  to 
their  production.^  Community  is  thus  the  matrimonial  system 
of  the  merchants.  In  the  country  the  land  does  not  belong  to  the 
peasant,  but  to  the  lord;  the  possessions  of  people  of  small  power 
are  reduced  to  movables,  which,  because  of  their  very  nature,  are 
hardly  to  be  distinguished  from  one  another;  they  were  declared 
to  be  common  to  the  two  spouses.  The  community  is  thus  the 
system  of  the  serfs  and  the  commoners.^  It  was  more  difficult  for 
it  to  obtain  a  hold  in  the  class  of  the  nobility;  the  share  brought 
by  the  wdfe  was  there,  in  fact,  ordinarily  very  small  (unless 
she  were  the  heiress  of  a  fief);  she  would  be  contented  with  her 
dower.  In  time  the  system  of  the  community,  however,  was  ex- 
tended to  the  nobility  themselves;  but  the  queen  of  France  never 
lived  in  a  community  of  possessions  with  the  king,  which  is  a  re- 
markable example  of  the  survival  of  the  early  sj^stem.^ 

The  opinion  which  sees  in  the  conjugal  community  a  variation 
of  those  secret  communities  ^  which  were  formed  among  people  of 

1  We  have  already  pointed  out  the  analogy  existing  between  the  rights  of 
the  sur\nvor,  rights  of  succession  and  the  community  rights  allowed  the 
married  woman;  the  change  from  one  to  the  other  of  these  rights  must  have 
taken  place  without  difficulty:  Stobbe,  §  122;  Heusler,  §  154. 

2  The  Scandinavian  law  shows  the  community  taking  the  place  of  a  still 
older  system  analogous  to  that  of  unity  of  possessions,  by  means  of  agreements; 
at  the  end  of  a  certain  time  of  long  or  of  short  duration,  for  example  tliree 
years,  the  wife  becomes  the  husband's  partner;  this  is  an  advantage  which  is 
granted  her  because  of  the  share  contributed  by  her,  when  the  marriage  has 
lasted  a  sufficiently  long  time  for  a  presumption  to  arise  that  there  will  be 
no  rupture.  Cf.  Amira,  163;  D'Olivecrona,  p.  94;  "Saga  de  Nial,"  Dareste's 
translation,  p.  3;  Lehr,  "Dr.  civ.  Russe,"  I,  p.  28:  in  spite  of  the  "Svod," 
wloich  leaves  to  the  wife  the  free  administration  of  her  personal  possessions, 
there  is  in  fact  a  real  community  between  the  spouses. 

8  D'Olivecrona,  p.  135  (laws  of  the  Swedish  towns).  In  the  Danish  towns 
there  is  an  absolute  community;  in  the  country  the  personal  belongings  are 
not  included  within  the  community.     Cf.  Stobbe,  IV,  119. 

*  In  Germany  the  community  also  appears  to  be  an  institution  of  urban 
law;  but  it  is  just  as  old  among  the  peasants;  its  formation  among  the 
rural  classes  is  to  be  accounted  for  bj^  means  of  the  influence  of  the  "Ganerb- 
schaften"  which  are  so  numerous  in  the  regions  where  it  was  adopted,  by  means 
of  the  improvement  in  the  wife's  position  in  the  family,  and  by  means  of 
the  decline  of  the  rights  of  the  family  over  lands. 

8  Loysel,  XXII,  111. 

8  "Conf.  de  Gudnois/'  p.  601;  "L.  d.  Dr.,"  I,  194. 

819 


§  554]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

power,  generally  brothers  or  relations  by  marriage,^  owing  to  the 
single  fact  of  their  life  in  common  during  a  year  and  a  day,^  is 
one  which  is  usually  accepted.^  It  would  have  been  surprising  if 
the  existence  of  this  partnership,  which  is  attested  from  the  time 
of  the  barbarian  period,^  had  not  facilitated  the  adoption  and  the 
extension  of  the  community  between  the  spouses.  But  there  are 
too  many  differences  between  these  two  institutions  for  one  of 
them  to  account  sufficiently  for  the  formation  of  the  other."    The 

1  "Gr.  Cout.,"  p.  371;  Guy  Coquille,  "Q.,"  125. 

2  These  communities  are  to  be  found  in  almost  the  whole  of  France :  Masse, 
"These,"  p.  383;  Glasson,  "N.  R.  H.,"  1891,  446;  Dunod,  "Tr.  de  la  main- 
morte,"  p.  87;  Ragueau,  see  "Chanteau";  G.  Coquille,  on  "Niv.";  Chassaneus, 
on  "Bourg.";  Chabrol,  on  "Auv.,"  189;  Lebrun,  "Tr.  des  comm.  ou  soc. 
tacites,"  at  the  end  of  his  "Tr.  de  la  comm.  entre  mari  et  femme";  Lattes, 
p.  267  (Lombardy:  community  between  brothers);  "A.  C^  Bord.,"  67,  etc, 
C/.  as  to  the  German  "Ganerbschaften,"  Heusler,  I,  230;  Gierke,  "Deutsch. 
Privatr.,"  I,  664. 

3  Laboulaye,  p.  333;  Masse,  "These,"  p.  383. 

4  Capitulary  of  818,  c.  6;  "Polypt.  d'Irmion,"  II,  p.  24,  ed.  Guerard. 

5  Beaumanoir  speaks  of  one  and  the  other  of  them  in  the  same  chapter, 
but  without  confusing  them.  Guy  Coquille,  in  his  "Institutes,"  and  Lebrun 
in  his  "Tr.  de  la  Comm.,"  also  compare  them.  Among  other  similarities, 
the  following  have  been  pointed  out:  1st.  The  conjugal  community  at  first 
only  began  at  the  end  of  a  year  and  a  day,  just  the  same  as  silent  partner- 
ships did.  2d.  Just  like  the  latter  (which  are  rare  among  nobles)  it  only  existed 
and  was  carried  on  among  commoners.  These  are  two  points  which  are 
very  much  discussed.  In  the  sixteenth  century,  the  number  of  Customs 
which  only  cause  the  community  to  begin  after  the  year  and  a  day  are  very 
limited  in  number;  in  the  later  texts  this  Custom  scarcely  makes  its  appear- 
ance. We  do  not  find  that  the  Customs  which  make  the  community  between 
spouses  commence  a  year  and  a  day  after  the  marriage  reject  silent  partner- 
ships; this  rule  is  one  of  the  newer  laws  and  has  exceptions:  Loysel,  378.  But 
let  us  observe  that  the  delay  of  a  year  and  a  day  in  the  formation  of  part- 
nerships between  relatives  or  strangers  was  only  required  in  the  absence  of 
an  agreement.  Cf.,  however,  "Gr.  Cout.,"  II,  40.  Thus  brothers  living 
in  a  state  of  joint  possession  after  the  death  of  their  father  became  community 
owners  of  possessions  immediately,  and  not  at  the  end  of  a  year  and  a  day. 
As  between  spouses,  there  would  always  have  been  an  agreement.  —  3d. 
In  the  sixteenth  century,  silent  partnerships,  like  the  conjugal  partnership 
in  France,  only  include  the  movables  and  acquests;  but  in  other  countries 
the  community  between  spouses  is  absolute;  if  we  assume  that  at  first  silent 
partnerships  were  absolute,  we  shall  no  longer  be  able  to  account  for  com- 
munities of  movables  and  acquests  or  of  acquests  alone,  between  spouses.  — 
4th,  the  enjoyment  of  the  community  possessions  belongs  to  each  one  of 
the  participants  or  to  each  of  the  spouses  in  proportion  to  their  needs  and 
not  to  the  shares  contributed  by  them  respectively.  —  With  these  resem- 
blances, which  as  we  see  amount  to  very  little,  let  us  contrast  their  important 
differences:  1st.  The  conjugal  community  is  nothing  more  than  a  special 
method  of  regulating  the  interests  of  the  spouses;  on  the  other  hand  silent  part- 
nerships between  relatives  have  their  origin  in  the  economic  and  social  con- 
ditions of  the  late  Middle  Ages.  —  2d.  Married  persons  who  became  members 
of  a  silent  partnership  only  counted  as  one  individual  (example,  the  com- 
munity of  the  Jault);  women,  like  minors,  only  had  a  right  to  their  support 
and  maintenance;  when  they  married  they  were  given  a  marriage  portion 
in  money  or  in  movables,  without  touching  the  community  lands;  far  from 
calling  for  the  community  between  spouses,  silent  partnerships  would  rather 

820 


Topic  4]  SYSTEMS  OF  COimUNITY  [§  554 

situation  of  married  people  and  that  of  relatives  or  strangers  who 
are  associated  together  is  entirely  different;  the  difference  in  sex, 
the  presence  of  children,  the  constitution  of  the  family,  carried 
with  them  differences  wdiich  were  inevitable.  Also,  provinces  such 
as  Normandy  are  found  where  secret  partnerships  existed  in  the 
old  times,  and  where  the  community  between  spouses  did  not 
succeed  in  taking  root. 

We  are  led  to  believe  that  the  community  was  more  frequent 
originally  among  the  commoners,  and  that  it  only  became  gen- 
erally accepted  among  the  nobility  later  on.  But  we  cannot  hide 
from  ourselves  the  fact  that  there  is  a  good  deal  of  uncertainty 
upon  this  point.^  There  was  no  absolute  obstacle  to  the  formation 
of  a  community  among  members  of  the  nobility,  at  least  one  re- 
stricted to  movables.  The  right  of  survivorship  of  the  Frankish 
period  existed  in  the  case  of  women  of  very  high  rank,  as  well  as 
women  who  were  free;  in  various  localities  it  became  trans- 
formed into  a  community  right.^  But  there  are  to  be  found  texts 
from  which  it  clearly  follows,  or  which  allow  one  to  assume,  that 
in  other  localities  the  wife  of  the  nobleman  had  no  community 
possessions,  and  that  she  was  satisfied  with  her  dower  and  her 
legal  reference-legacy  in  movables;^  this  is  because  the  old  tradi- 

have  excluded  it.  C/.,  however,  Viollet,  p.  796,  who  admits  of  the  opposite 
evolution  having  taken  place;  according  to  him  the  wife  originally  counted 
as  one  individual,  but  the  texts  wliich  he  cites  are  recent  ones:  "Orl.,"  213 
et  seq.;  "Auv.,"  14,  32  (and  Chabrol,  II,  399).  See  L.  Passy,  p.  35,  Norman 
text  of  1241.  —  3d.  The  "head  of  the  loaf,"  although  called  the  master  of  the 
community,  has  not  such  extensive  powers  as  the  husband.  —  4th.  The  separa- 
tion of  the  spouses,  in  the  time  of  Beaumanoir,  did  not  mean  the  dissolution 
of  the  community;  cf.  the  rule  "the  loaf  parts  the  villein."  —  5th.  The  com- 
munity between  spouses  is  divided  into  halves  between  the  spouse  and  the 
children;  in  silent  partnerships,  the  children  of  one  of  the  participants  do  not 
divide  his  share  among  them,  but  each  of  them  counts  as  one  more  membei-. 
—  6th.  At  the  death  of  one  of  the  participants,  without  issue,  his  fellow  as- 
sociates are  given  his  share  by  right  of  increase,  to  the  exclusion  of  liis  rela- 
tives and  the  lord;  the  share  of  the  spouse  who  has  died  without  issue  goes 
to  his  heirs,  although  they  are  not  members  of  the  community.  "Gr.  Cout.," 
p.  371,  protest  of  the  relations  by  marriage  (and  not  of  the  spouses). 

>  Laboulaye,  p.  287.     Cf.  Glasson,  VII,  359;  Schroeder,  "Giit.,"  2,  2,  177. 

2  Beaumanoir  and  the  "Livre  de  Josticc"  do  not  distinguish  between 
nobles  and  commoners;  the  "Olim  "  set  forth  the  right  of  the  widows  of  nobles 
to  the  jointly  acquired  property.  The  "Anc.  Cout.  d'Anjou,"  ed.  B-B., 
I,  48,  192,  .523,  speaks  of  the  community  between  spouses  without  specifying; 
but  cf.  IV,  261  (as  between  nobles  an  express  agreement  is  necessary); 
"Meaux,"  IX,  51. 

'  Contrast  between  nobles  and  commoners:  "Et.  de  St.  Louis,"  "Ass.de 
J^rus.,"  loc.  cit.  Cf.  also  P.  de  Fontaines,  15,  8;  "A.  C,  Champ.,"  XII;  "A.  C, 
d'Artois,"  XXXIV;  Loysel,  178:  "the  husband  is  the  guardian  of  his  wife"; 
now  the  guardianship  of  the  noble  spouse  who  survives  over  the  minor  chil- 
dren excludes  the  idea  of  any  community  between  them.  Beaumanoir, 
21,  9  (notice  that  Beaumanoir  docs  not  say  the  community  is  continued  among 

821 


§  554]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

tion  was  retained  in  this  matter,  as  happens  often  enough  in  the 
Lt-w  of  the  nobility,  the  social  anatomy  of  this  law  being  more 
archaic  than  that  of  plebeians;  it  is  also  because  the  exclusion 
from  inheritance,  to  which  all  women  were  formerly  subjected, 
lasted  especially  in  the  case  of  the  nobility.  Perhaps  this  pecul- 
iarity, better  than  any  other  explanation,  will  account  for  this 
remarkable  fact:  until  1580  the  renunciation  of  community  was 
only  allowed  in  Paris  to  the  woman  of  the  nobility;  in  doing  this 
she  acted  as  an  heiress  rather  than  as  a  partner. 

§  555.  Various  Forms  of  the  Community.^  —  (A)  General 
Community.  This  system,  which  is  opposed  to  the  principle  of 
the  preservation  of  property  in  the  family,  has,  nevertheless,  been 
very  widespread  in  Belgium,^  Holland,^  in  various  parts  of  Ger- 
many,^ in  Switzerland  '^  and  Denmark,^  and  even  in  Sicily  ^  and 
Portugal.^  It  is  only  met  with  in  France  as  an  exception  in  a  few 
of  the  northern  provinces.^    It  could  only  be  established  in  urban 

people  of  rank  and  not  among  gentlemen) .  —  The  legal  reference  legacy 
of  the  noble  spouse  is  an  anomaly  in  the  community  system.  —  Survivals: 
in  the  Sardinian  States,  the  Code  of  Charles-Fehx,  Art.  174,  still  excluded 
the  community  among  nobles.  Fertile,  III,  356,  cites  Italian  statutes  ex- 
cluding "bona  conditionata"  ("livello,"  fiefs)  from  the  community. 

1  The  "Ecloga"  (in  740),  Tit.  II,  introduces  into  the  Byzantine  law  the 
system  of  the  community  between  spouses;  if  there  are  children,  the  sur- 
viving spouse  keeps  all  the  possession  of  the  other,  and  the  community  con- 
tinues to  exist  sometimes  even  between  brothers.  Zachariae,  §  11.  As  to 
the  "hypobolum"  and  the  "theoretrum,"  a  sort  of  "Morgengabe,"  c/.  §  14,  etc. 

2  Britz,  pp.  838,  858;  Van  Wetter,  pp.  32,  41. 
.    3  Van  Wetter,  p.  41. 

*  D'Olivecrona,  p.  56;  Stobbe,  IV,  200.  In  many  places  the  absolute  com- 
munity only  came  into  existence  with  the  birth  of  children:  Ficker,  §  710 
et  seq. 

*  Wyss,  p.  119  et  seq.;  Huber,  IV,  424.  In  this  country,  moreover,  it  is 
only  with  difficulty  that  the  various  matrimonial  systems  can  be  reduced 
to  any  clearly  defined  types.     Cf.  Lardy,  op.  cit. 

*  D'Olivecrona,  p.  114;  in  the  country,  community  of  movables  and  acquests, 
in  the  towns  there  came  to  be  formed  little  by  little  an  absolute  community. 
Iceland,  p.  97  ("Gragas"):  the  spouses  had  a  right  to  establish  by  means  of 
an  agreement,  either  before  or  after  the  marriage,  a  community  affecting  all 
their  possessions  or  else  their  movables  alone,  provided  they  both  possessed 
a  fortune  which  was  about  equal;  they  had  the  power  of  modifying  or  of 
cancelling  this  agreement;  the  community  also  came  into  existence  by  law 
when  the  spouses  had  lived  together  three  years  and  the  witnesses  to  the 
betrothals  had  died,  and  when  the  spouses  had  nothing  when  they  married 
and  acquired  a  fortune  afterwards,  etc.  Norway,  p.  103.  Sweden,  p.  136 
(towns). 

^  In  Sicily,  according  to  Briinneck,  the  community  of  possessions  must 
have  been  introduced  by  the  Normans:  "Sicil.  Stadtr.,"  p.  xxxiv.  The 
absolute  community  is  there  preferred,  whereas  in  Sardinia  only  the  community 
of  acquests  was  known:  Fertile,  III,  353.  In  Istria,  marriage  "ut  frater  et 
soror,"  that  is  to  say  absolute  community:  Ciccaglione,  "Man.,"  I,  445  (cf. 
Byzantine  law). 

»  "Portug.  Mon.  hist..  Leges,"  I,  368. 

'  Viollet,  p.  775,  states  that  the  absolute  community  existed  at  Tournai, 

822 


Topic  4]  SYSTEMS   OF  COMMUNITY  [§  557 

surroundings,  where  the  rights  of  the  family  over  immovable  pos- 
sessions were  declining  rapidly,  and  in  rural  surroundings  where 
personal  belongings  were  unknown.  It  is  sometimes  difficult  to 
distinguish  this  type  of  community  from  a  certain  form  of  that 
system  which  does  not  make  use  of  community  but  exaggerates 
the  powers  of  the  husband  to  such  a  point  as  to  allow  him  to 
dispose  even  of  the  immovables  of  the  wife,  and  which  gives 
the  entire  inheritance  of  the  joint  estate  to  whichever  spouse 
survives,  excepting  that  it  makes  these  possessions  incapable  of 
being  disposed  of  by  the  latter  ("  Verfangenschaft").^ 

§  556.  The  Same.  —  (B)  Partial  Communities.  The  most  com- 
mon forms  are  the  community  of  acquests  -  and  the  community 
of  movables  and  acquests.  This  last  community^  became  the 
common  law  in  Customary  France  and  came  to  be  applied  in  a 
large  portion  of  Germany.  The  personal  belongings  or  possessions 
of  the  family  are  not  included  within  it,  but  the  movables  of  both 
spouses  are  included  in  it  and  are  mingled  just  as  in  secret  partner- 
ships. The  husband  is  free  to  dispose  of  them,  and  in  this  respect 
he  enjoys  the  same  prerogatives  as  he  did  under  the  matrimonial 
system  existing  previous  to  that  of  the  community;  property  ac- 
quired jointly  during  the  marriage  forms  a  part  of  the  community, 
which  is  perfectly  rational,  because  the  labor  or  the  fortune  of  the 
spouses  contributes  to  the  production  of  such  property;  if  acquests 
made  previous  to  the  marriage  remain  outside  of  this  commu- 
nity, it  is  because  they  would  be  classed  as  personal  belongings. 
—  Clauses  which  vary  greatly  in  practice  modified  the  Customary 
community;  thus  there  was  formed  little  by  little  a  community  by 
agreement,  which  was  an  adaptation  of  the  ordinary  system  to  the 
particular  circumstances  of  the  marriage. 

§  557.  Freedom  of  Matrimonial  Agreements.^  —  Originally,  the 
Customary  community  seems  to  have  been  imposed  upon  the  par- 
ties. The  authors  of  the  thirteenth  century  and  the  marriage 
contracts  of  that  time  never  speak  of  the  parties  adopting  a  mat- 

Boutaric,  I,  76;  at  Arras,  c/.  "Cout.  locales  d'Arras,"  1746,  p.  37;  at  Daours 
and  Bouthors,  "Cout.  loc.  d'Amiens,"  I,  308;  at  Neuf-Brisach  and  other 
places  in  Alsace,  D  Agon  de  Lacontrie,  "Anc.  Statutairc  d'Alsace,"  p.  140, 
etc.;  in  Auvergne,  in  the  fifteenth  century  according  to  Barbier,  "Viatorum 
juris"  ("R.  de  16g.,"  1873,  224);  Doneau,  "Comm.  jur.  civ.,"  13,  c.  16,  8. 

1  Cf.,  for  example,  "mainpl6vie"  at  Li^ge;  Heusler,  II,  203;  Briinner, 
"Grundz.,"  p.  107;  Britz,  838. 

2  In  Franche-Comt6  the  community  is  limited  to  the  movables  and  im- 
movables acquired  during  the  marriage:  Slohbe,  IV,  268;  Fickcr,  §  1194. 

3  Stnbbe,  IV,  270;  D'Olivecronn,  p.  57;  Huber,  IV,  432. 

<  Oilier,  "These,"  1902;  Stobbe,  IV,  136;  Heusler,  §  155  ("hilix"). 

823 


§  557J  SYSTEM    OF   PROPERTY    BETWEEN    SPOUSES         [Chap.  V 

rimonial  system;  it  follows  that  this  system  is  and  can  only  be  the 
community,  in  the  jurisdiction  of  the  Customs  which  admit  of  it; 
the  spouses  were  not  free  to  adopt  any  other.^  At  the  same  time, 
from  this  period  on,  one  finds  clauses  which  modify  the  formation 
of  the  community  or  even  its  dissolution.^  Little  by  little,  they 
become  more  numerous,^  and  in  the  sixteenth  century  they  ar^ 
frequent  enough  for  the  principle  of  the  freedom  of  matrimonial 
agreements  to  be  proclaimed.^  At  this  time  the  rejection  of  the 
community  is  even  tolerated.  This  freedom  is,  however,  not  un- 
limited; we  do  not  find  that  it  was  ever  lawful  to  establish  the  in- 
alienability of  the  marriage  portion.^    The  jurisconsults  were  then 

^  Beaumanoir  does  not  even  admit  legal  separate  maintenance:  "Gr. 
Gout.,"  p.  371;  Loysel,  111. 

^  Stipulations  for  personal  belongings:  "Amiens,"  about  1249,  Art.  70; 
between  1249  and  1292,  Art.  50,  use  of  the  funds  of  the  marriage  portion; 
Charter  of  St.  Louis  of  1269  (L.  Delisle,  "Mem.  s.  les  op^r.  financ.  des  Temp- 
liers,"  1889,  "Acad.  Inscr."):  deposit  of  a  portion  of  the  marriage  portion 
of  Blanche  D'.Artois  at  the  Temple  to  be  used  by  one  of  her  relations  chosen 
by  her,  for  the  purchase  of  land  or  rents;  these  acquests  will  be  personal 
belongings  in  spite  of  all  Customs  to  the  contrary;  the  remainder  of  the  mar- 
riage portion  handed  over  to  the  husband  to  dispose  of  as  he  may  see  fit,  shall 
be  restored  at  the  dissolution  of  the  marriage.  J.  Lecoq,  p.  83:  right  of  the 
wife  to  take  back  the  share  contributed  by  her,  if  it  has  not  been  used,  out  of 
the  community,  before  any  partition  takes  place,  and  if  not  then  out  of  the 
husband's  possessions.  Marriage  contracts  of  1292  and  1396,  Jamont, 
"These,"  252,  267.  Clause  of  unequal  shares,  "Olim,"  II,  74,  10.  Cf. 
general  formulae,  but  of  Uttle  probative  force,  of  P.  de  Fontaines,  15,  8,  and  the 
2d.  Charter  of  Amiens,  Art,  50;  "Ass.  de  Jer.,"  "  C.  des  Bourg.,"  103. 

^  J.  Lecoq,  83:  "  conventiones  in  contractu,  matrimonii  factse  sunt  tenendse 
quia  alias  forte  non  fuisset  matrimonium  factum."  In  support  of  this  are 
invoked  in  the  sixteenth  century,  Roman  texts  such  as  the  "1.  ahmenta,"  "qui 
societatem,"  D.,  "de  aUm.  et  cib."  (communities  of  possessions);  "Orleans," 
173;  "Berry,"  8,  8  (exclusion  from  the  community);  "Troyes,"  83.  At  this 
time  apphcations  of  this  rule  increased  in  every  direction.  Boerius,  on 
"Bourges,"  states  as  being  in  general  use  in  1508,  and  consequently  as  dating 
from  the  fifteenth  century,  the  clauses  of  Art.  144,  of  "free  and  clear";  Art.  161, 
of  the  retaking  of  the  share  contributed  free  and  clear  in  case  of  renunciation. 
The  "Const,  de  Vermandois,"  1448,  (no.  231),  take  into  account  the  reference 
legacy.  J.  Faber,  on  "Cod.  Just.,"  "ad  leg.,"  "de  fideicom.,"  Tit.  "de  trans- 
act."; on  the  "Inst.,"  fo.  14,  "de  nuptiis";  forfeiting  of  the  community.  Act 
of  1389,  "Docum.  de  la  Soc.  d'hist.  de  Fr.,"  1884,  208:  id.  Boerius,  on 
"Bourges,"  loc.  dt.;  Desmares,  129  id.  (provision  is  also  made  for  the  clause 
of  taking  back  the  contributed  share  free  and  clear  in  case  of  renunciation, 
for  it  is  said  that  the  wife  is  not  held  liable  for  the  debts,  if  she  only  takes 
back  her  contributed  share;  this  would  seem  to  us  to  assume  that  she  could 
pursue  some  other  course). 

*  In  the  sixteenth  century  clauses  in  the  marriage  contract  which  would 
not  be  allowed  elsewhere  are  validated:  pacts  on  succession,  gifts  of  future 
possessions,  clause  of  taking  back  the  contributed  share  free  and  clear  by 
means  of  which  a  member  is  not  affected  by  losses  and  profits:  "Orleans," 
202;  "Lorris,"  200;  "Montargis,"  8,  9;  "Berry,"  8,  7;  Britz,  826. 

^  The  following  are  prohibited:  1st.  Clauses  cutting  down  the  power  of 
the  husband  in  his  capacity  of  head  of  the  community;  thus  it  cannot  be 
agreed  that  the  mfe  shall  be  the  head  of  the  community,  or  that  the  husband 
must  have  had  the  authorization  of  his  wife  before  he  can  contract.  —  2d. 

824 


Topic  4]  SYSTEMS   OF   COMMUNITY  [§  557 

able  to  declare  that  the  Customary  community  was  not  formed 
"  vi  ipsius  consuetudinis,"  but  as  a  consequence  of  an  implied  agree- 
ment; from  this  there  arose  the  important  consequence  that  it  was 
a  personal  regulation  and  not  "in  rem."  ^  —  Among  the  wealthy 
classes  at  least,  the  drawing  up  of  a  marriage  contract  was  frequent.^ 
The  relatives  of  the  spouses  took  part,^  even  when  the  spouses  had 
come  of  age,  either  for  the  purpose  of  discussing  the  clauses,  or  to 
make  certain  gifts,  or  to  look  after  their  hereditary  rights.  If  the 
spouses  were  minors,  the  presence  of  their  relatives  seems  to  con- 
stitute a  sufficient  protection  of  their  interests.^  "Habilis  ad  nup- 
tias,  habilis  ad  pacta  nuptialia."  They  were  looked  upon  as  being 
capable  of  making  agreements  which  were  made  use  of  in  marriage 
contracts.^     Old  institutions  which  were  not  much  in  harmony 

Clauses  cutting  down  the  husband's  power,  for  example,  allowing  the  wife 
to  do  without  the  authorization  of  her  husband,  c/.,  however,  Separate  Main- 
tenance; some  of  the  Customs  allowed  a  general  authority  to  be  given  in  the 
contract  of  marriage  ("Artois,"  "Flandre,"  "Berry")  or  even  outside  of  the 
marriage  contract  ("La  Rochelle,"  23);  Pothier,  "Puiss.  dumari,"  67;  Valin, 
on  "La  Rochelle,"  23,  86;  Guyot,  see  "Autor.";  —  3d.  Clauses  by  wliich  the 
wife  lost  her  right  to  renounce  the  community  or  her  benefit  of  emolument ;  — 
4th.  Clauses  of  inalienability,  cf.,  however,  Bourd.  de  Richebourg,  III,  870. 
Stobbe,  IV,  205:  the  German  law  allows  the  husband  and  wife  to  reserve 
"Sondergiiter"  for  themselves.     Guenois,  "Conf.,"  584. 

1  Legal  system:  the  community  could  only  be  applied  to  immovables 
situated  witliin  the  jurisdiction  of  the  Custom  which  imposed  this  regulation; 
tacit  agreement  (Dumoulin):  it  affected  all  the  possessions  of  the  spouses 
no  matter  where  situated.  As  the  question  was  an  unsettled  one  it  was 
customary  in  Paris  expressly  to  stipulate  it:  Masuer,  t.  "de  dot.,"  4;  Pasquier, 
"Inst.,"  p.  367;  Pothier,  10;  "B.  Ch.,"  Ill,  57  (in  1322).  Contest  between 
the  Parhaments  of  Paris  and  of  Rouen:  Dumoulin,  "Cons.,"  39,  53.  Contra, 
D'Argente,  "Bret.,"  218,  "Gl.,"  6,  no.  33. 

-  " Instrumentum  dotale"  of  the  Roman  law,  "Libellus  dotis"  during  the 
Prankish  period,  afterwards  marriage  articles.  The  notarial  deed  is  gen- 
erally customary  because  of  its  practical  advantages,  of  the  importance  of 
this  contract  and  of  the  scarcity  of  deeds  under  private  seal.  "Arr.  Cons.," 
of  Dec.  13,  1635;  Decl.  of  1639;  "Arr.  Cons.,"  of  Dec.  13,  1698;  Decl. 
of  Dec.  11,  1703  (prevention  of  the  antedating  of  gifts  between  spouses). 
However  the  private  deed  was  in  use  in  Normandy,  and  in  this  province  in 
the  old  times  they  were  even  satisfied  with  a  parol  agreement  ("N.  C,"  386, 
387),  the  proof  of  which  was  obtained  from  the  marriage  record.  There 
are  other  provinces  where  the  private  deed  was  lawful:  Tessier,  "Soc. 
d' Acquets,"  p.  41;  Guyot,  see  "Contr.  de  mar.";  Britz,  p.  239  (Lombardy). 
In  G(;rinany  intervention  of  the  law  and  publication:  Stobbe,  IV,  136.  Forms 
of  marriage  contracts  in  Ferribre's  "Parfait  Notaire,"  and  other  works  of 
this  kind.  Jamont,  "Thdse";  National  Archives,  "cartons"  U,  1031-1033. 
Guyot,  loc.  cit.  —  Cf.  Ordinance  of  Moulins,  54. 

3  Tacitus,  "Germ.,"  18;  Beaumanoir,  34,  49;  "Bourg.,"  1459,  1570,  26; 
"Norm.,"  262.  Cf.,  however,  "Arr.  de  Rdgl."  of  the  17th  of  May,  1762; 
Pothier,  no.  16;  Guillemin,  "These,"  1885. 

*  Pothier,  306.     Cf.  lOZ.  —  Beaumaiwir,  34,  49;  Loysel,  106. 

6  Lebrun,  "Communautd,"  1,  5,  2:  the  minor  is  not  free  to  adopt  any 
clause  he  pleases;  for  example,  the  conversion  of  real  property  into  personal 
property  and  the  absolute  community  are  forbidden  him.  Cf.  the  Civil 
Code,  1398;  Pothier,  303. 

825 


§  557]  SYSTEM    OF   PROPERTY   BETWEEN   SPOUSES         [Cuap.  V 

with  the  principles  of  the  Roman  law,  such  as  covenants  upon 
future  succession,  were  upheld  in  these  deeds,  as  a  result,  it  was 
said,  of  the  freedom  of  matrimonial  agreements  and  the  favor 
which  was  due  to  marriage.  These  family  arrangements,  which 
were  veritable  treaties,  less  between  two  individuals  than  between 
two  sets  of  relatives,  constituted  the  charter  of  the  new  household; 
they  should  be  settled  before  the  marriage,  for  it  was  only  then 
that  the  freedom  of  the  contracting  parties  was  absolute,^  and, 
once  they  had  been  settled,  they  could  not  thereafter  be  changed  ^ 
("immutability  of  matrimonial  agreements").^  —  The  majority 
of  the  Customs  make  the  community  commence  from  the  time  of 
the  celebration  of  the  marriage,^  but  there  are  some  of  a  more  ar- 
chaic character  according  to  which  it  dates  only  from  the  going 
to  bed,^  like  the  right  of  dower,  or  at  the  expiration  of  a  year  and 
a  day,^  or,  finally,  from  the  time  of  the  birth  of  children.^ 

§  558.  What  the  Community  consists  of.  —  (A)  Assets.  The 
properties  in  the  community  are  the  movables,  present  and  future, 

^  Annulment  of  counter-letters:  Pothier,  nos.  13,  16;  Lauriere,  on  "Paris," 
258;  Loysel,  106;  Stobbe,  IV,  138.  —  Germanic  delivery  (betrothals);  "Or- 
leans," 202. 

2  In  countries  of  written  law  the  marriage  portion  may  be  increased  or 
settled,  but  not  diminished  during  the  marriage  (prohibition  of  restoring 
the  marriage  portion  in  advance  for  fear  the  wife  might  dissipate  it) :  Serves, 
"Inst.,"  p.  169;  Bouhier,  on  "Bourg.,"  p.  407.     Cf.  dower,  "Gr.  Gout.,  p.  321. 

3  Formerly  the  settlement  of  the  marriage  portion  or  of  dower  were  in- 
contestable ("L.  Rib.,"  37),  just  as  the  fixing  of  the  "pretium  emtionis" 
was:  P.  de  Fontaines,  15,  9;  Beaumanoir,  34,  49.  Afterwards  in  the  inde- 
feasibility  of  marriage  contracts  there  was  seen  an  assurance  of  peace  and 
concord,  a  means  of  securing  the  prohibition  of  gifts  between  spouses,  perhaps 
even  a  means  of  preventing  the  exposure  to  deception  of  third  persons  deal- 
ing with  the  spouses  on  the  strength  of  the  contract.  Abroad  this  prui- 
ciple  has  not  always  been  admitted.  Cf.  D'Olivecrona,  p.  97  et  seq.;  Britz, 
p.  829.  Even  in  France,  at  least  in  certain  provinces,  the  spouses  were  per- 
mitted to  return,  during  the  marriage,  to  the  common  law  system  which  they 
had  given  up  in  the  making  of  their  contract:  Viollet,  p.  814;  Stobbe,  IV,  214; 
Heusler,  II,  429:  it  was  not  generally  admitted  that  the  marriage  contract 
had  to  be  made  before  the  marriage. 

*  Desmares,  247;  Beaumanoir,  21,  2  (but  cf.  21,  25).  See  post,  the  maxim: 
"The  husband  lives  as  master  and  dies  as  a  partner."  TouUier's  doctrine, 
according  to  which  the  community  only  comes  into  existence  at  the  dissolu- 
tion of  the  marriage  (XII,  75). 

5  "Bourg.,"  21;  "Niv.,"  23,  2;  Stobbe,  IV,  120.  Viollet  cites  as  appl>ang 
to  Strasbourg,  Silberrad,  "De  acq.  conjug.  sec.  jus  Argent.,"  1771;  Pertile, 
III,  348;  Chaisemartin,  "Prov.,"  28.  Cf.  "Paris,  A.  C.,"  210,  and  "N.  C.," 
220. 

»  "Gr.  C.,"  II,  40,  p.  371;  "T.  A.  C.,  Bret,"  207;  "A.  C.,"  469,  586; 
"Chartres,"  57;  "Dreu.x,"  48;  "Lodunois,"  24,  1;  "Chateauneuf,"  66;  "An- 
jou,"  511;  "Maine,"  508;  "Tour.,  A.  C.,"  etc. 

^  "Gr.  Gout.,"  II,  40.  Bayonne  in  the  thirteenth  century.  Sicily,  for 
example  "Messina,"  1;  "Saga  de  Nial,"  Dareste's  translation,  p.  3.  —_  In  view 
of  these  rules  one  can  understand  clauses  establishing  the  community  for  a 
term  or  upon  some  condition:  Pothier,  no.  278;  Lebrun,  1,  3,  10. 

826 


Topic  4]  SYSTEMS   OF   COMMUNITY  f  §  558 

of  the  spouses,  the  revenues  of  personal  belongings/  and  the  jointly 
acquired  property  or  immovables  acquired  for  a  consideration 
during  the  marriage.^  —  It  is  readily  understood  that  the  movables 
acquired  for  a  consideration  during  the  marriage  come  under  the 
community.  It  is  less  easy  to  explain  why  it  is  the  same  with  re- 
gard to  movables  of  which  the  spouses  are  possessed  when  they 
marry,  or  which  come  to  them  by  inheritance;  if  they  were 
treated  in  the  same  way,  it  is  because  of  the  old  rule  which  gave 
the  husband  the  free  disposal  of  them;  when  this  old  principle  was 
lost  sight  of,  the  lack  of  an  inventory  at  the  time  of  the  marriage 
seemed  to  be  a  sufficient  reason  to  justify  the  solution  which  was 
admitted.  Moreover,  the  mingling  of  the  movables  of  the  spouses 
was  formerly  far  from  presenting  the  disadvantages  which  it  has 
to-day;  movable  belongings  were  not  very  highly  developed,  and 
those  of  high  value  had  been  classified  under  the  head  of  immov- 
ables (offices,  rent-charges). — The  property  acquired  jointly  is 
contrasted  with  community  personal  belongings  or  immovables 
which  are  not  common  property,  but  which  remain  the  personal 
property  of  each  one  of  the  spouses.  One  might  think  that  the 
personal  belongings  that  are  inherited  are  the  only  personal  be- 
longings subject  to  the  community,  as  both  of  the  spouses  reserve 
to  themselves  their  family  possessions  and  nothing  more;  but  this 
is  not  so;  all  the  movables  belonging  to  the  spouses  at  the  time 
of  the  marriage  were  placed  outside  of  the  community,  as  far  as 
inheritance  is  concerned,^  whether  they  were  personal  belongings 
or  acquests.  The  immovables  acquired  gratuitously  during  the 
marriage  were  also  ordinarily  personal  belongings  of  the  com- 
munity.    There  was  no  difficulty  in  this  with  respect  to  those 

^  Under  the  more  modern  law  one  can  say  that  these  issues  of  the  personal 
belongings  form  part  of  the  community  in  their  quality  of  issues  and  not 
in  the  quality  of  movables,  for  the  products  are  personal  belongings  although 
they  are  also  movables:  Pothier,  95,  204.  As  to  old  times  see  Benumanoir, 
21,  2.  The  early  rule  was  no  doubt  that  the  issues  were  acquired  by  being 
collected,  and  it  was  always  applied  to  natural  issues,  arrears  of  quit-rents, 
tithes,  produce  claimed  by  the  lord  and  the  price  of  farm  leases.  From  the 
Roman  legal  system  was  borrowed  the  idea  of  causing  the  civil  issues  to  be 
acquired,  such  as  arrears  of  rents,  day  by  day,  in  proportion  to  the  time  the 
marriage  lasted.  At  Frankfort  profits  realized  in  a  separate  trade  are  personal 
belongings,  but  advantages  accruing  from  industry  are  not;  Stobbe,  IV,  247. 
In  1859  Canada  gave  the  wife  an  absolute  right  to  her  profits  and  wages. 

2  Every  immovable  belonging  to  the  spouses  is  looked  upon  as  being  jointly 
acquired:  Loysel,  222.     Cf.  Pasquier,  "Inst.,"  p.  499. 

^  "Jointly  acquired  property  is  acquired  by  two,  acquests  are  acquired 
by  one."  As  a  general  thing  acquests  made  during  the  marriage  arc  treated 
like  jointly  acquired  property.  Cf.  "Poitou,"  229;  Marsal,  33,  38,  etc.; 
"  Sain t-Quen tin,"  I,  1. 

827 


§  558  J  SYSTEM    OF   PROPERTY    BETWEEN   SPOUSES         [Chap.  V 

which  were  inherited,  either  directly  or  collaterally,  and  which  it 
was  sought  to  keep  in  the  families  from  which  they  came.  But 
with  respect  to  gifts  there  was  some  hesitation.  According  to  the 
rule,  "There  is  no  acquest  so  fine  as  a  gift,"  they  should  be  jointly 
acquired  property.  The  theory  which  prevailed  saw  in  gifts  coming 
from  relatives,  especially  in  the  direct  line,  an  advancement  of 
heirship;  this  theory  classed  possessions  that  were  given  in  this 
way  with  those  that  were  acquired  through  inheritance.^  With  re- 
gard to  gifts  made  to  the  spouses  by  people  other  than  their  rela- 
tives, they  constituted  jointly  acquired  property,  unless  the  donor 
had  stipulated  otherwise,  —  a  thing  which  no  doubt  often  hap- 
pened. The  courts  completed  these  rules,  drawing  inspiration 
from  the  spirit  which  had  dictated  them,  by  means  of  theories  as  to 
accommodating  the  families,  —  renouncement  and  recompenses.^ 

Marriage  contracts  departed  from  the  regulation  which  we 
have  just  described,  sometimes  by  restricting  the  community, 
and  sometimes  by  enlarging  it.  The  merging  of  the  movables  of 
both  spouses  in  one  single  mass  was  prejudicial  to  the  one  who 
contributed  a  great  deal  and  advantageous  to  the  one  who  con- 
tributed little;  this  evil  was  remedied  by  no  longer  merging  the 
property:  1st.  Partially,  by  the  clause  of  conversion  into  money  ^ 
or  stipulation  as  to  personal  belongings,"*  which  likened  certain 

'  "Cout.  Not.,"  183.  In  the  collateral  line  it  is  jointly  acquired  prop- 
erty: "Paris,"  246;  Desmares,  26;  a  personal  belonging:  "Maine,"  507; 
"Anjou,"  513;  Loysel,  393,  657;  Pasquier,  "Inst.,"  p.  362;  Britz,  839. 

2  Exceptional  cases  in  which  immovables,  although  acquired  for  a  con- 
sideration during  the  marriage,  constitute  personal  belongings.  —  (a)  Re- 
purchase by  a  person  of  the  same  lineage:  "Orleans,"  382.  As  to  the 
redemption,  cf.  J.  Lecoq,  p.  84.  —  (6)  Real  subrogation:  see  "Exchange"  and 
"Reinvestment,"  Mi/ra.  —  (c)  As  to  the  acquiring  of  an  immovable  by  the 
husband,  of  wloich  Ins  wife  is  a  joint  owner  (Civil  Code,  1408,  2),  cf.  D.,  "de 
j.  dot.,"  23,  3,  78,  4;  Roussilhe,  "Dot,"  556  (an  acquisition  imposed  upon 
the  wife).  In  countries  of  Customs,  cf.  the  repurchase  of  joint  possession; 
controversy:  (1)  Compulsory  acquisition  for  the  wife,  Lebrun,  1,  5,  2,  3,  12; 
Ferriere,  on  "Paris,"  220,  3,  13;  Bourjon,  I,  537.  —  (2)  Option  for  the 
wife,  Valin,  on  "La  Rochelle,"  I,  493,  Art.  22,  1.  Cf.  Pothier,  no.  150.— 
Friendly  acquisition  resulted  in  the  property  being  considered  as  jointly 
acquired. 

^  Express  or  implied  conversion  into  money  (clause  of  investment,  clause 
of  contributed  share):  Pothier,  no.  325;  see  Denisart,  Ferriere,  Guyot.  As 
marriage  portions  were  more  often  than  not  in  movables,  the  conversion  into 
money  clause,  which  at  an  early  time  was  frequently  made  use  of,  became 
almost  a  typical  clause  during  the  later  stages  of  the  old  law.  The  invest- 
ment clause  which  was  made  use  of  in  the  tliirteenth  century  (see  post,  "Rec- 
ompense") lost  its  importance  from  the  time  when  the  mortgage  served  to 
guarantee  the  wife's  claims:  Renusson,  "Propres,"  VI,  7. 

^  The  husband  may  dispose  of  the  personal  belongings  held  to  be  such  by 
the  contract  (and  not  of  the  real  personal  belongings)  without  the  participa- 
tion of  his  wife,  unless  the  conversion  into  money  has  been  stipulated  for  as 

828 


Topic  4]  SYSTEMS   OF  COMMUNITY  [§  559 

movables  to  the  immovable  personal  belongings.  2d.  Absolutely, 
by  means  of  a  community  reduced  to  acquests.^  This  system, 
which  is  more  fitted  to  our  economic  state,  seems  to  have  been 
little  used  formerly.  Pothier  only  sees  in  it  a  variation  of  the  con- 
version into  money.  The  conversion  of  realty  into  personalty  -  and 
the  general  community  produced  the  opposite  effect  by  classing 
the  immovables  which  were  the  personal  belongings  of  the  spouses 
with  the  movables  which  belonged  to  the  community;  they  were 
clauses  which  were  used  when  one  of  the  spouses  had  only  mov- 
ables and  the  other  only  immovables. 

§  559.  The  Same.  —  (B)  The  liabilities  of  the  community  con- 
sisted of:  1st.  The  charges  of  the  marriage  (support  of  the  spouses, 
education  of  the  children),  whereas  under  the  marriage  portion 
system,  they  were  incumbent  upon  the  husband  alone.  2d.  The 
interest  and  arrears  of  personal  debts  and  the  disbursements  for 
support,  usufructuary  repairs  of  the  property  of  which  the  com- 
munity had  the  enjoyment.  3d.  The  debts  of  the  spouses  with 
respect  to  movable  property  contracted  previous  to  marriage.  4th. 
The  debts  of  inheritances  which  had  accrued  to  them  during  the 
marriage.  5th.  The  debts  contracted  during  this  time  by  the  hus- 
band or  by  the  wife  with  the  authority  of  the  husband.^  —  Debts 
previous  to  the  marriage  were  a  charge  on  the  community  by  virtue 
of  the  old  rule  according  to  which  debts  could  only  be  collected 

applying  to  everything,  —  a  clause  which  was  not  a  very  practical  one,  even 
during  the  last  stages  of  the  old  law,  and  which  could  not  have  been  allowed 
originally.  Cf.  "Olim,"  II,  151,  37;  Pothier,  no.  325;  Lebrun,  I,  5,  1,  3,  4. 
By  means  of  the  conversion  into  money  one  only  obtained  community  per- 
sonal belongings,  but  one  could  also  obtain  personal  belongings  appertaining 
to  the  succession:  Renusson,  "Propres,"  6. 

1  An  expression  rarely  made  use  of.  Cf.  partnership  of  acquests,  ante. 
A  conversion  into  money  and  a  separation  of  the  debts  of  the  spouses  take 
place  at  one  and  the  same  time. 

2  See  Ferrihre,  Guyot,  etc.     Pothier,  304;  Lebrun,  1,  5,  1,  2. 

3  Cf.  the  German  law,  which  is  in  great  confusion  on  this  subject.  As  a 
general  thing,  however,  one  can  contrast  the  personal  debts  with  the  com- 
munity debts.  Personal  debts  only  affect  the  inheritance  of  the  spouse 
who  is  liable  for  them;  his  share  in  the  community  cannot  be  reached  until 
after  the  marriage  has  been  dissolved.  These  debts  are  those  contracted 
previous  to  the  marriage,  debts  contrary  to  the  interests  of  the  community 
and  debts  contracted  in  the  personal  interest  of  one  of  the  spouses.  The 
community  does  not  have  to  pay  this  sort  of  debt;  still  less  is  the  spouse  who 
is  not  the  debtor  liable  for  them.  It  is  otherwise  with  the  community  debts, 
that  is  to  say  wath  the  expenses  of  the  marriage  or  debts  contracted  by  both 
spouses  or  by  one  of  them  in  the  interests  of  the  community;  the  creditors 
can  secure  payment  out  of  the  community  possessions,  and  if  these  are  not 
sufficient,  then  up  to  the  amount  of  one-half  of  the  debt  out  of  the  possessions 
of  each  of  the  spouses.  At  the  same  tin>e  the  wife  enjoys  a  privilege;  she 
can  escape  responsibility  for  the  community  debts  by  means  of  the  renuncia- 
tion: Stobbe,  IV,  279. 

829 


§  559]  SYSTEM   OF   PROPERTY   BETWEEN    SPOUSES         [Chap.  V 

out  of  movables.^  "Who  marries  the  body  marries  the  debts," 
says  Loysel,  110;  and  this  was  equally  true  with  regard  to  the 
system  where  there  was  no  community,  for  the  husband  then 
also  collected  the  whole  of  the  movables.^  Debts  chargeable  on 
immovable  property  and  charges  on  possessions  outside  of  the 
community  could  not  be  paid  by  it.  —  This  repartition  of  the 
liabilities  was  no  longer  justified  after  the  immovables  became 
liable  for  debts,  that  is  to  say,  after  the  end  of  the  thirteenth 
century  or  thereabouts.  It  persisted,  however;  the  disadvantages 
which  it  presented  when  one  of  the  spouses  had  more  debts  than 
the  other  were  remedied  by  means  of  the  clause  of  "  separation  of 
debts."  ^  —  Debts  of  inheritances  accruing  to  the  spouses  during 
the  marriage  were  originally  subjected  to  the  same  system.  Le- 
brun  still  maintained  that  the  community  ought  to  bear  the 
debts  chargeable  on  movables  because  it  collected  the  movable 
assets,  and  because  the  spouse  who  mherited  was  held  liable  to 
pay  the  debts  chargeable  on  immovables  for  the  reason  that  he 
kept  the  immovables.  As  far  as  inlieritance  was  concerned,  the 
charge  of  debts  ended  by  falling  upon  the  heir  of  the  personal  be- 
longings. The  rule  was  the  same  as  far  as  the  community  was 
concerned ;  the  system  of  the  repartition  of  the  liabilities  between 
the  community  and  the  spouses  in  proportion  to  the  assets  which 
they  received,  without  making  any  distinction  between  movables 
and  immovables,  also  prevailed,  thereby  conforming  to  equity 
and  the  Roman  rules.  Thus,  when  one  spouse  received  an  in- 
heritance including  movables  and  immovables  together,  if  the 
movables  were  worth  one-third  of  the  entire  inheritance,  one- 
third  of  the  debts  chargeable  to  movables  or  to  immovables 
was  charged  against  the  community:  "Where  the  assets  go  the 
liabilities  go."  * 

1  Beaumanoir,  43,  26;  Desmares,  181,  247;  "Cout.  Not.,"  15,  70,  83,  139, 
167;  "Gr.  Cout.,"  2, 32,  p.  322;  but  cf.  p.  223;  "L.  de  Dr.,"  400;  "A.  C,  Anjou," 
I,  482,  III,  332;  IV,  201,  ed.  B.-B.;  "Ass.  de  Jer.,"  "C.  des  B.,"  133;  "Paris," 
221;  Pothier,  no.  259. 

2  The  wife's  creditors  could  therefore  not  sue  her  for  her  personal  belong- 
ings, but  this  was  no  longer  the  case  when  immovables  became  the  creditor's 
pledge. 

3  "Paris,"  222;  Argou,  III,  7.  This  clause  could  be  pleaded  against  the 
wife's  creditors,  if  there  had  been  an  inventory.  As  to  the  "free  and  clear" 
clause,  by  means  of  wliich  the  relatives  of  the  man  about  to  be  married  certi- 
fied that  there  were  no  debts  and  allowed  a  compensation  for  the  wife  should 
there  be  any,  cf.  ante  §  557;  Argou,  III,  10;  Pothier,  nos.  351,  370.  As  to  the 
clause  which  allowed  the  wife  who  made  a  renunciation  to  take  back  the  share 
contributed  by  her,  free  and  clear,  cf.  Pertile  III,  335;  Stobbe,  IV,  279. 

4  Lebrun,  2,  3,  2;  Peronne,  198;  cf.  "Paris,"  334;  Pothier,  no.  261. 

830 


Topic  4]  SYSTEMS  OF  COMMUNITY  [§  559 

The  debts  of  the  spouses  contracted  during  the  marriage  came 
under  the  community,  like  acquests  which  they  made  during  that 
time.  It  was  necessary,  however,  that  they  should  be  contracted 
by  the  husband  or  with  his  authorization,  for  in  his  quality  of 
head  of  the  community  he  alone  had  the  right  to  bind  it.^  He 
even  binds  it  by  means  of  his  offenses,  "Tam  deliquendo  quam 
contrahendo."  ^  Originally,  if  his  possessions  were  confiscated 
the  community  was  also  confiscated,  and  the  wife  lost  her  share. 
This  was  a  harsh  rule  ;  and  against  it  a  reaction  set  in,  having 
as  its  theoretical  point  of  departure  the  Roman  law  of  the  Lower 
Empire,  and  as  its  real  foundation  the  more  and  more  ener- 
getic affirmation  of  the  rights  which  the  wife  had  over  the  com- 
munity. Dumoulin  relates  that  he  had  to  struggle  for  more  than 
forty  years  in  order  to  have  the  old  practice  abandoned  by  the 
ParHament  of  Paris.^  —  The  wife  did  not  bind  the  community, 
either  by  her  offenses  ^  or  by  making  a  contract  under  the  au- 

^  The  husband's  debts  are  thus  debts  of  the  community  and  \nce  versa. 
Cf.  Stobbe,  IV,  281;  Britz,  840:  in  Gand,  the  wife,  even  when  she  has  obtained 
separate  maintenance,  is  held  jointly  and  severally  Uable  for  the  debts  con- 
tracted by  the  husband. 

2  Loysel,  89;  "Ord."  of  1250,  4;  "Beziers,"  1303,  30;  Beaumanoir,  30,  99, 
100.  Cf.  "Troyes,"  134;  "Meaux,"  26,  208:  Pothier,  248  etseq.:  the  commun- 
ity is  held  Mable  for  fines  and  civil  damages  which  may  arise  through  the  hus- 
band's WTongful  actions,  excepting  in  so  far  as  offenses  punishable  with  a 
capital  penalty  are  concerned,  for,  in  a  case  of  this  sort,  the  judgment  impUes 
civil  death  and  dissolves  the  community  of  absolute  right;  the  husband's 
debt  is  thus  contracted  after  the  community  has  ceased  to  exist.  Such  is 
the  subtlety  by  means  of  which  the  decline  of  the  husband's  powers  was 
justified.  It  is  interesting  to  compare  with,  this  what  Potliier  has  to  say 
with  regard  to  the  wife  (no.  501).  Civil  death,  which  reduces  the  rights  of 
the  husband  by  one-half,  should,  when  it  affects  the  wife,  mean  the  confiscation 
of  her  share  of  the  community;  far  from  having  tliis  effect,  it  prevents  the  rights 
of  the  wife  from  coming  into  existence.  "Jostice,"  p.  219:  in  case  the  hus- 
band's possessions  are  confiscated,  the  wife  does  not  lose  her  dower  (and  "a 
fortiori"  her  personal  belongings),  but  after  her  death  the  property  which 
is  the  subject  of  the  dower  reverts  to  the  Treasury:  "Ass.  de  J6r.,"  "Livre 
au  Roi,"  c.  21;  "T.  A.  C,  Bret.,"  118,  235;  "A.  C,"  423;  "Anjou,"  ed.  B.-B., 
"E.,"  78;  I,  97;  "Toulouse,"  120;  "Bord.  A.  C,"  21;  Stobbe,  IV,  98. 

3  On  "  Vermandois,"  12.  Loysel,  846,  cites  to  the  same  effect  an  Ordinance, 
or  Privilege  granted  in  1431  by  Henry  VI  to  the  Parisians. 

*  The  wife's  oifenses.  In  the  thirteenth  century,  the  husband  was  still 
personally  responsible  for  them,  which  caused  the  community  to  be  charged 
with  fines  and  pecuniary  damages:  ".lostice,"  p.  131;  Beaumanoir  30,  55. 
In  the  sixteenth  century  the  husband's  responsibility  had  disappeared,  ex- 
cepting in  a  few  of  the  Customs  where  he  was  protected  by  means  of  the  order 
for  separate  maintenance.  The  dependency  of  the  wife  was  no  longer  suffi- 
cient for  one  to  be  able  to  say  that  she  had  acted  under  her  husband's  influence. 
But  as  she  had  no  possessions  of  her  own,  unless  she  could  be  subjected  to 
bodily  distraint,  the  victim  of  the  injury  had  no  remedy  against  her  during 
the  time  of  the  marriage;  nor  had  the  victim  any  remedy  against  the  husband. 
In  case  the  possessions  of  the  wife  were  confiscated  as  the  result  of  a  capital 
penalty,  her  share  of  the  community  went:  (a)  to  the  Treasury:   "Bourb.," 

831 


§  559]  SYSTE]\I   OF  PROPERTY   BETWEEN   SPOUSES        [Chap.  V 

thority  of  a  coiirt.^  She  could  only  bind  it  by  contracting  under  the 
authority  of  her  husband,^  excepting  if  she  were  a  public  trades- 
woman in  her  own  business,^  or  in  a  few  exceptional  cases,  such  as 
to  obtain  the  release  of  her  husband  from  prison.^  When  she  acted 
with  the  authority  of  her  husband,  one  may  ask  on  what  theory  the 
community  was  bound. ^  According  to  the  early  point  of  view,  the 
husband  alone  had  the  right  to  bind  the  community;  the  act  of 
the  wife  which  was  authorized  was  looked  upon  as  the  act  of  the 
husband;  the  wife  was  effaced  and  had  only  carried  out  this  act 
in  the  quality  of  an  agent.  The  result  of  this  was  that  during  the 
time  the  community  lasted  the  wife  could  not  be  levied  on  as 
to  her  personal  belongings,  and  that  when  the  community  was 
dissolved  she  was  only  held  liable  with  regard  to  half  (assuming 
that  she  did  not  use  her  right  of  renouncing  —  post,  §  566  —  nor 
of  the  advantage  of  emolument).  The  husband,  on  the  other  hand, 
could  be  levied  on  for  the  whole,  just  as  though  he  had  con- 
tracted himself.  This  point  of  view  did  not  agree  very  well  with 
the  facts;  the  woman  had  spoken  when  acting,  she  had  personally 
bound  herself  and  bound  those  who  were  related  to  her;  she  was 
not  merely  the  mouthpiece  of  the  husband.  In  proportion  as  the 
idea  of  her  rights  over  the  community  came  to  be  better  under- 
stood, the  community  was  looked  upon  as  being  held  on  behalf  of 
the  wife,  and  the  husband  could  only  be  sued  for  a  half  in  his 
quality  of  a  joint  owner  of  the  property,  when  the  marriage  was 
dissolved.^ 

266;  "Tour.,"  255;  Beaumanoir,  30,  99;  cf.  ante,  the  husband's  offenses;  (b) 
to  her  heirs:  "Orl.,"  209;  (c)  to  her  husband:  Dumoulin,  on  "Montargis," 
5,  3;  Loysel,  847;  Pothier,  no.  501. 

1  Formerly  the  authorization  of  the  law  was  not  made  use  of;  if  it  were 
neces'^ary,  the  wife  could  bind  the  community  ("Jostice,"  p.  131;  "Ass. 
de  J^r.,"  "C.  des  B.,"  191;  Boutaric,  I,  9)  by  acting  alone.  We  have  seen 
how  the  custom  of  having  her  disabihty  removed  by  the  coiirts  came  to  be 
introduced:  "Orldans/'  201;  "Paris,"  224;  Loysel,  124. 

2  Argou,  III,  13  (it  is  presumed  that  she  has  bound  herseK  on  behalf  of 
her  husband);  Lebrun,  2,  3,  1,  2;  Pothier,  730. 

3  Beaumanoir,  43,  28.  The  mere  fact  of  carrying  on  trade  with  the  hus- 
band's knowledge  was  equivalent  to  an  authority:  "Poitou,"  227.  Cf.  the 
proverb:  "The  wife's  apron  binds  the  husband":  "Et.  de  St.  Louis,"  I,  47; 
"Ass.  de  J4r.,"  "C.  des  B.,"  132,  191;  "Paris,"  234;  Loysel,  57;  Stobbe,  I,  282. 

*  A  trace  of  the  old  law. 

^  As  to  the  personal  status  of  the  wife,  according  to  Beaumanoir,  cf.  "T.  A.  C, 
Bret.,"  40;  "Const,  du  Chfit.,"  39;  Desmares,  289;  "A.  C,  Anjou,"  ed.  B.-B. 
Table,  see  "Femme  mari(5e";  "L.  de  Dr.,"  I,  184. 

8  When  the  wife  binds  herself  together  with  her  husband  she  is  only  looked 
upon  as  his  surety;  in  Brittany,  "T.  A.  C,"  312,  314,  she  could  plead  that 
the  remedy  be  exhausted  against  the  principal  debtor  before  the  surety  be 
proceeded  against ;  the  common  law  of  the  Customs  left  her  equally  liable  with 
the  husband  to  the  prosecution  of  the  creditors,  but  it  gave  her  a  remedy 

832 


Topic  4]  SYSTEMS  OF  COMMUNITY  [§  560 

§  560.  Admixiistration  of  the  Community.  —  This  belongs  to 
the  husband,  like  the  management  of  the  personal  belongings 
of  the  wife,  because  of  his  husband's  power.  "The  man  is  the 
guardian,"  says  Beaumanoir.^  His  power  was  so  extensive  that 
he  is  qualified  as  "lord  and  master  of  the  community,"  ^  and  it 
is  said  of  the  wife,  "Non  est  proprie  socia,  sed  speratur  fore." 
In  the  thirteenth  century,  however,  there  is  a  distinction  to  be 
made  between  movables  and  jointly  acquired  property;  the  hus- 
band has  an  unrestricted  right  to  dispose  of  the  movables,  and  his 
powers  are  rather  those  of  an  owner  than  those  of  the  manager  of 
a  partnership;  he  can  only  dispose  of  the  jointly  acquired  property 
with  the  concurrence  of  his  wife.  Over  the  wife's  movables  he 
has  only  preserved  a  right  which  he  already  had  before  the 
community  existed;  it  follows  that  the  wife  is  subject  to  the  will 
of  her  lord  as  far  as  concerns  her  movables  and  the  deprivation 
of  her  inheritance,  —  "provided  that  she  openly  sees  her  loss  " 
(Beaumanoir).^  As  far  as  jointly  acquired  property  is  concerned, 
the  husband  cannot  dispose  of  it  alone,^  —  no  more,  however,  than 
he  could  alone  dispose  of  his  personal  belongings  because  of  the 
dower  which  encumbered  them.  This  limitation  of  his  rights  is 
all  the  more  surprising  as  it  had  disappeared  from  the  Customs  of 

against  her  husband,  basing  this  upon  the  idea  that  the  latter  had  alone  bene- 
fited by  her  obUgations  (unless  the  contrary  were  sho-ft-n):  Argon,  III,  13, 
etc.  We  can  see  how  far  removed  the  customary  law  was  from  the  system 
of  the  Velleianum  Senate  Decree  which  forbade  women  to  become  surety  for 
a  third  party:  "T.  A.  C,  Bret.,"  329;  "Cout.  d'Anjou,"  ed.  B.-B.  F.,  1167; 
"E.,"  228;  I,  261;  Ducoudray,  "Orig.  du  Pari.,"  p.  799. 

1  Beaumanoir,  21,  3;  30,  99,  100;  31,  2;  57,  2;  "Jostice,"  p.  169;  "Cout. 
Not.,"  14,  164,  175;  Desmares,  70,  152,  161;  "Gr.  Cout.,"  II,  31;  "Paris," 
107,  110,  226. 

2  Beaumanoir,  57,  2. 

'  Cf.  certain  German  laws  according  to  which  each  spouse  can  dispose  of 
the  community  possessions  (Munster),  or  else  the  spouses  must  both 
contract  in  order  that  the  community  may  be  bound  (Nuremberg) :  Stobbe, 
IV,  209. 

*  Beaumanoir,  21,  2;  30,  99;  "Jostice,"  p.  173;  Desmares,  152;  "L.  d.  Dr.," 
581,  884,  etc.;  Boutaric,  II,  29;  "T.  A.  C,  Bret.,"  82,  215,  211  (recompense 
for  the  wife  when  the  daughters  have  been  given  a  marriage  portion  out  of 
the  jointly  acquired  property). 

6  "Jostice,"  p.  169;  Beaumanoir,  loc  cit.;  "L.d.Dr.,"  829;  "T.  A.  C.,Bret.," 
40,  211,  217:  the  wife  has  the  same  share  as  the  husband  in  the  jointly  ac- 
quired property;  Jamont,  "These,"  p.  50;  Glasson,  VII,  367.  But  cf.  "Ass. 
de  J<5r.,"  "C.  des  B.,"  162;  Desmares,  70;  "Paris,"  225;  "Anjou,"  289;  "Tours," 
254;  Viollet,  p.  781;  "Catane":  the  husband  cannot  alienate  the  community 
immovables  without  the  assistance  of  his  wife.  Cf.  in  German  law  the  prac- 
tice of  the  "gesammte  Hand."  But  as  early  as  the  twelfth  century  we  also 
find  the  husband  disposing  alone,  and  without  the  assistance  of  his  wife,  of 
the  immovable  jointly  acquired  property:  Stobbe,  IV,  209.  The  question  is 
of  especially  great  importance  under  the  system  of  absolute  community. — 
Cf.  "Conf.  do  Gu«5nois,"  p.  557. 

833 


§  5G0]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

the  fourteenth  century.^  It  was  perhaps  due  to  the  old  rule  that 
inheritances  were  not  liable  for  debts;  the  obligations  of  the  hus- 
band affected  movables,  but  not  jointly  acquired  property,  and 
the  wife  by  renouncing  the  movables  preserved  her  share  of  the 
jointly  acquired  property.  The  husband,  if  he  could  not  take 
this  property  away  from  her  indirectly  by  contracting  debts, 
should  have  been  able,  it  seems,  to  alienate  it,  just  as  he  could  ac- 
quests made  by  him  before  the  marriage;  but  the  rights  of  his 
wife,  which  came  into  existence  owing  to  the  fact  of  the  property 
having  been  acquired  by  both  of  them,  were  opposed  to  this;  there 
was  seen  in  her  a  joint  owner  in  the  joint  tenancy,  and  the  hus- 
band was  bound  to  act  only  with  her  co-operation,  so  long  as  the 
immovables  were  a  species  of  property  the  preservation  of  which 
was  held  to  be  very  important.  In  the  fourteenth  century,  on  the 
other  hand,  the  husband  was  given  the  right  to  dispose  of  jointly 
acquired  property  as  well  as  of  movables.  Immovables  were  no 
longer  incapable  of  being  distrained  upon;^  thenceforth  creditors 
of  the  husband  could  seize  the  jointly  acquired  property  as  well  as 
the  movables;  in  order  to  free  herself  from  the  debts  of  the  com- 
munity, the  wife  had  to  renounce  both  the  movables  and  the 
jointly  acquired  property,  —  that  is  to  say,  she  had  to  renounce 
the  entire  community  property.  As  soon  as  jointly  acquired 
property  had  to  answer  for  the  debts  of  the  husband,  the  con- 
currence of  the  wife  in  their  alienation  became  rather  useless,  in- 
asmuch as  the  subordination  in  fact  under  which  she  found  herself 
made  of  her  presence  a  mere  formality;  it  was  preferred  to  give 
her  other  safeguards.  Some  of  these  consisted  in  restrictions  upon 
the  powers  of  the  husband,  and  others,  which  we  shall  discuss  later 
on,  in  the  power  which  she  had  to  withdraw  herself  from  the  con- 
jugal partnership. 

The  limitations  upon  the  powers  of  the  husband  principally 
affected  his  gifts  and  debts.  He  was  allowed  to  dispose  of  the  com- 
munity property,  even  by  means  of  a  gift  "inter  vivos,"  ^  at  his 

1  "Paris,"  225;  Coquille,  on  "Niv.,"  23,  3;  Pothier,  no.  3;  "Bretagne,  A.  C," 
414;  "N.  C,"  444  (c/.  443);  "Cout.  Not.,"  175;  Des^nares,  152. 

2  The  evolution  which  gave  rise  to  this  new  principle  has  been  sometimes 
more  rapid,  and  sometimes  slower,  according  to  locality.  Boutillier  only 
mentions  distraint  upon  movables  and  taking  of  inheritances,  whereas  J. 
d'Ibelin,  185,  deals  with  the  sale  of  the  fief  for  a  known  and  proven  debt. 
The  application  of  this  principle,  whether  under  its  final  form  or  whether 
by  the  indirect  means  which  led  up  to  it,  to  the  matter  of  the  community  must 
also  have  varied. 

3  "Cout.  Not.,"  175;  Desmares,  152;  "L.  d.  Dr.,"  911,  929,  930,  937;  "A.C., 
Anjou,"  II,  237.  — Pothier,  no.  3;  Ferriere,  on  "Paris,"  225;  Bntz,  841.— 

834 


Topic  4]  SYSTEMS   OF  COMMUNITY  [§  561 

own  pleasure  and  will,  without  the  consent  of  his  wife,  but  only 
to  a  person  who  was  capable  of  receiving  it  and  if  there  was  no 
fraud  ("Paris,  N.  C,"  225).  Now,  there  would  be  fraud  if  he 
secured  any  personal  advantage  from  gifts  of  the  community  pos- 
sessions (for  example,  by  making  a  disposal  for  the  benefit  of  those 
from  whom  he  inherited  or  his  heirs  presumptive,  or  of  his  children 
by  his  first  marriage,  or  of  his  bastards),  or  if  he  gave  an  undi- 
vided part  of  the  community,  "a  fortiori"  the  entire  commu- 
nity.^ He  was  never  allowed  to  make  a  will  of  more  than  his 
share  in  the  community,  for,  as  the  will  only  went  into  effect  at  the 
death  of  the  testator,  the  husband  had  at  that  time  only  a  half 
of  the  community  property.^  —  Though  he  still  bound  the  com- 
munity by  his  offenses,  we  have  seen  that  confiscation  had  in  the 
end  been  restricted  to  his  share.  —  The  theory  of  recompenses 
(post,  §  567)  prevented  him  from  enriching  himself  at  the  expense 
of  his  wife,  and  the  separate  estate  (post,  §  565)  obtained  by  the 
latter  carried  with  it  more  than  one  restriction  upon  the  powers 
of  the  husband;  it  implied  the  surrender  of  them.  — In  spite  of 
these  restrictions,  it  is  nevertheless  true  that  the  husband  did  not 
cease  to  be  the  lord  and  master  of  the  community;  on  principle, 
he  kept  the  right  of  disposing  for  a  consideration  and  gratui- 
tously of  the  possessions  which  went  to  make  up  the  community. 
He  is  not  a  mere  administrator  of  somebody  else's  fortune. 

§  561.  Part  played  by  the  Wife.^  —  From  the  fact  that  the  wife 
did  not  take  any  part  in  the  management  of  the  community  pos- 
sessions, it  would  be  incorrect  to  conclude  that  she  was  a  stranger 
to  the  community  during  the  life  of  her  husband.*    Dumoulin's 

Prohibition  of  gifts  "inter  vivos":  "Anjou,"  289;  "Maine,"  304.  —  Prussian 
"Landrecht,"  2,  1,  381;  Stobbe,  IV,  208  ("reclamatio  uxoria"  within  a  ahort 
delay).  —  Also,  Coucy,  I,  1,  etc. 

1  As  to  gifts  with  a  reservation  of  the  usufruct  see  Pothier,  no.  480. 

2  Desmares,  70;  "Paris,"  290;  Loysel,  121.  —  But  during  the  period  of 
transition  when  the  community  was  being  formed,  it  no  doubt  happened  that 
the  husband  was  allowed  to  dispose  of  the  community  possessions  by  last 
will  and  testament.  This  is  what  is  still  done  under  the  "Cout.  de  Lorraine," 
II,  7.  —  Cf.  as  to  the  absolute  community,  Stobbe,  IV,  214. 

'  Cf.  as  to  the  law  of  the  present  time.  Basset,  "Thc^se,"  1896.  As  to  the 
old  German  law  see  R.  Bartsch,  "  Rechtsstellung  der  Frau,"  1903.  Switzer- 
land: Huber,  op.  cit. 

*  As  to  the  status  of  the  married  woman  in  general  see  Chap.  I,  §  144. 
The  wife  living  in  a  state  of  community  has  two  sorts  of  rights:  rights  over 
her  own  possessions  and  rights  over  the  community.  —  (a)  \\Tien  the  old 
ideas  as  to  the  disability  of  women  were  abandoned  and  unmarried  women 
and  widows  were  allowed  to  act  in  the  same  way  as  men,  —  and  we  may  observe 
that  this  did  not  take  place  without  difficulty,  without  some  hesitation  and 
without  inconsistencies,  —  thus  in  Brittany  ("T.  A.  C,"  337)  the  wife  cannot 
bind  herself  on  behalf  of  third  persons,  whereas  she  can  do  so  on  behalf  of 

835 


§  561]  SYSTEM   OF  PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

celebrated  formula,  "Non  est  proprie  socia,  sed  speratur  fore,"  ^ 
is  exaggerated;  and  this  applies  also  to  Pothier's  paraphrase,  "The 
right  which  the  woman  has  is  looked  upon,  as  long  as  the  commu- 
nity lasts,  as  only  an  imperfect  right,  which  can  be  reduced  to  the 
right  to  some  day  share  the  possessions  which  will  be  found  to 
compose  the  community  at  the  time  of  its  dissolution."  The  wife 
is  systematically  kept  away  from  the  affairs  of  the  community; 
she  is  often  invisible,  but  always  present  because  of  her  future 
rights  and  because  of  the  guaranties  with  which  they  are  sur- 
rounded.^ One  can  say  with  regard  to  her,  as  with  regard  to  a 
person  in  a  partnership  which  has  an  appointed  manager,  that 
her  right  is  "potius  in  habitu  quam  in  actu."  Furthermore,  there 
are  occasions  when  this  right  is  made  manifest.  This  is  not  an 
allusion  to  the  cases  in  which  she  manages  the  affairs  of  the 
household,^  or,  again,  to  the  case  where  she  carries  on  business 
with  the  knowledge  of  her  husband;  her  status  of  a  partner  has 
nothing  to  do  with  her  part  as  mistress  of  the  house,  as  pictures 
show  her,  carrying  her  keys  and  her  purse  at  her  belt;  the  proof 
is  that  she  plays  this  same  part  under  the  system  which  has  no 
community,  and  that  she  binds  her  husband  under  similar  condi- 
tions; her  position  in  this  respect  is  that  of  an  individual  "alieni 
juris"  in  the  Roman  law,  a  slave  or  the  son  of  a  family  placed  in 
control  of  a  sum  of  money  or  charged  with  certain  transactions; 

her  husband,  her  father  and  mother  and  her  children;  elsewhere  she  cannot 
make  her  will  without  the  authorization  of  her  husband;  marriage  does  not 
emancipate  her  everywhere,  —  in  Burgundy  acts  done  without  authority  are 
looked  upon  as  being  against  good  custom,  etc.,  —  at  that  time  one  might  have 
recognized  the  married  woman  as  having  the  freedom  to  dispose  of  her  personal 
belongings,  to  bind  herself  with  regard  to  them,  upon  condition  of  respecting 
the  enjoyment  of  the  community;  the  tendency  in  this  direction,  after  having 
enjoyed  a  certain  amount  of  favor,  came  to  nothing.  The  married  woman 
who  was  held  to  be  under  a  disability  had  to  be  provided  with  the  authority 
of  her  husband  or  with  the  authority  of  the  law.  —  (6)  The  same  disabihty, 
and  still  more  so  with  regard  to  the  community  rights,  for  the  management  of 
community  affairs  is  left  to  the  husband.  One  may  well  ask,  however,  if  this 
disabihty  was  absolute. 

1  Dumoulin,  on  109  "Paris,"  no.  3;  cf.  on  37, 1, 1;  Pothier,  no.  497;  Lauriere, 
on  "Paris,"  225. 

2  In  the  Customs  which  admit  of  the  dower  of  children,  the  consent  of  the 
wife  to  the  alienation  of  the  husband's  possessions  which  are  subject  to  dower 
does  not  deprive  the  children  of  their  rights;  so  that  the  participation  of  the 
wife  in  this  form  of  alienation  becomes  of  little  use  and  is  no  longer  very  often 
found:  Pothier,  "Douaire,"  nos.  85,  343.  Cf.  in  the  existing  law,  the  wife's 
mortgage  over  the  jointly  acquired  property  and  over  the  husband's  per- 
sonal belongings;  the  wife  ordinarily  takes  part  in  the  alienation  of  these 
possessions,  because  third  party  grantees  require  that  she  should  give  up 
her  mortgage. 

3  Dumoulin,  on  114  "Paris,"  no.  3,  calls  her  the  agent  of  the  husband; 
Pothier,  no.  574;  Chaisemartin,  p.  324. 

836 


Topic  4]  SYSTEMS  OF  COMMUNITY  [§  562 

the  same  observation  applies  to  the  wife  who  is  a  pubhc  trades- 
woman.^ Where  she  appears  as  a  partner  is  when  she  bequeaths 
her  share  of  the  community  and  concurs  with  her  husband  in 
gifts  "inter  vivos"  of  things  which  belong  to  the  community,  and 
also  perhaps  when  she  binds  herself  with  the  authorization  of 
her  husband,^  and  in  this  way  binds  the  community.  Upon  this 
last  point  one  can  only  speak  doubtfully,  because,  as  we  have 
seen,  our  old  authors  did  not  agree  upon  the  part  played  by  the 
wife.  In  the  time  of  Beaumanoir  the  wife  was  also  invested,  as 
matter  of  law,  without  the  authority  of  court,  with  the  powers 
of  the  husband  whenever  the  husband  was  not  present  (absence, 
madness,  imprisonment);  but  here  again  we  must  observe  that 
she  was  in  the  same  position  under  the  system  where  there  was  no 
community;  there  were  seen  here  cases  of  necessity  which  made 
the  wife  the  provisional  head  of  the  household.  At  a  later 
date,  the  authority  of  court  was  an  indispensable  thing,^  but 
she  was  none  the  less  in  a  restricted  way  at  the  head  of  the 
community.^ 

§  562.  The  Wife's  Personal  Belongings.  —  The  husband  has 
also  the  administration  of  the  wife's  personal  belongings;  ^  he 
cannot  be  deprived  of  this  right,  which  belongs  to  him  in  two 
ways:  (a)  first,  by  reason  of  his  husband's  power,  which  also 
means  that  he  possesses  it  under  the  exclusive  system  of  com- 
munity; (6)  and  then  as  head  of  the  community,  because  it  is 
natural  that,  having  the  enjoyment  of  the  personal  belongings, 
he  should  also  be  entitled  to  the  administration  of  them.     The 

^  Desmares,  77,  allows  the  wife  to  act  at  law  with  regard  to  her  wages 
without  the  authority  of  her  husband. 

2  Old  deeds  containing  formal  authorizations:  Jamont,  "These,"  p.  19 
(in  1151). 

3  This  is  what  led  to  the  saying  that:  "formerly  a  joint  owner  of  the  com- 
mon mass  from  the  time  of  the  marriage,  in  spite  of  her  role  of  a  subordinate, 
she  no  longer  has,  in  the  sixteenth  century,  anything  but  a  right  in  the  com- 
munity which  is  incomplete."  From  a  partner  kei)t  in  the  background,  she 
must  have  descended  to  the  rank  of  a  stranger.  In  this  one  will  recognize 
the  fatal  influence  of  the  Roman  law.  In  our  opinion  this  influence  has  been 
greatly  exaggerated;  the  Roman  law  is  often  notliing  more  than  the  foreign 
flag  which  covers  a  species  of  merchandise  which  is  quite  a  national  one,  the 
fashionable  mask  with  which  a  theory  must  clothe  itself  in  order  to  penetrate 
into  the  juridical  world. 

*  The  absolute  prohibition  of  these  contracts  between  spouses  is  to  be 
accounted  for  by  the  fear  of  indirect  advantages,  and  by  the  idea  of  the  de- 
pendency of  the  woman:  "Gr.  Cout.,"  p.  321;  Dumoulin,  on  "Paris,"  156; 
"Paris,"  no.  5;  Pothier,  "Don.  entre  mari,"  no.  78;  "Niv.,"  23,  27;  "Bourb.," 
226;  "Norm.,"  510;  "Bourg.,"  26  (the  consent  of  the  heirs  presumptive  is 
valid);  Lebrun,  1,  5,  3,  4.  Cf.  separate  maintenance:  Hauriou,  "These," 
1898. 

6  Beaumanoir,  57,  2;  30,  99;  21,  2;  "Gr.  Cout.,"  2,  32,  p.  322. 

837 


§  562]  SYSTEM   OF  PROPERTY  BETWEEN   SPOUSES         [Cuap.  V 

result  of  this  is  that  the  wife  could  not,  for  example,  keep  for 
herself  the  management  of  a  part  of  her  inheritance.^  Separate 
estate  formed  by  contract  makes  its  appearance  only  at  the 
end  of  the  Old  Regime;  and  then  it  is  still  extremely  rare.  The 
powers  of  the  husband  thus  extend  over  all  the  wife's  posses- 
sions,^ and,  as  these  possessions  were  all  brought  to  the  husband 
in  order  that  he  should  provide  for  the  expenses  of  the  household, 
one  can  say  that  they  are  all  in  the  nature  of  marriage  portion. 
The  husband  has  the  right  to  lease  them  out  for  the  customary 
period  (generally,  nine  years)  ^  and  upon  condition  that  he  does 
not  act  in  such  a  way  as  to  defraud  his  wife  of  her  rights.^  He 
can  bring  possessory  actions,  but  not  actions  for  title  to  prop- 
erty,^ nor  can  he  alienate  or  encumber  the  immovables  of  his 
wife  in  any  manner;  ^  as  Loysel  says,  119,  "As  to  that  which 
concerns  ownership,  it  is  necessary  that  both  should  speak ,  ac- 
cording to  the  Custom  of  France."  This  rule,  in  use  for  many 
years,  was  applied  even  in  countries  where  the  community  was 
not  recognized.  If  it  had  been  infringed,  the  wife  or  her  heirs 
had  the  right  to  reclaim  the  personal  belongings  which  had  been 

1  Nor  could  the  husband  grant  its  enjoyment,  nor  could  his  creditors 
distrain  upon  anything  other  than  the  emoluments  as  they  came  into  exist- 
ence: Coquille,  on  "Niv.,"  107. 

2  As  the  nobleman's  possessions  of  the  wife  went  to  the  husband  in  his 
capacity  of  guardian,  there  arose  the  opportunity  to  pay  for  the  buying  back, 
"Et.  de  St.  Louis,"  I,  66,  cf.  "mortis  causa,"  transfer:  the  husband  paid 
the  fealty  and  homage,  could  be  known  as  marquis,  count,  or  baron,  if  the 
seigniory  was  a  marquisate,  an  earldom,  etc.;  he  exercised  the  feudal  rights 
(summons,  feudal  distraint,  profits,  etc.),  the  rights  of  justice  (appointment 
and  discharge  of  officers,  etc.),  the  rights  of  patronage  (presentation  to  ec- 
clesiastical benefices,  holy  water  and  incense,  funeral  decorations,  etc.): 
Pothier,  "Puiss.  marit.,"  86;  "Gr.  Gout.,"  2,  27;  "Ohm,"  II,  56,  8;  Loysel, 
118,  178;  "L.  d.  Dr.,"  444;  "T.  A.  G.,  Bret.,"  233.  Cf.  the  question  of  knowing 
whether  widows  ought  to  pay  fealty  and  homage  for  their  dower:  "Gonst. 
Chat.,"  79  (ed.  Mortet);  "Gout.  d'Anjou,"  ed.  B.-B.,  IV,  182. 

3  Contra,  "Blois,"  179  (duration  of  the  marriage);  Pothier,  "Puiss.  marit.," 
91,  93. 

*  "Paris,"  227.  A  lease  made  in  advance  by  way  of  anticipation  would 
be  fraudulent:  Lamoignon,  "Arretes,"  XXXII,  59,  60  (right  of  renewing 
leases  nine  or  eighteen  months  before  their  expiration).  Cf.  the  Givil  Gode, 
1430. 

5  "Ass.  de  J6r.,"  "G.  des  B.,"  222;  Beaumanoir,  21,  2;  "Gout.  Not.," 
161,  176;  Desmares,  20;  "Olim,"  IV,  336;  Boutaric,  II,  23;  "L.  d.  Dr.," 
75,  581;  J.  Faure,  "Inst.,  de  act.,"  "fuerat,"  no.  2.  — Contra,  "Melun," 
214;  "Poitou,''  228  {contra  to  the  "L.  d.  Dr.,").  —  "Gonst.  Ghat.,"  25,  80: 
in  case  the  wife  is  absent  the  husband  takes  the  possessions  which  come 
to  her  by  way  of  succession  and  can  plead  in  her  place  and  stead. 

6  Beaumanoir,  21,  2;  57,  4;  "Jostice,"  p.  169,  170,  173;  "Gr.  Gout.,"  2,  32; 
"T.  A.  G.,  Bret.,"  10;  "L.  d.  Dr.,"  308,  484,  581;  "A.  G.,  Anjou,"  I,  575;  III, 
460;  Stobbe,  IV,  277;  Briiz,  841.  In  certain  Gustoms  of  Lorraine,  an  aUenation 
of  the  personal  belongings  is  only  valid  if  carried  out  with  the  consent  of 
the  relatives  of  the  wife:  Marsal,  40. 

838 


Topic  4]  SYSTEMS  OF  COMMUNITY  [§  5G4 

alienated  from  the  third  party  who  had  acquired  it,  once  the 
marriage  had  been  dissolved/  —  that  is  to  say,  once  the  enjoy- 
ment of  the  community  had  come  to  an  end.  However,  if  the 
wife  (post,  §  566)  had  accepted  the  community,  she  was  held  in 
her  quality  of  a  member  of  the  community  for  the  obligation 
in  warranty  which  was  incumbent  upon  the  husband  who  made 
the  sale,  and,  as  a  consequence,  upon  the  community.  So  that 
she  was  compelled  to  restore  to  the  third  party  who  had  been 
ousted  half  of  the  price  and  damages.^ 

§  563.  The  Dissolution  of  the  Community  results  from  the 
death  (natural  or  civil)  of  one  of  the  spouses,  or  from  the  estab- 
lishment of  separate  estate.^ 

§  564.  Continuation  after  Death. ^  —  After  the  death  of  one 
of  the  spouses  the  community  is  dissolved,  as  a  general  rule, 
but  can  be  continued  according  to  certain  Customs  if  no  parti- 
tion takes  place  between  the  survivor  and  the  children.^  —  (A) 
In  the  thirteenth  century  the  continuation  of  the  community, 
which  never  takes  place  excepting  in  the  case  of  commoners,^ 

'  Up  to  this  point  the  widow  was  respected:  "  Jostice,"  p.  169,  170;  Boutaric, 
p.  822;  Ferriere,  on  "Paris,"  226,  "gl."  1,  no.  4;  Lebrun,  2,  2,  4,  18. 

2  Such  is  the  general  opinion.  Pothier  has  dissented  from  this:  "Vente," 
no.  179  (1762) :  reclaiming  of  one-half,  for  as  to  half  the  plea  of  warranty  can 
be  urged  against  her;  "Communaute,"  no.  253  (1769) :  reclaiming  of  the  whole, 
for  the  husband  has  exceeded  his  powers,  but  she  has  to  pay  back  half  the 
purchase  price,  which  she  has  unjustly  received,  exclusive  of  all  damages. 
Cf.  "Puiss.  du  mari,"  no.  84;  Coquille,  "Quest.,"  105;  Ferriere,  on  "Paris," 
226,  etc. 

'  Absence :  when  he  would  have  reached  the  age  of  one  hundred  the  spouse 
who  is  absent  is  presumed  to  be  dead;  the  community  is  therefore  dissolved 
when  this  time  comes;  up  to  that  time  there  is  occasion  for  the  putting  in 
possession  of  the  heir  presumptive  of  the  absent  person  (after  delays  wliich 
vary  according  to  the  Customs).  The  community  is  then  considered  to  be 
provisionally  dissolved,  but  if  the  one  who  is  absent  reappears,  it  was  con- 
sidered as  having  been  in  continual  existence;  in  fact  the  heirs  of  the  absentee 
had  the  power  to  leave  the  present  spouse  in  possession  of  the  community 
property.  Cf.  the  Civil  Code,  124;  see  Ferriere,  Guyot,  etc.;  Pothier,  VII, 
274;  VIII,  106;  see  Bretonnier,  post,  "Civil  Status." 

*  Loysel,  386  et  seq.;  Lauriere,  on  "Paris,"  240;  "Gloss.,"  see  "Comm."; 
Renusson,  p.  3;  Pothier,  769;  Ferriere,  on  "Paris,"  240;  Stobbe,  222,  241. 

6  Also  in  Germany.  Cf.  Stobbe,  loc.  cit.  and  p.  232  ("communio  bonorum 
prorogata,"  " fortgesetzte  Giitergemcinschaft").  Cf.  the  similar  institutions 
of  the  "Verfangenschaft,"  the  "  Alleinerbrecht  des  iiberlebenden  Ehcgattcn." 
In  certain  localities  the  child  who  has  received  his  share  of  the  community 
property  can  no  longer  have  any  claim  over  the  succession  of  the  surviving 
spouse:  Ficker,   no.   721,  etc. 

®  Beaumnnoir,  21,  9.  The  surviving  sj)ouse,  if  a  noble,  keeps  all  the  pos- 
sessions of  the  children  because  of  the  right  of  guardiarLship;  this  makes  the 
forming  of  an  association  by  them  impossible:  "A.  C,  Anjou,"  ed.  B.-B., 
II,  228.  We  have  already  seen  that  silent  partnerships  among  nobles  were 
rare,  the  "Gr.  Cout.,"  2,  40,  makes  use  of  general  expressions:  "Et.  de  St. 
Louis,"  I,  139,  140,  143.     Decision  of  the  "Pari,  aiix  Bourg.,"  in  1293,  in 

839 


§  564]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

seems  to  have  been  merely  a  consequence  of  the  community  life;  ^ 
the  facility  with  which  secret  partnerships  were  formed  seems  to 
account  for  this.-  But,  if  these  were  isolated  cases,  the  effect 
of  this  fact  would  only  have  been  the  formation  of  a  new  com- 
munity at  the  end  of  the  year  and  a  day;  and  Lauriere  has,  in 
fact,  maintained  that  there  could  be  no  question  of  anything  else 
excepting  a  new  community,^  even  when  there  was  no  such  inter- 
vening period.'*  This  proposition  seems  to  be  condemned  by  the 
texts;  it  is  the  same  community  which  is  continued  by  operation 
of  the  law  ^  between  the  children  who  have  come  of  age  and  those 
who  are  minors.^  With  what  object?  They  used  to  say,  to  leave 
to  the  surviving  spouse  in  the  interest  of  the  family  the  inheritance 
which  was  established  when  the  marriage  took  place.  This  is 
what  sometimes  took  place  under  the  exclusive  system  of  com- 

Leroux  de  Lincy,  p.  120:  there  exists  no  association  between  the  survivor  and 
liis  cliildren,  for  one  is  head  of  the  house  and  the  others  acquire  on  his  behalf; 
no  association  comes  into  existence  excepting  one  between  children  after 
the  death  of  the  sm-vivor. 

^  At  least  in  the  sixteenth  century  the  condition  of  cohabitation  is  not 
requisite,  and  it  does  not  ordinarily  exist  between  the  surviving  spouse  and 
the  collateral  relations  of  the  predeceased  spouse:  "Orleans,"  216;  "Berry," 
8,  19;  "  Bom-bon,"  270.  It  is  only  alluded  to  when  there  has  been  no  inventory 
and  partition. 

2  The  "  N.  C.  d'Orleans,"  213,  abolishes  the  use  of  silent  partnerships,  which 
were  sanctioned  by  art.  180  of  the  "A.  C,"  and  yet  at  the  same  time  it  up- 
holds the  carrying  on  of  the  community  in  its  Art.  216,  between  the  surviving 
spouse  who  is  not  a  noble  and  lais  heirs  whether  minors  or  not,  and  whether 
they  be  descendants  or  collaterals. 

^  Lam-iere  reasons  as  follows:  (a)  the  survivor  who  is  a  mere  administrator 
has  not  a  right  to  make  a  disposal  of  the  property  such  as  the  husband  has, 
he  being  the  head  of  the  community;  (b)  the  members  of  the  community 
are  not  the  same;  everything  acquired  by  either  of  the  spouses  goes  to  make 
up  a  part  of  the  conjugal  community;  what  is  acquired  by  the  children  does 
not  go  into  the  continued  community.  —  This  last  remark  was  perhaps  not 
correct  with  regard  to  the  old  law.  Cf.  "Gr.  Gout.,"  p.  371.  The  first  remark 
is  correct,  but  it  does  not  prove  anytliing  against  the  maintaining  of  the  com- 
munity; in  this  there  is  something  which  is  analogous  to  the  German  "Ver- 
fangenschaft." 

^  Beaumanoir,  21,  8,  does  not  mention  the  condition  of  a  year  and  a  day, 
but  he  seems  to  demand  it  further  on,  21,  25.  It  is  true  that  one  is  justified 
in  asking  whether  he  does  not  admit  that  a  new  community  is  formed,  21,  9; 
"Gr.  Gout.,"  p.  26.5  (the  survivor  remains  in  possession  a  year  and  a  day 
without  making  any  inventory;  the  heirs  can  claim  the  community). 

<*  "Bourb.,"  270;  "Orl.  A.  G.,"  182;  "N.  G.,"  216;  "Mame,"  216;  "Gd. 
Perche,"  106,  etc. 

^  Does  the  community  continue  to  exist  even  with  the  heirs  who  are  not 
the  descendants  of  the  predeceased  spouse?  Gertain  of  the  Gustoms  declare 
that  this  is  the  case,  but  we  have  our  doubts  as  to  whether  they  really  rep- 
resent the  old  law:  "Montargis,"  9,  3;  "Berrv,"  8,  19;  "Bourb.,"  270;  "Bass- 
igny,"  55;  "Orl.,"  216;  "Chateauneuf  et  Thim.,"  70;  "Metz"  town,  6,  9. 
To'the  contrary  Viollet,  p.  787.  —  Cf.  "Gr.  Gout.,"  2,  40,  pp.  365,  371;  "A.  G., 
Anjou,"  ed.  B.-B.,  II,  230;  IV,  263;  "Poitou,"  254;  "Gambrai,"  7,  11;  "Ass. 
de  J(5r.,"  "C.  des  B.,"  c.  187. 

840 


Topic  4]  SYSTEMS   OF   COimUNITY  [§  564 

munity,  without  there  being  any  question,  consequently,  of  com- 
munity properly  so  called.  This  is  also  what  took  place  under  the 
community  system  to  which  the  old  institution  adapted  itself 
as  well  as  it  could.  If  the  survivor  of  the  spouses  happened  to 
be  the  father,  it  was  natural  that  his  children  who  were  under 
his  authority  should  not  affect  his  position,  —  at  least,  dur- 
ing their  minority;  if  it  were  the  mother,  the  same  solution, 
which  made  her  the  head  of  the  community,  was  less  easy  to 
justify.  Nevertheless,  it  was  often  to  the  interest  of  all  not 
to  parcel  the  conjugal  inheritance  by  exercising  the  right  of 
dower. 

The  continued  community  included,  besides  the  possessions  which 
had  been  part  of  the  community  during  the  marriage,  acquests 
which  had  been  made  after  the  dissolution  of  the  marriage  by  the 
surviving  spouse.  To  compensate  for  this,  the  acquests  made  by 
the  children  were  scarcely  ever  included  in  this  community  (be- 
cause they  did  not  arise  from  the  income  of  the  community,  which 
was  all  in  the  hands  of  the  surviving  spouse,  and  they  could  not 
be  the  result  thenceforth  of  anything  but  personal  gifts).  However 
this  may  have  been,  the  surviving  spouse  had  the  same  powers 
as  the  husband  had  during  the  marriage.  Thus  the  widow  as 
well  as  the  widower  was  in  charge  of  the  community  affairs; 
the  co-operation  of  the  children  was  required  for  acts  of  disposal 
affecting  the  personal  belongings  which  would  come  back  to  them, 
just  as  during  the  marriage  the  co-operation  of  the  wife  was  neces- 
sary for  acts  analogous  to  these.  All  the  children  together  only 
counted  as  one  person,  which  does  not  agree  very  well  with  the 
manner  in  which  secret  partnerships  are  organized.  If  one  of  the 
children  died  without  issue  his  share  went  to  the  others  by  right 
of  increase,  without  there  being  any  possible  question  as  to  the 
inheritance  or  as  to  any  right  for  the  benefit  of  the  surviving 
spouse. 

The  continued  community  came  to  an  end  at  the  death  of  the 
spouse  or  a  second  marriage;  and,  according  to  certain  Customs, 
upon  a  partition  which  was  carried  out  at  the  demand  of  the  chil- 
dren when  they  had  come  of  age;  or,  in  certain  localities,  by  the 
surviving  spouse.  In  a  case  where  the  survivor  remarried,  the  new 
community  established  between  him  and  the  new  spouse  was 
grafted  upon  the  old  community  in  such  a  way  as  to  form  a  com- 
munity with  three  heads,  —  the  new  spouse  and  the  children  of 
the  second  marriage  only  counting  as  one  person.    This  is  what 

841 


§  5G4]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

Avas  called  the  "continuation  of  a  composite  community,"  as  con- 
trasted with  the  continuation  of  the  simple  community.^ 

(B)  In  the  sixteenth  century  secret  communities  disappeared; 
the  continuation  of  the  community  should  have  disappeared  with 
them,  all  the  more  so  as  the  old  institution  from  which  it  was  de- 
rived had  for  a  long  time  ceased  to  exist.  The  Custom  of  Paris, 
however,  preserved  it  under  the  head  of  "a  penalty  against  the 
surviving  spouse,"  whether  a  member  of  the  nobility  or  a  com- 
moner, who  had  neglected  to  make  an  inventory,  and  only  for  the 
benefit  of  minor  children.  Through  his  own  fault,  the  surviving 
spouse  ran  a  risk  of  depriving  the  children  of  the  community  share 
of  the  predeceased  spouse.  The  children  were  authorized  to 
claim  one-half  of  the  movables  and  acquests  which  were  found  in 
his  possession  at  the  time  when  they  acted.  In  this  way  he  could 
not  enrich  himself  to  their  detriment,  because  he  owed  them  a 
part  of  the  advantages  which  accrued  to  himself.^  But  the  rem- 
edy was  worse  than  the  evil.  It  resulted  in  the  most  extreme 
complications  in  the  regulating  of  the  respective  interests  of  the 
parties,  especially  in  the  case  of  the  community  with  three  heads, 

§  565.  The  Separate  Estate  (Judicial)  is  one  of  the  most 
powerful  guaranties  which  were  created  for  the  benefit  of  the 
wife  against  the  bad  administration  of  the  husband;  in  fact,  it 
brings  to  bear  upon  the  power  of  the  husband  a  more  serious 
check  than  renunciation  of  community  or  benefit  of  emolument. 
It  was  not  recognized  at  first,  even  as  a  consequence  of  domestic 
separation  (post,  §§  566,  567).  According  to  Beaumanoir,  57,  2 
and  4,  the  wife  only  had  a  right  in  a  case  of  divorce  to  sufficient 
support  for  her  maintenance,  assuming  that  the  separation  had 
been  pronounced  in  her  favor;  ^  if  it  were  pronounced  against  her, 

1  Beaumanoir,  21,  8  (community  with  tliree  or  four  members,  according  as 
to  whether  there  has  been  a  second  or  a  third  marriage);  "Olim,"  IV,  1176; 
"Gr.  Gout.,"  p.  371. —  C/.  Sicily,  Fertile,  III,  359;  "Messina,"  7  (the  share 
of  the  spouse  who  has  married  twice,  at  death  is  divided  into  halves  among  the 
children  of  the  first  and  second  marriages).  —  Stobbe,  IV,  285. 
.  2  "Paris,  A.  C,"  118;  "N.  G.,"  240;  Pothier,  no.  769,  etc.;  Givil  Gode  of 
Lower  Canada,  1323.  It  depended  upon  the  choice  of  the  cliildren  as  to 
whether  the  community  should  be  carried  on  or  not;  if  they  decided  in  favor 
of  its  dissolution  at  the  death,  it  was  difficult  for  them  to  prove  of  what  the 
community  had  consisted:  "Arr.,"  of  Lamoignon,  29,  114  et  seq. 

*  Beaumanoir,  57,  4:  the  wife  is  given  by  law  "some  of  the  community 
possessions  for  her  support;  but  not  when  there  is  no  division  either  by  halves  or 
by  quarters,"  5:  she  loses  what  she  has  received  if  she  leads  an  evil  life;  Fertile, 
III,  356.  Long  before  this  the  "Ass.  de  Jer.,"  "G.  des  B.,"  171,  172,  took 
precautions  for  the  preservation  of  dower,  when  the  husband  impoverished 
himself;  but  there  is  no  question  of  a  partition  of  the  community:  Viollet, 
p.  790;  "T.  A.  C.,  Bret.,"  82,  215.   At  the  same  time  the  "Olim,"  III,  152 

842 


Topic  4]  SYSTEMS   OF   COMMUNITY  [§  565 

it  carried  with  it  the  loss  of  dower  and  of  her  share  of  the  com- 
munity.^ In  Boutillier's  "Somme  Rural,"  if  the  husband  loses 
his  fortune,  the  wife  asks  for  a  separation  of  bed  and  board,  or  a 
portion  of  his  possessions." 

The  principal  form  of  judicial  separate  estate  was  borrowed 
from  the  Roman  law  towards  the  sixteenth  century.^  It  was 
sanctioned  by  Art.  224  of  the  Reformed  Custom  of  Paris.  It 
was  granted  to  the  wife^  in  a,  rather  discretionary  manner,  starting 
from  the  Roman  idea  that  the  marriage  portion  was  endangered 
by  the  disorder  of  the  husband's  affairs,  "Vergit  ad  inopiam." 
The  wife  who  was  given  a  separation  took  back  her  personal  be- 
longings; but  it  was  doubted  whether  she  should  have  her  share  of 
the  community.  The  very  fact  that  the  separation  had  taken 
place  led  to  the  assumption  that  the  community  was  a  bad  one.^ 
However,  practice  granted  her  this  privilege,  for  the  wife  had  a 
chance  to  get  back  the  remains  of  her  fortune  in  movables  in 
what  was  left  of  the  common  assets.  —  Separate  estate  was 
regulated  by  the  courts  in  such  a  way  as  to  safeguard  all  the 
interests  of  the  wife  without  doing  any  injury  to  third  persons.^ 
It  could  only  result  from  a  judgment;  if  it  were  done  in  a  friendly 
way  it  would  have  allowed  of  too  many  pretenses  and  too  much 
deceit.  This  judgment  itself  had  to  be  surrounded  with  pub- 
licity (for  it  retroacted  to  the  day  when  the  separation  was  asked 

(in  1304),  gave  the  wife  divorced  by  the  Church  her  "bona  immobilia  et 
paraphernalia."     C/.  Dig.  X,  4,  20;  1,  4,  10. 

1  "Gr.  Gout.,"  2,  32,  p.  322;  "Jostice,"  pp.  217,  219  (one  profits  by  the 
fooUshness  of  the  other);  Pothier,  no.  507. 

2  Boutaric,  II,  8;  "L.  d.  Dr.,"  223;  "Ohm,"  loc.  cit.;  "Gr.  Gout./'  2,  32. 

3  Dig.,  24,  3,  24;  "Nov.,"  97,  6;  Loysel,  126,  395;  "Orleans,"  198;  "A.  G., 
Bret.,"  408,  etc.;  Argou,  III,  20.  _  Viollet,  p.  790,  and  Glasson,  VII,  370,  cite 
a  document  of  the  year  1396  deahng  with  a  separate  estate  at  law.  Desmares, 
129,  does  not  provide  for  a  case  of  this  sort;  Stobbe,  IV,  215. 

*  Some  of  the  Gustoms  allow  the  husband  to  obtain  separate  maintenance 
against  the  wife,  because  of  the  offenses  committed  by  her  and  the  responsi- 
bility which  he  incurs  ("Maine,"  145;  "Anjou,"  160).  To  the  same  effect 
Lebrun,  3,  1,  11,  who  cites  an  Order  of  1602  of  the  Parliament  of  Paris  pro- 
nouncing a  separate  maintenance  for  a  husband  whose  wife  was  involved  in 
114  actions.  This  opinion  did  not  prevail.  Separate  maintenance  was  made 
a  privilege  of  the  wife's,  under  the  influence  of  Roman  tradition  and  upon 
the  basis  that  it  was  a  remedy  for  abuses  of  the;  husband's  power,  a  means  of 
preventing  the  husband  from  squandering  the  marriage  portion:  Pothier, 
no.  513.     German  law  is  contra  to  this. 

*  Lauriere  maintains  that  acceptance  of  the  community  is  in  direct  opposi- 
tion to  separate  maintenance.     To  the  contrary  Lebrun,  etc. 

*  Regulating  Order  of  1555  (Normandy).  Claims  made  against  the  States 
General  of  1614  {Picot,  "Hist,  des  Et.  gdn.,"  IV,  69);  Onhnance  of  1629, 
143,  193;  Edict  of  Sept.,  1703;  "Arr."  of  Lamoignon,  29,  71  et  seq.;  Pothier, 
no.  518.  Local  regulations,  for  example  at  Orleans.  As  to  the  wives  of 
traders,  cf.  Ordinance  of  1673,  Tit.  8;  Viollet,  p.  793. 

843 


§  565]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

for,  SO  as  to  avoid  the  complete  loss  of  the  husband's  fortune)  and 
it  had  to  be  carried  out  without  fraud.  The  effect  of  the  separation 
was  that  the  position  of  the  wife  was  found  to  be  greatly  changed. 
Once  more  in  control  of  her  fortune,  she  had,  according  to  certain 
Customs,  its  free  disposal,  just  as  though  she  had  not  been  mar- 
ried.^ The  common  Customary  law,  without  going  as  far  as  this, 
at  least  allowed  her  the  enjoyment  and  the  administration  of  her 
possessions,  but  charged  with  paying  to  her  husband  a  portion  of 
her  income  to  cover  the  expenses  of  the  household.^  The  re-estab- 
lishment of  the  community  was  possible  if  both  spouses  gave  their 
consent  to  it;  but  it  had  to  be  established  by  means  of  a  notarial 
deed,  excepting  in  the  case  of  a  separation  of  bed  and  board,  in 
which  case  it  resulted  from  the  re-establishment  of  the  community 
life.3 

§  5GG.  Right  of  the  Wife  to  choose  between  Acceptance  and 
Renunciation.  —  A  partner  cannot  choose  between  acceptance 
and  repudiation  of  the  partnership  when  the  latter  is  dissolved ;  he 
takes  his  share  in  the  benefits  and  losses.  It  is  otherwise  with 
heirs  called  to  a  succession;  they  have  the  choice  between  two 
courses,  —  either  to  accept  or  to  renounce.  The  wife  living  in  a 
community  is  treated  rather  as  an  heir  than  as  a  partner;  she  has 
the  power  to  renounce  her  share  of  the  community  in  order  to 
escape  the  consequences  of  the  husband's  bad  administration.  By 
this  means,  after  this  choice  has  taken  place,  she  makes  herself  a 
stranger  to  the  partnership  when  the  liabilities  are  greater  than 
the  assets.  They  w^ent  even  further  than  this;  she  was  authorized 
to  make  an  agreement  to  the  effect  that  when  she  made  a  renun- 
ciation she  should  be  able  to  withdraw  what  she  had  contributed; 
this  is  the  "  clause  of  the  retaking  of  the  share  contributed  free  and 

1  "Bourbon,"  170,  232;  "Montargis,"  8,  6;  "Dunois,"  58;  "Sedan,"  97; 
Viollet,  p.  790.  When  separate  maintenance  is  decreed,  the  wife  may  be 
given  a  general  authority  to  alienate  her  possessions,  according  to  certain  of 
the  Customs:  "Berry,"  1,  21;  "Handre";  see  Guyot;  Pasqider,  "Inst.," 
p.  370.  There  are  some  who  conclude  from  the  "Gr.  Cout.,"  2,  40,  p.  371, 
that  the  spouses,  by  making  a  division  or  a  protest  within  a  year  and  a  day, 
were  thereupon  granted  separate  maintenance;  we  believe  that  a  division 
or  a  protest  of  such  a  nature  as  to  do  away  with  the  community  could  only 
be  carried  out  by  the  relatives,  which  the  "Gr.  Cout."  also  mentions. 

2  Loysel,  126.  There  were  two  views  as  to  the  status  of  the  wife  who  was 
separated  from  her  husband:  there  are  some  who  would  allow  her  to  dispose 
of  her  movables  without  restriction,  at  least  for  a  consideration,  and  also  to 
bind  herself  with  regard  to  her  immovables;  others  not  wishing  to  allow  her 
to  dispose  of  her  movables  excepting  to  supply  her  needs  and  to  allow  her 
only  to  contract  slight  obUgations  not  exceeding  in  amount  the  value  of  the 
movables. 

3  Retroactive  effect:  "Orleans,"  199;  Pothier,  no.  524. 

844 


Topic  4]  SYSTEMS   OF   COMMUNITY  [§  oGG 

clear."  ^  Leaving  aside  a  clause  as  exorbitant  as  this,  let  us  note 
the  fact  that  the  right  to  renounce  was  justified  by  saying  with 
Dumoulin:  "Marito  non  licet  onerare  propria  uxoris,"  If  the 
wife  had  not  been  able  to  renounce  the  community  she  would 
have  been  liable  to  pay  the  debts  of  the  husband  which  were  at 
the  same  time  debts  of  the  community.  Personal  belongings 
would  have  been  seized  and  the  husband  would  have  indirectly 
succeeded  in  depriving  her  of  them.  The  renunciation  of  com- 
munity was  regulated  in  the  same  way  as  rer^unciation  of  succes- 
sion. It  had  to  take  place  at  law  or  by  notarial  deed.  The  period 
granted  within  which  to  make  it  and  which  varied  according  to 
the  Customs  was,  according  to  Loysel,  forty  days  from  the  time 
of  the  inventory;  and  the  inventory  itself  had  to  be  made  within 
forty  days  of  the  death :  "  The  term  of  forty  days  and  forty  nights 
was  the  one  generally  in  use  among  the  French."  The  Ordinance 
of  1667,  T.  VII,  Art.  5,  gave  the  wife  three  months  and  forty  days 
within  which  to  make  an  inventory  and  come  to  her  decision.  At 
the  end  of  this  time  she  lost  her  plea  for  delay,  which  up  to  that 
time  she  had  a  right  to  set  up  in  opposition  to  the  creditors  of  the 
community;  but  not  her  right  to  repudiate. 

During  the  fourteenth  century  the  renouncing  is  presented 
under  the  form  of  a  symbolical  act  consisting  in  the  throwing  of 
the  belt,  the  purse  and  the  keys  of  the  widow  upon  the  grave  of 
the  deceased,  as  soon  as  the  body  has  been  put  into  the  grave; 
ha\ang  done  this,  the  widow  had  to  take  care  not  to  return  to  the 
"house  where  movables  are,"  but  to  go  away  and  "live  some- 
where else."  She  should  only  take  with  her  her  regular  dress. 
Under  these  conditions  she  was  "clear  of  the  debts  forever."  ^ 
This  ceremony,  performed  as  it  was  without  any  delay  and 
without  any  time  having  been  taken  for  reflection,  bears  witness 

1  CJ.  Desmares,  129.  Contrary  to  Lebrun's  opinion  the  wife  should  then 
pay  her  debts  contracted  previous  to  the  marriage.  There  was  a  tendency 
to  make  of  this  a  typical  clause:  Louet,  D.,  39,  9;  Argou,  III,  6;  "Arr."  of 
Lamoignon,  23,  37. 

2  "Gr.  Cout.,"  p.  375:  Lecoq,  "Q.,"  131;  "A.  C,  Bourges,"  3;  Boutanc, 
II,  21;  "Bourg.  A.  C,"  38,  39;  "N.  C,"  4,  20  (Chassaneus,  p.  749);  D'Achery 
"Spicil.,"  Ill,  721;  Loysel,  132  (historical  examples);  Pasquier,  "Rech., 
IV,  8;  Ragueau,  see  "Clefs,  Ceintures."  In  the  sixteenth  century  this  usage 
was  still  to  be  found  in  certain  of  the  Customs:  "Vichy,"  "Meaux,"  "Lor- 
raine," 2,  3,  etc.  Germany:  "Schlusselrecht"  or  "Mantelrecht":  Stobbe, 
§  221.  —  No  doubt  the  widow  could  also  make  a  renunciation  at  law  in  cases 
where  there  was  some  obstacle  in  the  way  of  the  carrj^ing  out  of  the  customary 
ceremony  at  the  grave;  thus  a  "Fragm.  d'un  R(5pert.  de  jurispr.  Parisienne 
au  XV®  s.,"  shows  her  to  us  placing  her  girdle,  her  purse  and  her  keys  upon 
the  provost's  desk.  It  was  an  easy  transition  from  this  to  a  mere  declara- 
tion: Britz,  840. 

845 


§  566]  SYSTEM    OF   PROPERTY   BETWEEN   SPOUSES         [Chap.  V 

to  the  rudimentary  condition  of  this  institution.  What  did  the 
renunciation  to  the  community  consist  of  at  this  time?  Did  it 
exist  at  all  ?  What  is  its  origin  ?  Upon  this  embarrassing  question  ^ 
let  us  observe  first  of  all  that  the  reason  which  was  invoked  in  the 
sixteenth  century  in  order  to  justify  the  renunciation  did  not  exist 
at  the  beginning  of  the  Customary  period;  in  fact,  the  personal 
belongings  could  not  be  distrained  upon.  The  husband  might 
get  himself  into  debt,  but  he  could  not  by  this  means  succeed 
in  indirectly  alienating  the  personal  belongings  of  his  wife,  or  in 
a  general  way  in  alienating  the  immovables  which  she  possessed. 
If  she  made  no  renunciation,  at  the  most  the  wife  would  have 
been  liable  to  be  sued  with  respect  to  her  future  movables,  and 
especially  the  income  of  her  personal  belongings.  This  is  an  evil, 
undoubtedly;  at  the  same  time,  it  is  a  lesser  evil  than  if  she  had 
been  dispossessed  of  her  lands.  With  creditors  who  were  a  little 
tolerant,  and  whose  interests  often  compelled  them  to  be  patient, 
we  can  conceive  of  a  system  of  community  without  renunciation. 
The  question  is  whether,  in  fact,  it  existed.  Our  old  authors 
thought  so.  They  believed  that  the  right  of  renunciation  was 
unknown  originally,  but  that  it  was  introduced  for  the  benefit  of 
the  widows  of  the  nobility,  at  the  time  of  the  crusaders,  who 
had  sunk  their  fortunes  and  those  of  their  wives  in  order  to  go  to 
the  Holy  Land  to  fight.  This  privilege  would  then  have  belonged 
to  the  wives  of  the  crusaders,  and  later  to  the  wives  of  the  nobles, 
and  finally,  by  a  last  step,  to  the  wives  of  the  commoners.  The 
first  trace  of  this  explanation  is  to  be  found  in  a  passage  of  the 
"Grand  Coutumier  de  France,"  that  is  to  say,  in  a  work  written  a 
long  time  after  the  crusades.  Absolutely  no  contemporary  testi- 
mony confirms  it.^  No  one  accepts  it  to-day.  There  is,  moreover, 
a  point  to  which  sufficient  attention  had  not  been  given;  the  texts 
previous  to  the  fifteenth  and  sixteenth  centuries  are  not  concerned 
with  renunciations  to  the  community  looked  upon  as  an  indivisible 
whole;  they  only  speak  of  renunciations  of  movables;  ^  in  abandon- 

1  The  authors  are  very  much  divided:  Loysel,  112,  113;  Ginoulhiac,  312; 
Laboulaye,  286;  Tardif,  op.  ciL;  Guilhiermoz,  "B.  Ch.,"  1883,  489  (careful 
analysis  of  the  texts);  Glasson,  VII,  371;  Viollet,  785;  Stobbe,  §  221,  222. 

2  "Gr.  Gout.,"  p.  375.  Cf.  note  by  Charondas,  h.  1.;  Bidrey,  "Priv. 
des  croises,"  "These,"  1900.  —  Cf.  Maillart,  "Gout.  d'Artois,"  p.  815;  Loysel, 
112. 

'  Sometimes  it  is  a  question  of  the  renunciation  of  the  portion  of  the 
movables  which  ought  to  revert  to  the  wife,  and  sometimes  of  the  renunciation 
of  all  the  movables  (reference-legacy  of  the  noble  spouse) :  "Gr.  Gout.,"  p.  375; 
"Goust.  de  fief,"  loc.  cit.;  J.  Lecoq,  131;  Boutaric,  II,  11;  "A.  G.,  Champ.," 
12;  "Paris,  A.  G.,"  115,  116;  "N.  C.,"  237  el  seq.;  "Goust.  de  Verm.,"  307- 

846 


Topic  4]  SYSTEMS   OF  COMMUNITY  [§  566 

ing  her  share  of  the  movables  the  wife  freed  herself  from  the  debts; 
this  did  not  prevent  her  from  having  a  half  of  the  property  acquired 
jointly.^  On  the  other  hand,  the  renunciation  of  movables  is  only 
allowed  to  the  wife  of  a  noble.-  Upon  both  these  points  the  law 
changed.  The  Old  Custom  of  Paris,  115,  did  not  yet  give  the 
right  of  renunciation  to  the  widow  of  a  commoner.^  It  is  only  in 
the  Reformed  Custom,  237,  that  it  was  sanctioned,  in  conformity 
with  the  doctrine  of  Dumoulin.  We  do  not  know  exactly  at  what 
period  the  renunciation,  instead  of  being  limited  to  movables, 
affected  the  whole  community.  Certain  manuscripts  of  the  "  Grand 
Coutumier"  mention  the  renunciation  of  movables  and  property 
acquired  jointly.  There  is  reason  to  believe  that  it  was  towards 
the  end  of  the  fourteenth  century  that  this  change  took  place.'* 

"A.  C,  Picardie,"  p.  110.  The  renunciation  even  makes  its  appearance 
under  the  system  where  there  is  no  community,  when  the  survivor  takes 
all  the  movables  with  the  power  to  dispose  freely  of  them,  whereas  the  im- 
movables are  conferred  upon  him,  but  with  the  reservation  of  the  rights 
of  the  children.  We  have  already  pointed  out  this  remarkable  tendency 
towards  the  maintaining  of  the  imity  of  the  inheritance  at  the  death  of  one 
of  the  spouses. 

1  "OUm,"  II,  240  (in  1284),  and  ^'A.  C,  Champ.,"  12:  does  the  word  in- 
heritance include  the  share  of  the  jointly  acquired  property?  Cf.  "Vitrv," 
92;  "Sedan,"  88;  Brittany,  "T.  A.  C,  Bret.,"  315;  Ordinance  of  John  V,  1420, 
Art.  24:  the  wife  who  renounces  shall  not  have  anv  right  to  the  acquests; 
D.  Morice,  II,  1058;  "Paris,  A.  C,"  115;  "Coust.  de  Verm.,"  307. 

2  "T.  A.  C,  Bret.,"  35,  207;  Desmares,  153;  "Cout.  Not.,"  15,  83;  Boutaric, 
I,  20;  "A.  C,  Anjou,"  ed.  B.-B.,  I,  483;  II,  338;  III,  3.34;  IV,  201.  Guil- 
hiermoz,  p.  5(30:  renunciations  by  princesses  in  the  fourteenth  and  fifteenth 
centuries.  They  were  looked  upon  with  disfavor.  In  Burgundy  the  wife 
who  renounced  was  deprived  of  her  dower,  her  furnished  chamber  and  her 
rings  and  jewels,  etc.:  Loysel,  398  (formerly  loss  of  the  mutual  gift);  "Conf. 
de  Guenois,"  p.  578  et  seq. 

3  Loysel,  113  (De  Mesme);  "A.  C,  Poitou,"  Guilhiermoz,  p.  497.  — The  clause 
in  her  marriage  contract  by  which  the  wife  prevented  herself  from  making 
a  renunciation  of  the  community  was  held  to  be  illegal;  cf.  however,  "Orleans," 
204.  Thus  the  power  of  renouncing  had  become  one  of  a  public  nature.  • — 
It  was  at  first  a  personal  right  of  the  wife's;  her  heirs  could  lay  no  claim  to 
it  unless  by  virtue  of  a  special  clause  in  the  marriage  contract.  Some  Orders 
of  the  sixteenth  century  (of  April  15,  1567;  "Orleans,"  204)  allowed  them 
the  power  of  renouncing:  Pothier,  no.  5.50.  —  The  extension  of  this  right  in 
these  two  directions  shows  us  that  it  did  not  naturally  belong  to  the  wife  living 
in  a  state  of  community;  it  was  a  right  which  she  only  attained  with  difficulty. 
The  formula  of  the  fourteenth  century:  "conquicstus  mobilia  et  debita  esse 
communia,"  also  excludes  the  idea  of  a  renunciation:  "Gr.  Cout.,"  p.  321; 
J.  Lecoq,  83.  Cf.  also  "Gr.  Cout.,"  p.  218  (the  wife  held  liable  to  pay  the 
debts  contracted  by  her  jointly  and  severally  with  her  husband,  although 
all  the  movables  have  been  confiscated). 

*  In  the  printed  editions  of  the  "Gr.  Cout.,"  p.  375,  only  the  renunciation 
of  movables  is  dealt  with,  but  in  several  manuscripts  both  the  movables 
and  the  jointly  acquired  property  are  mentioned.  In  the  "Coustumes  de 
fiefs"  (abridged  by  the  "Gr.  Cout.,"  p.  298),  "B.  Ch.,"  2d  s.,  V,  56,  the  wife 
renounces  all  the  movable  possessions  and  all  the  husband's  debts  and  all 
the  possessions  of  every  kind  which  she  and  her  husband  have  held  (except- 
ing her  dower);  this  indefinite  formula  does  not  seem  to  take  the  immovables 

847 


§  566]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

This  was,  moreover,  perfectly  logical;  for  the  day  when  immov- 
ables became  a  pledge  for  the  creditors,  the  wife  could  no  longer 
withhold  her  share  of  the  jointly  acquired  property  without  con- 
tributing to  the  debts.^  The  division  of  the  community  into  two 
portions,  movables  and  jointly  acquired  property,  has  in  it  noth- 
ing contradictory  to  the  very  old  law;  it  is  about  the  same  as  the 
distinction  which  is  made  with  relation  to  succession  between  the 
heirs  to  the  movables  and  the  heirs  to  the  personal  belongings. 
It  is  not  so  easy  to  explain  why  the  renunciation  of  movables 
seems  to  be  reserved  for  the  nobility  alone.  If  it  is  a  favor  that 
was  conferred  upon  them,  one  has  to  seek  the  motive  for  it  in 
vain;  for  it  seems  very  difficult  to  believe  that  the  nobility  were 
the  only  people  who  got  into  debt,  in  spite  of  the  proverb,  "The 
villein  has  ready  money,  a  noble  prince  has  never  a  sou";  if  it  is 
a  right  which  they  exercise,  it  should  also  belong  to  common- 
ers. By  supposing  {ante,  §  554)  that  the  community  was  not  origi- 
nally used  by  the  nobility  the  problem  would  be  found  to  be 
solved  in  a  rather  satisfactory  manner;  the  status  of  a  community 
owner  of  possessions  or  a  partner  prohibited  the  commoner  from 
making  a  renunciation ;  ^  on  the  other  hand,  the  spouse  who  was 
a  noble  was  entitled  to  a  right  by  survivorship,  which  he  was 
free  to  give  up.^    It  is  true  that  this  theory  of  the  history  of 

into  account;  cj.  Boutaric,  II,  21;  "C.  de  Verm.,"  203  et  seq.  On  the  other 
hand  in  a  document  dated  during  the  latter  part  of  the  fourteenth  century, 
the  "Notables  Points  de  I'usage  de  France,"  ed.  Bordier,  "Rec.  de  textes 
rel.  aux  Cout.  de  Paris,"  1845,  the  renunciation  is  applied  in  one  paragraph, 
at  the  beginning,  to  movables,  and  in  another  paragraph,  further  on,  to  the 
jointly  acquired  property.  It  must  therefore  be  at  this  time  that  the  change 
takes  place;  the  noble  widow,  in  order  to  be  free  and  clear  of  the  debts,  should 
renounce  the  movables  and  the  acquests  at  one  and  the  same  time:  "A.  C, 
Bourg.,"  1  (Giraud,  II,  268);  "A.  C,  Berry,"  57  (renunciation  of  the  movables, 
jointly  acquired  property  and  debts).  Gkisson,  VII,  371:  in  1396,  in  Paris, 
the  renunciation  of  the  noble  wdfe  is  Hmited  to  her  former  effects.  "Fragm. 
d'un  repert.  de  jurispr.  Paris,  au  XV^  s.,"  p.  89,  cf.  p.  21.  Three  years 
later  it  assumes  a  much  more  general  form  before  the  Provost  of  Paris.  Finally 
the  "Cout."  of  1510,  Art.  115,  requires  that  the  renunciation  also  affect  jointly 
acquired  property. 

1  Italy :  the  Sardinian  and  Istrian  statutes  allow  the  renunciation  (Pertile,  III, 
357)of  the  acquests;  in  view  of  this  the  wife  protects  her  personal  belongings. 

2  It  was  possible  to  introduce  the  renunciation  and  the  benefit  of  emolu- 
ment for  the  benefit  of  commoners  by  means  of  special  clauses  which  be- 
came typical  ones  and  which  in  the  end  were  sanctioned  by  the  Customs: 
Dwnoulin,  on  "Montargis,"  8,  8;  Loysel,  396  (extended  to  include  the  heirs). 

^  Beaumnnoir,  13,  9,  declares  that  the  widow  can  choose  as  to  whether  she 
will  leave  all  the  movables  and  all  the  debts  to  the  heirs  of  her  husband  and 
take  her  dower  free  and  clear,  or  whether  she  will  take  her  share  of  the  movables 
and  debts.  He  does  not  make  any  distinction  between  the  noble  wife  and  the 
commoner.  On  the  other  hand  he  makes  no  allusion  to  the  share  of  the  jointly 
acquired  property  which  comes  back  to  the  widow  {cf,  14,  29).     Nor  is  there 

848 


Topic  4]  SYSTEMS   OF  COM-MUXITY  [§  567 

the  community  has  not  been  admitted  by  everybody,  but  we  think 
it  is  possible  to  draw  from  this  theory  a  conclusion  which  can  be 
correctly  applied  to  all  systems,  and  that  is  that  the  nobility 
as  a  class  showed  more  attachment  for  tradition  than  did  the 
commoners.  ^Vhen  the  community  right  was  substituted  for  the 
rights  by  survivorship  of  the  barbarian  period,  the  nobility  kept 
for  it  a  few  of  the  characteristics  of  the  latter,  —  a  thing  which 
was  all  the  more  natural  as,  had  it  not  been  for  this,  the  widow 
would  have  run  the  risk  of  losing  by  this  change. 

§  567.  Transactions  Previous  to  Partition;  Reinvestment  and 
Recompenses.  —  If  the  wife  accepts  the  community,  it  becomes 
necessary  to  arrange  this  divisible  mass^  by  distinguishing  the 
personal  belongings  of  each  spouse  from  the  possessions  owned 
in  common,  —  whether  they  exist  in  kind,  or  there  has  been  a 
reinvestment  —  that  is  to  say,  whether  they  have  been  replaced 
by  possessions  which  are  their  equivalent  —  or  whether,  finally, 
in  case  there  be  no  reinvestment,  it  is  necessary  first  to  deduct 
from  the  assets  of  the  community  recompenses  or  indemnities  for 
personal  belongings  which  may  have  been  alienated.-    The  theory 

any  question  as  regards  them  in  the  letters  of  1343,  in  Achery,  "Spicil.," 

III,  721.  "OUm,"  II,  240:  it  is  a  well-known  custom  of  the  Ile-de-France 
that  the  widow,  by  renouncing  Iier  share  of  the  movables,  escapes  from  the 
payment  of  the  debts  for  which  she  was  liable,  or  for  which  she  and  her  hus- 
band were  liable  (that  is  to  say  debts  of  the  community);  she  does  not  have 
to  pay  them  either  out  of  her  dower  or  out  of  her  "  hereditagium "  (does  this 
latter  word  only  mean  the  wife's  personal  belongings?  does  it  also  include 
her  share  of  the  jointly  acquired  property?  were  there  any  jointly  acquired 
possessions  included  in  the  schedule?).  The  matter  under  consideration 
refers  to  the  widow  of  Bouchard  de  Montmorency,  that  is  to  a  noble's  wife; 
but  the  argument  by  means  of  which  this  decision  is  justified  is  not  based 
upon  this  rank  of  a  noble  wife;  an  accepted  usage  is  relied  upon,  without  any 
mention  of  anything  which  might  lead  one  to  suppose  that  it  was  one  which 
applied  especially  to  nobles.  Cf.  "Quest."  131  of  J.  Lecoq,  and  the  other 
texts  cited;  Guilhiermoz,  op.  cit.  The  "A.  C,  Berry,"  57,  does  not  make  any 
distinction  either.  —  On  the  other  hand  only  the  wives  of  nobles  are  taken 
into  account  in  the"Gr.  Gout.,"  "Paris,  A.  C,"  115,  etc.:  "Et.  de  St.  Louis," 
I,  17;  "A.  C,  Artois,"  34;  "A.  C,  Picardie,"  ed.  Marnier,  p.  116;  "Coust. 
de  Verm.,"  §  238.  This  inconsistency  is  a  difficult  one  to  settle.  Benumanoir 
is  too  precise  for  us  to  have  any  right  to  imply  that  he  meant  only  to  speak 
of  the  noble  wife.  He  was  far  too  familiar  with  the  neighboring  Customs 
not  to  have  pointed  out  a  divergency  between  them  and  the  Custom  of  Beau- 
vaisis,  had  there  been  one.  Finally,  according  to  him,  one  cannot  assume 
that  there  are  divergences  in  the  law,  the  wives  of  commoners  having  lost 
the  right  of  renunciation,  and  having  regained  it  in  the  sixteenth  century. 

1  Ferriere,  on  "Paris,"  317;  Pothicr,  nos.  529,  537,  690.  Penalties  for 
embezzlement:  loss  of  the  right  of  renunciation  ("Gr.  Gout.,"  2,  29)  or  of 
the  advantage  of  emolument,  and  of  the  share  in  property  set  aside:  "Goust. 
de  Verm.,"  303;  Britz,  844;  Loysel,  133,  397;  Picot,  "Hist,  des  Etats  g<5n.," 

IV,  72;  "Arr.,"  of  Lamoignon,  29,  89. 

2  Same  transactions  in  case  of  renunciation,  for  the  wife  always  has  a 
right  to  her  personal  belongings. 

849 


§  567]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

of  recompenses  rests  upon  a  strict  distinction  between  the  in- 
heritances of  the  two  spouses  and  that  of  the  community.  It  can 
be  summed  up  in  the  principle  that  neither  one  of  them  should 
be  enriched  at  the  expense  of  the  other;  this  assumes  that  they 
each  have  their  own  special  accounts  and  their  assets  and  liabili- 
ties clearly  distinguished  from  one  another.  The  very  old  law 
knew  nothing  of  this  complication.  In  the  thirteenth  century 
there  was  no  question  either  of  "  reprisal  "  or  of  recompense.  It 
was  especially  in  cases  where  the  personal  belongings  were  alien- 
ated that  recompenses  were  due  from  the  community.  Now,  it 
was  formerly  the  principle  that  the  price  of  the  personal  belong- 
ing which  had  been  alienated  should  form  part  of  the  community 
by  way  of  movable  and  without  indemnity.  Thus  it  was  said  that 
"the  husband  should  get  up  three  times  in  the  night  in  order  to 
sell  the  property  of  his  wife."  ^  He  gained  the  power  of  disposing 
of  the  price,  just  as  of  other  communal  movables,  and  when  the 
partition  took  place  he  took  one-half  of  the  price.  Undoubtedly, 
alienation  was  not  possible  unless  the  wife  gave  her  consent ;  but 
how  many  times  did  she  not  yield  to  the  pressure  brought  to  bear 
upon  her  by  her  husband?  If  recompenses  due  from  the  com- 
munity to  the  spouses  were  not  known,  still  more  was  it  the  case 
with  regard  to  recompenses  due  from  the  spouses  to  the  community 
in  a  case  where  valuable  assets  were  taken  from  the  funds  of 
the  community  in  order  to  acquire  or  to  improve  personal  be- 
longings. In  so  far  as  the  husband  had  done  nothing  more  than 
make  use  of  his  powers,  he  was  free,  in  fact,  to  dissipate  the  pos- 
sessions of  the  community,  "a  fortiori,"  to  make  use  of  them  for 
his  own  advantage  or  for  the  advantage  of  his  wife. 

This  old  law  had  the  defect  of  attacking  the  principle  of  the 
preservation  of  personal  belongings  in  the  family  and  the  pro- 
hibition of  gifts  between  spouses.  It  could  only  have  been  per- 
mitted at  a  period  when  legislation  was  not  very  well  fixed  in  the 
direction  of  the  prohibition  of  gifts  between  spouses,^  as  witness 
the  usage  of  the  mutual  gift  and  the  benefit  resulting  from  the 
conferring  of  the  wife's  movables  upon  the  husband,  under  the  ex- 
clusive system  of  community,  and  of  the  mingling  of  the  movables 

•  "Gr.  Cout.,"  2,  32;  "L.  d.  Dr.,"  285;  "Lorraine,"  2,  16;  Loysel,  116 
(rule  which  has  been  discarded).  C/.  "T.  A.  C,  Bret.,"  215,  211.  —  The  prin- 
ciple: "res  succedit  in  locum  pretii  et  pretium  in  locum  rei":  Stobbe,  IV, 
274.  —  "Jostice,"  p.  242;  Fremont,  "Thdse,"   1899. 

2  Beaumanoir,  70;  "Montfort,"  149;  "Maine,"  334;  "Auvergne,"  14,  39 
and  46;  "Arr.,"  of  Lamoignon,  XXXII. 

850 


Topic  4]  SYSTEMS   OF  COMIMUNITY  [§  568 

of  the  spouses  under  the  regular  community  system.  In  time  new 
principles  came  to  be  introduced.  "By  means  of  a  clever  system 
of  reprisal  and  of  recompense,"  says  Gide,  "they  succeeded  in 
reconciling  these  two  irreconcilable  things,  the  mingling  of  the 
inheritances  of  the  spouses  and  the  preservation  of  each  one 
of  them  intact."  They  were  all  the  more  concerned  to  prevent 
reciprocal  gains  by  spouses,  to  which  the  system  of  com- 
munity indirectly  lent  itself,  because  they  were  not  freely  con- 
sented to,  and  because  the  spouses  had  sometimes  not  even  given 
ihem  an}'  thought,  and  thus  found  themselves  to  be  making  gifts 
without  knowing  it.  The  danger  was  especially  great  for  the 
wife;  in  fact,  the  husband  virtually  possessed  the  right  of  in- 
vesting the  community  possessions,  for  the  benefit  of  his  own 
personal  inheritance;  still  more  was  he  liable  to  abuse  his  in- 
fluence over  his  wife  in  order  to  induce  her  to  alienate  her 
personal  belongings. 

In  law  the  theory  of  recompense  may  be  of  service  to  the  hus- 
band; in  fact,  it  constitutes  a  new  guarantee  for  the  benefit  of  the 
wife,  a  means  of  protecting  her  against  her  husband,  an  essential 
part  of  that  system  of  counter-checks  which  goes  to  make  up  the 
community.  It  comes  to  light  in  some  few  cases  after  the  four- 
teenth century,  but  it  does  not  reach  its  full  development  until  the 
period  of  the  drawing  up  of  the  Customs.^ 

§  568.  The  Same.  —  (A)  Recompenses  due  from  the  Community, 
for  example,  movables  converted  into  money,  the  price  paid  for 
personal  belongings  alienated,  the  buying  back  of  rents  belonging 
to  one  of  the  spouses.^  ^  (I)  Movables  invested  as  a  Fund.  The 
investment  of  the  funds  of  the  marriage  portion,  that  is  to  say, 
their  conversion  into  immovables,  which  was  in  use  in  countries 
of  written  law,  here  furnishes  a  precedent  from  which  the  people 
in  the  countries  of  Customs  drew  their  inspiration.  In  1269  a 
charter  of  Saint  Louis  relating  to  the  marriage  of  his  niece,  Blanche 
d'Artois,^  sets  forth  that  a  part  of  the  marriage  portion  should  be 

1  Cf.  as  to  German  law,  Slobbe,  IV,  230. 

^  The  right  to  the  recompense  is  all  the  more  natural  in  this  case,  because 
the  rent  can  be  bought  back  in  spite  of  the  spouse  who  owns  it;  it  is  against 
his  will  that  his  personal  belongings  arc  changed  into  community  belongings. 
Consequently  this  can  be  extended  to  include  other  hypothetical  cases. 

^  Cf.  this  very  important  deed  in  L.  Delisle,  "M6m.  s.  les  op6r.  financie^res 
des  Templicrs,"  1889  ("Acad.  Inscr.,"  XXXIII,  2d  p.)  p.  105;  Jnmont, 
"These,"  p.  44  (cf.  investment  in  Brittany  before  the  end  of  the  thirteenth 
century);  J.  Lecoq,  q.  83:  it  is  a  matter  of  the  investment  of  the  funds  of 
the  marriage  portion  and  not  of  a  sum  of  money  given  by  the  husband  to  the 
wife;  Boerius,  "Dec,"  209;  Buche,  "N.  R.  H.,"  1884,  646. 

851 


§  568]  SYSTEM    OF   PROPERTY    BETW^EEN   SPOUSES  [Chap.  V 

deposited  at  the  Temple  in  Paris  in  order  to  be  invested  in  lands 
or  rents  through  a  relative  or  a  third  party  to  be  designated  in  the 
future;  the  remainder  should  be  paid  over  to  the  husband  to  dis- 
pose of  at  his  pleasure,  but  at  the  dissolution  of  the  marriage  he 
was  held  bound  to  restore  the  sum  which  he  had  received.  In  the 
first  case  the  reprisal  took  place  in  kind,  just  as  though  the  wife 
had  contributed  as  a  part  of  her  marriage  portion  the  immovable 
which  had  been  bought  out  of  its  funds.^  In  the  second  case,  one 
can  say  that  she  had  a  right  to  a  recompense  by  virtue  of  a  clause 
in  the  contract  of  marriage.-  The  right  of  the  wife  to  take  posr 
session  of  the  property  of  the  husband  until  she  should  have 
been  paid  was  often  stipulated  for;  in  this  way  the  payment  of 
the  recompense  was  assured.^  —  (II)  Reinvestment  ami  Recompense. 
(a)  Agreements  for  reinvestment  (frequent  from  the  fourteenth 
century).^  In  contracts  of  marriage  or  upon  the  alienation  of  a 
personal  belonging  it  could  be  agreed  that  the  price  should  be  in- 
vested with  the  object  of  obtaining  another  immovable,  which 
was  intended  to  be  subrogated  to  the  former  one,  —  that  is  to  say, 
to  take  its  place;  this  operation  was  too  much  like  an  investment 
of  the  funds  of  the  marriage  portion  not  to  be  looked  upon  as  law- 
ful. In  default  of  precedents  in  this  direction,  they  should  nat- 
urally have  been  led  to  the  idea  of  subrogation  by  the  simple  and 
practical  case  of  an  exchange;  the  reinvestment  is  in  the  last 
analysis  only  an  exchange  divided  into  two  distinct  acts,  separated 
by  a  longer  or  shorter  interval  of  time.  If  there  was  no  clause  of 
reinvestment,  the  spouse  had  no  right  originally  to  the  recovery 

*  The  husband  should  swear  when  he  withdraws  the  money  that  it  will 
be  used  without  fraud  to  pay  the  purchase  price  of  a  piece  of  land  which  has 
already  been  bought.  Cf.  "Gr.  Gout.,"  2,  32;  Lecoq,  83;  Loysel,  394;  Coquille, 
on  "Niv.,"  23,  12;  "Quest.,"  112. 

2  If  the  investment  had  not  been  made  at  the  time  of  the  dissolution  of 
the  marriage,  the  wife  could  take  back  the  amount  of  the  marriage  portion, 
according  to  the  Gharter  of  St.  Louis.  See  the  controversy  on  this  question 
in  J.  Lecoq,  83.  Id.,  "Amiens,"  1249,  Art.  70;  "N.  G.,  Paris,"  93;  Loysel, 
394.  —  "Arr.,"   of  Lamoignon,   29,   9. 

3  "OUm,"  II,  96,  31  (in  1277);  P.  de  Fontaines,  15,  8.  There  then  came 
into  existence  a  contract-lien  on  the  husband's  possessions  (either  over  all 
of  them,  or  over  some  of  them  only);  they  were  set  aside  to  be  used  for  the 
restoring  of  the  marriage  portion.  This  was  a  pubhc  nam  of  imrnovables 
which  was  carried  out  under  the  three  forms  of  sale  with  redemption,  the 
engagement  and  the  obligation.  See  §§  427,  428.  In  "Nivernais,"  23,  12, 
the  contract-lien  is  still  considered  as  a  sale  in  the  sixteenth  century,  and 
it  carries  with  it  transfer  of  ownership:  Loysel,  117.  Cf.  120;  Coquille, 
"Quest.,"  113.  Cf.  "Bourg.,"  4,  17;  Bouhier,  I,  167;  Ragueau,  see  "As- 
signal."  As  to  the  "  seat"  in  Brittany  and  the  "  consignment"  in  Normandy, 
Bee  Oilier,  "These,"  p.  110  (bibl.). 

*  "Melun,"  255;  "Sens,"  277;  "Auxerre,"  197,  etc. 

852 


Topic  i]  SYSTEMS   OF  COMMUNITY  [§  568 

of  the  price.^  (6)  Reinvestment  independent  of  all  agreement.- 
The  validity  of  the  reinvestment  was  now  not  made  dependent  on 
a  prehminary  contract;  from  the  fourteenth  century,  at  least,  this 
is  the  case.^  In  the  last  stage  of  the  old  law  reinvestment  was  pos- 
sible under  the  following  conditions:  1st.  A  declaration  upon  the 
acquiring  that  it  is  made  with  the  funds  resulting  from  the  aliena- 
tion of  a  personal  belonging,  and  that  it  is  made  in  order  to  take 
the  place  of  a  reinvestment.^  2d.  In  case  of  a  reinvestment  in 
the  interest  of  the  wife,  an  acceptance  by  her,  the  acceptance 
being  no  longer  possible  once  the  community  had  been  dissolved.^ 
(c)  Security  on  the  community  possessions  and  on  those  of  the  hus- 
band. Instead  of  proceeding  to  a  reinvestment,  on  acquiring 
of  property  belonging  to  third  parties,  the  husband  may  grant 
to  his  wife  the  jointly  acquired  property  of  the  community,  or 
even  certain  of  his  own  belongings,  for  the  price  of  the  personal 
belonging  which  has  been  alienated.®  Instead  of  making  her  a 
grant  in  ownership,  he  may  content  himself  with  conferring  upon 
her  a  security  on  these  possessions;    if  these  transactions  are 

1  In  his  "Qu.,"  1,  J.  Lecoq  asks  the  "pretium  rei  hereditariae  reputari 
debeat  hereditagium."  Equity  would  require  "pretium  loco  rei  succedit"; 
the  custom  is  otherwise. 

2  The  reinvestment  clause  served  to  give  a  right  to  a  recompense;  when 
this  right  was  recognized,  even  if  there  were  no  agreement  to  that  effect,  it 
allowed  the  wife  to  ask  for  separate  maintenance,  if,  because  the  agreement 
should  not  have  been  carried  out  her  marriage  portion  was  found  to  be  in 
danger  of  being  lost. 

'  "Gr.  Gout.,"  p.  321:  the  husband  declares  before  the  judge  that  he  is 
about  to  buy  a  piece  of  land  to  take  the  place  of  his  personal  belonging  which 
he  has  alienated;  if  this  declaration  is  made,  the  new  inheritable  piece  of  prop- 
erty will  not  be  a  piece  of  jointly  acquired  property.     "Jostice,"  p.  242. 

"*  Lebrun,  3,  2,  1,  2,  69.  But  c/.  Pothier,  no.  198;  "Arr.,"  of  Lamoignon, 
29,  53. 

5  Duplessis,  1,  p.  447.  Cf.  the  Civil  Godc,  1425.  The  property  having 
been  left  at  the  community's  risk,  it  would  hardly  be  equitable  for  the  wife 
to  be  able  to  take  away  from  the  community  the  advanUiges  resulting  from 
any  increase  in  value  which  may  have  taken  place.  If  it  were  made  at  the 
right  time,  the  wife's  acceptance  had  a  retroactive  effect:  D'Aguesseau,  27th 
"plaid";  Pothier,  no.  200.  Cf.  Labbe,  "Ratific.  des  actes  d'un  gerant 
d'affaires,"  185Q.  — Bacquet,  "Dr.  de  just.,"  XXI,  300. 

"  With  the  price  received  from  the  alienation  of  one  of  the  personal  belong- 
ings, the  husband  acquired  an  immovable,  and  after  having  done  so  he  made 
a  declaration  of  reinvestment  (instead  of  making  it  at  the  time  of  acquiring). 
There  thus  took  place  a  transformation  of  a  piece  of  jointly  acquired  j)roperty 
into  a  personal  belonging  without  third  parties  having  any  notice  given  them; 
the  retroactiveness  which  would  have  in  the  meanwhile  caused  establisheil 
rights  to  accrue  to  the  advantage  of  third  parties  could  therefore  not  be  rec- 
ognized. Cf.  Lebrun,  p.  372;  Louet,  "R.,"  .30;  Le  Prcsire,  II,  83.  —  In  favor 
of  retroactivity  are  cited:  Dumoulin,  on  "Jiourb.,"  238,  and  "Blois,"  264. 
This  last  text  merely  establishes  the  right  of  the  wife  to  a  recompense:  Gun 
Coquille  on  "Niv.,"  rights  of  married  persons,  art.  12;  Loyseau,  "Deguerp.," 
I,  8;  cf.  "Lorraine,"  2,  16;  Bassigny,  47;  Loysel,  117,  120. 

853 


§  568]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

allowed  for  the  investment  of  the  funds  of  the  marriage  portion, 
it  is  hard  to  see  why  they  should  be  forbidden  in  the  ease  of  rein- 
vestment.^ (d)  Dumoulin  maintains  in  the  sixteenth  century  that 
the  husband  was  authorized  to  acknowledge  afterwards  the  right 
of  the  wife  to  a  recompense  independent  of  any  contract  of  re- 
investment or  of  security,  (e)  Finally,  the  Custom  of  Paris  of 
1580,  Art.  232,  sanctioned  ^  the  right  of  the  wife  to  a  recom- 
pense, a  legal  reinvestment  or  "  reprisal  "  in  the  absence  of  any 
contract  or  recognition  on  the  part  of  the  husband.^  Its  rule  was 
extended  by  the  courts  to  those  Customs  which  were  silent  or 
even  hostile. 

The  principle  of  reprisal  once  having  been  admitted,  the  courts 
had  to  determine  upon  the  manner  in  which  it  should  be  exer- 
cised. Various  systems  were  suggested,  —  that  of  the  implied 
security  on  the  jointly  acquired  property  of  the  community, 
and,  in  default  of  this,  of  the  personal  belongings  of  the  hus- 
band;'* that  of  the  "  half-funds,"  which  made  an  ordinary  claim 
of  one-half  of  the  part  retained  for  the  wife;  ^  and,  finally,  that 
of  "previous  deductions,"  which  prevailed.^    The  wife,  before 

1  On  238  "Bourb.";  "Blois,';  164. 

2  If  it  is  one  of  the  wife's  immovables  which  is  alienated  she  stipulates 
that  the  husband  shall  invest  the  price,  "Olim,"  I,  149,  4  (reinvestment 
in  his  own  inheritable  property  in  kind),  or  else  she  demands  that  her  husband 
promise  her  an  indemnity  to  be  previously  deducted  from  the  community. 
J.  Lecoq,  q.  1.  From  before  the  time  of  the  reforming  of  the  "  Cout.  de  Paris," 
there  were  Orders  wliich  adjudged  that  the  recompense  must  legally  be  given 
for  rents  of  the  wife's  which  were  bought  back.  It  was  also  thought  advisable 
to  stipulate  in  marriage  contracts  that  all  the  personal  belongings  of  the  wife 
without  any  distinction  should  be  reinvested;  there  was  no  desire  to  make 
a  purchase  of  inheritances  obligatory,  but  merely  to  reserve  a  recompense. 
It  was  this  clause  which  had  become  a  typical  one,  which  the  "Cout.  de 
Paris"  impHed  (1580,  232). 

'  Art.  232;  Louet,  "R.,"  30;  Remisson,  "Propres,"  4,  3,  5  (Orders  of  1574, 
1579). — Some  of  the  Customs,  however,  still  excluded  the  reinvestment, 
if  it  were  not  stipulated  for:  "Blois,"  164;  "Lorraine,"  2,  16;  "Bassigny," 
46,  etc.;  "Arr.,"  of  Lamoignon,  29,  90. 

^  Louet,  "R.,"  30;  Pocquet  de  Liv.,  "Fiefs,"  3,  5,  3.  Cf.  Charondas,  1, 
p.  367.  The  jurisprudence  of  the  seventeenth  century  rejected  this  system 
under  the  pretext  that  subrogation  was  a  narrow  interpretation  of  the  law: 
Rousseau  de  Lac,  "Remploi."  In  reality  it  was  because  the  mortgage  had 
taken  the  place  of  the  contract-lien. 

^  The  possessions  of  the  community  are  divided  into  halves  between  the 
spouses.  Each  one  taking  half  of  the  community  paid  themselves,  because 
of  the  mingling  of  the  property,  one-half  of  their  claim.  As  to  the  other 
half,  each  spouse  was  a  creditor  of  the  other  (the  wife  having  a  mortgage). 
The  claim  at  maturity  became  part  of  another  community,  being  treated 
as  a  movable.  With  this  system  the  recourse  and  actions  between  the  spouses 
were  too  numerous:  "T.  A.  C,  Bret.,"  217,  218,  2.30;  Loysel,  381. 

*  The  system  of  half-funds  recalls  the  time  when  there  were  no  recompenses. 
The  system  of  previous  deductions  for  the  benefit  of  the  wife  may  be  con- 
sidered as  a  simple  method  of  payment  instituted  for  greater  simplicity  in 

854 


Topic  4]  SYSTEMS   OF   COMMUNITY  [§  568 

any  partition,  deducted  from  the  community  specific  things  rep- 
resenting a  value  corresponding  to  the  amount  to  which  she  had  a 
right;  if  the  community  possessions  were  not  sufficient,  she  could 
then  take  them  out  of  the  inheritance  of  the  husband.  Upon 
his  side,  the  husband  only  exercised  his  right  of  reprisal  on 
that  which  was  left  of  the  community  after  the  wife  had  been 
paid;  he  was  never  allowed  to  take  the  personal  belongings  of  the 
wife  (even  by  virtue  of  a  special  clause).  In  this  respect  the  wife 
thus  found  herself  more  favored  than  the  husband,  a  new  measure 
of  protection  in  her  favor.^  If  she  was  placed  before  the  husband, 
should  she  not  also  be  preferred  to  the  creditors  of  the  community 
in  the  exercise  of  these  reprisals?  Reinvestment  assured  her  this 
preference,  for  the  possessions  which  were  acquired  by  force  of 
the  reinvestment  were  substituted  for  her  personal  belongings 
which  had  been  alienated;  she  was  regarded  as  having  always 
possessed  it,  and  this  fiction  put  to  one  side  the  creditors  of  the 
community.  If  there  were  no  reinvestment  she  could  not  call 
herself  owner;  she  could  only  present  herself  in  the  quality  of  a 
creditor  to  the  amount  of  her  personal  belongings,  and  as  such  she 
came  in  at  so  much  in  the  pound  with  the  creditors  of  the  com- 
munity. Over  the  community  movables  she  was  not  recognized  as 
having  any  lien ;  ^  but  there  was  nothing  to  prevent  her  from 
taking  advantage  of  her  mortgage  over  the  jointly  acquired  prop- 
erty of  the  community  and  the  personal  belongings  of  the  husband, 
so  as  to  precede  those  of  the  creditors  whom  she  could  rank. 

the  interests  of  the  spouses  themselves,  in  order  to  avoid  the  sale  of  their 
possessions.  It  was  also  sought  to  account  for  it  by  saying  that  the  wife 
acted  more  as  an  owner  than  as  a  creditor;  a  "greater  right  over  the  com- 
munity" was  spoken  of;  but  the  very  vagueness  of  this  expression  shows  that 
the  theory  under  which  it  is  made  use  of  is  scarcely  well  fovmded.  Pothier, 
"Succ,"  5,  1,  sees  in  it  a  new  opinion.  Interest:  tliis  right  will  be  movable 
or  immovable  according  as  the  taking  back  affects  movables  or  immovables; 
it  ^ill  go,  according  to  circumstances,  to  the  heir  of  the  movables  or  to  the 
heir  of  the  immovables;  finally  the  wife  shall  be  preferred  in  her  claims  over 
the  community  movables  even  to  the  creditors  of  the  community:  Esmein, 
"R.  crit.,"  1877  (and  authors  cited),  p.  83;  Pothier,  "Fiefs,"  459:  previous 
deductions  did  not  give  rise  to  the  collection  of  the  assessment  of  one-fifth. 

1  The  "Cout.  de  Paris"  was  silent  with  regard  to  this.  But  these  privi- 
leges had  been  introduced  in  practice,  by  way  of  compensation,  for  the  benefit 
of  the  woman,  because  of  the  dependent  position  in  which  she  was  placed 
with  respect  to  her  husband.  She  treated  him  in  the  same  manner  as  a 
minor  treated  his  guardian  (cf.  mortgage):  Rcnusson,  "Propres,"  IV,  4,  4; 
Lebrun,  III,  2,  1,  2,  66.  It  was  not  so  much  the  liquidation  of  a  partnership 
as  the  rendering  of  an  account  to  a  person  under  a  disability  by  his  manager. 

2  Pothier,  ,58.^,  701  (previous  deduction  of  the  sum  at  which  the  recaption 
was  valued);  Dejiisnrt,  see  "Dot,"  25,  6  (ed.  of  1788)  (the  wife  has  no  privilege 
over  the  movables);  "Actes  du  Chatelet,"  1711  and  1745;  Pont,  "R.  crit.," 
1854,  p.  556  et  seq.  (authors  cited).     Cf.  "Blois,"  164. 

855 


§  569]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

§  569.  The  Same.  —  (B)  Recompenses  due  from  the  Spouses  to 
the  Community.^  It  often  happened  that  the  inheritance  of  the 
spouses  was  enriched  at  the  expense  of  the  community ;  it  was  with 
the  money  of  the  community  that  they  made  acquisitions,  and 
that  they  made  improvements  upon  their  personal  belongings, 
because  the  spouses  could  not  have  sums  of  money  or  objects 
which  belonged  to  them  individually.  But  this  enrichment  did 
not  seem  of  such  a  nature  as  to  be  the  basis  for  a  right  to  the 
recompense;  when  the  husband  could  dissipate  the  community 
possessions  it  mattered  little  whether  he  made  use  of  them  in  his 
own  interest  or  that  of  his  wife.  Yet  though  there  was  no  recom- 
pense, analogous  results  were  arrived  at  in  certain  special  cases. 
Thus,  when  one  of  the  spouses  exercised  the  right  of  the  repur- 
chase by  a  person  of  the  same  lineage,  and  to  carry  it  out  made 
use  of  the  community  funds,  the  immovable  which  was  acquired 
came  into  the  community  in  the  quality  of  jointly  acquired  prop- 
erty; the  spouse  who  was  of  this  same  lineage  only  obtained  it 
upon  the  dissolution  of  the  marriage  and  by  the  exercise  of  an- 
other repurchase,  which  was  called  that  of  the  "half-funds."^ 
He  paid  the  other  spouse  a  half  of  the  price  which  had  been  paid 
out.  The  result  was  the  same  as  though  there  had  been  a  recom- 
pense made  to  the  community.  The  immovable  finally  came  to 
be  looked  upon  as  a  personal  belonging,  and  no  longer  as  a  piece 
of  property  jointly  acquired.  The  idea  of  the  recompense  was 
thenceforth  accepted  without  difficulty.  One  can  say  as  much  of 
the  case  where  one  of  the  spouses  bought  out  a  rent  which  en- 
cumbered one  of  his  personal  belongings.  The  community  which 
paid  for  the  repurchase  was  looked  upon  as  acquiring  the  rent. 
The  latter  existed  as  a  piece  of  property  jointly  acquired.  When 
the  community  was  dissolved,  the  rent  was  divided  between  the 
two  spouses,  and  the  debtor  found  himself  under  the  alternative 
of  paying  half  of  the  arrears  to  the  other  spouse  or  of  paying  back 
one-half  of  the  rent.  It  would  have  been  more  simple  to  say  that 
the  personal  belonging  had  been  released,  and  that  the  rent  had 
been  extinguished.  This  is  what  the  parties  really  intended,  and  in 
order  to  obtain  this  result  it  was  only  necessary  to  pay  a  recom- 
pense to  the  community.  They  did  not  yet  dare  to  go  so  far  as 
this  in  the  Custom  of  Paris  in  1580;  the}^  did,  indeed,  admit 
that  the  land  was  freed,  but  they  decided  that  a  new  rent  was 

1  Desmares,  152;  Loysel,  391;  "Paris,"  244  et  seq.;  Pothier,  no.  613. 

2  Beaumanoir,  14,  20;  44,  48;  "Arr.,"  of  Lamoignon,  29,  42. 

856 


Topic  4]  SYSTEMS   OF  COIMMUNITT  [§  570 

created,  —  half  of  the  amount  of  the  former  one.^  Thus  it  was 
thdt  they  came  gradually  to  establish  recompenses  against  the 
spouses  in  case  they  acquired  personal  belongings  with  the  funds 
of  the  community.  In  the  case  of  the  improvement  of  personal 
belongings,^  the  idea  of  the  recompense  rested  upon  the  fact 
that  the  husband  was  acting  in  fraud  of  the  rights  of  his  wife,  or 
upon  the  desire  to  forbid  indirect  enrichment  between  the  spouses. 
The  jurists  by  way  of  generalizations  laid  down  the  two  follow- 
ing rules :  a  recompense  is  due  every  time  the  spouses  have  en- 
riched themselves  at  the  expense  of  the  community;  ^  the  amount 
of  the  recompense  is  equal  to  the  profit  realized  by  the  spouse  (if 
it  is  of  greater  value)  or  to  the  sum  paid  out  by  the  community ;  to 
put  it  better,  to  whichever  of  these  two  amounts  is  the  smaller.'* 

§  570.  Partition.  —  (A)  Assets.  As  a  general  thing,  partition 
took  place  by  halves  ^  between  the  husband  and  the  wife  or  their 
heirs.  But  this  rule,  however  natural  it  may  seem  to  us,  was  es- 
tablished with  some  diflSculty;  until  the  end  of  the  old  law  special 
agreements  were  frequently  made  in  derogation  of  it.  Thus,  par- 
tition sometimes  did  not  take  place  until  there  had  been  children 
of  the  marriage;  if  there  were  no  children,  the  surviving  spouse 
kept  the  entire  community.^  Or,  again,  he  was  given  the  whole 
of  the  movables  and  a  share  of  the  immovables.  One  method  of 
partition  which  was  very  widespread  was  that  which  consisted  in 
only  giving  the  wife  or  her  heirs  a  third  of  the  community  posses- 
sions.^ These  old  practices,  which  had  disappeared  as  a  general 
thing  from  the  French  Customs,  persisted  under  the  form  of  agree- 

1  "Gr.  Gout.,"  p/324;  "A.  C,  Paris,"  119;  "N.  G.,"  244;  Loysel,  392; 
"  Arr.,"  of  Lamoignon,  29,  41. 

2  "T.  A.  G.,  Bret.,"  215:  recompense  for  the  improvement  of  lands  held 
by  commoners.  —  Contra,  "Et.  de  St.  Louis,"  I,  16. 

3  The  powers  of  the  husband  are  also  found  to  be  limited  by  this  means. 
Cf.  marriage  portion  of  a  child  of  both  spouses  or  of  a  child  of  the  first  mar- 
riage consisting  in  the  community  property:  Lebrun,  2,  2,  1,  15;  Pothier,  656; 
"Arr.,"  of  Lamoignon,  29,  28  (preservation  of  the  personal  belongings). 

*  Pothier,  636.  The  community  carmot  be  treated  like  a  banker  who  de- 
mands the  exact  sum  he  has  loaned. 

6  Stobbe,  IV,  231,  cf.  229. 

8  Also  right  of  succession  of  the  survivor,  ib.,  285.  Glause  by  which  the 
survivor  has  the  enjoyment  of  the  community:  Argou,  III,  9;  "Gout,  de 
Diesse  "  25  5. 

7  "blim'"  "ll,  74,  10  (in  1276);  "T.  A.  G.,  Bret.,"  217,  42:  partition  by 
thirds  among  commoners,  the  children  taking  the  share  of  the  dead  besides 
their  third;  Loysel,  385.  Sicilian  statutes,  "Messina,"  1,  9,  49;  "Palermo," 
45;  "Gatana,"  3,  16,  etc.;  Pertile,  III,  358.  Scandinavian  law:  D'Oiiverrona, 
p.  i08  et  seq.  Bonvalot,  "Gout,  de  Lorr.,"  p.  47,  95;  "  Gout,  de  Ferette"  (Upper 
Alsace),  XVI  (cf.  Guijot);  Viollet,  p.  775;  D^glin,  "Thcise,"  1883,  p.  108; 
Stobbe,  IV,  231.  In  Liibeck  the  husband  can  by  last  will  reduce  the  wife's 
share. 

857 


§  570]      SYSTEM  OF  PROPERTY  BETWEEN  SPOUSES    [Chap.  V 

ments.  For  example,  they  would  agree  that  the  wife  should  only 
bear  one-third  of  the  joint  expenses,  or  that  her  heirs  would  only 
have  a  certain  sum  in  lieu  of  all  their  rights  over  the  community 
("forfeit  of  the  community").^  Similar  clauses  to  these,  which 
were  fixed  by  tradition  in  certain  localities,  were  consequently 
considered  as  marriage  agreements,  and  not  as  gifts  which  were 
prohibited.  They  were  justified  by  saying  that  the  inequality  of 
the  shares  was  due  to  the  fact  that  the  industry  or  the  estate 
brought  by  one  of  the  spouses  was  of  more  importance.  Only  a 
few  of  these  clauses  were  done  away  with,  and  they  were  the  ones 
which  would  have  been  too  much  against  the  spirit  of  the  new 
law,  —  for  example,  the  conferring  of  the  entire  community  upon 
the  surviving  spouse;  ^  this  was,  in  fact,  the  denial  of  the  idea  of  a 
partnership  and  a  survival  of  the  exclusive  system  of  community. 
One  of  the  most  frequent  clauses  was  the  stipulation  for  a  "  refer- 
ence-legacy made  by  agreement."  ^  It  was  obviously  derived 
from  the  old  custom  of  conferring  certain  possessions  outside  of 
his  share  upon  the  surviving  spouse,  such  as  the  weapons  and  the 
horses  of  the  husband,  the  dresses  and  the  jewels  of  the  wife.  An- 
other archaic  remnant:  the  "legal  reference-legacy  of  the  noble 
spouse."  ^  According  to  the  Custom  of  Paris,  238,  if  there 
were  no  children  the  surviving  spouse  who  was  a  noble  had  the 
power  to  previously  deduct  all  the  community  movables,^  being 
charged  with  the  payment  of  the  debts  of  the  community  and  with 
bearing  the  expenses  of  the  funeral  of  the  predeceased  spouse.® 
The  "Grand  Coutumier  de  France,"  2,41,  seems  to  see  in  this  the 
counterpart  of  the  nobleman's  lease  or  custody;  the  surviving 
spouse  took  all  the  movables  by  right  of  being  a  guardian  if  there 

1  "Olim,"  III,  860,  39.  CJ.  Bannelier,  on  Davot,  VII,  160;  "Arr.,"  of 
Lamoignon,  29,  4,  7. 

2  Britz,  858  ("mainplevie"  at  Liege);  Stohhe,  IV,  231,  242. 

3  "T.  A.  C,  Bret.,"  207;  "A.  C,  Picardie,"  p.  110;  Glasson,  VII,  379  (Stras- 
bourg), etc.;  Stobbe,  IV,  101. 

*  Bonvalot,  "Cout.  du  d.  de  Lorraine,"  p.  37:  all  the  movables  devolve 
upon  the  survivor  whether  a  noble  or  a  commoner;  Stobbe,  IV,  231,  242. 

6  Excepting  those  situated  in  Paris  (beginnings  of  a  reaction  against  the 
reference-legacy).  Cf.  Pothier,  no.  428.  As  to  claims  opinion  was  divided, 
cf.  "A.  C,"  131;  "N.  C,"  231. 

*  Can  the  surviving  spouse,  after  having  accepted  the  legal  reference- 
legacy,  give  up  his  emolument  in  order  to  escape  having  to  pay  the  debts? 
There  were  some  who  said  not,  comparing  him  to  the  nobleman  guardian 
who,  having  accepted  the  guardianship,  is  held  liable  for  the  debts  of  the 
minor,  even  those  which  are  "ultra  vires,"  and  cannot  escape  them  by  giving 
up  the  emolument  connected  with  the  guardianship.  Pothier,  no.  439,  was 
not  of  this  opinion;  from  his  point  of  view  the  beneficiary  of  the  reference- 
legacy  was  a  mere  donee,  and  it  is  a  recognized  principle  that  the  donee  is 
only  held  Hable  up  to  the  amount  of  his  emolument. 

858 


Topic  4]  SYSTEMS   OF  COMMUNITY  [§571 

were  children,  and  by  virtue  of  the  reference-legacy  if  there  were 
none.^ 

§  571.  The  Same.  —  (B)  Liabilities.  The  debts  of  the  com- 
munity were  divided  in  the  same  way  as  the  assets,  —  so,  as  a 
general  thing,  by  halves,  (a)  Execution  by  the  creditors.  1st. 
The  husband  can  be  levied  on  for  all  debts  contracted  in  his  own 
right  and  chargeable  upon  the  community.^  As  to  the  debts 
which  were  contracted  in  the  right  of  the  wife,  debts  previous  to 
the  marriage,  or  due  through  inheritances  which  had  accrued  to 
the  wife  during  the  marriage,  there  was  a  difference  of  opinion. 
Some  who  were  more  true  to  the  old  principles  of  the  matrimonial 
system  treated  these  as  the  debts  of  the  husband ;  others,  on  the 
contrary,  inspired  by  more  recent  conceptions,  said  that  the  hus- 
band was  only  held  in  his  status  of  a  community  owner  of  pos- 
sessions and  could  only  be  sued  for  half  of  them.  We  have  already 
come  across  a  difficulty  of  this  nature  with  regard  to  debts  con- 
tracted by  the  wife  with  the  authority  of  her  husband.  2d.  The 
wife  here  enjoys  a  new  privilege:  she  has  the  benefit  of  emolument.^ 
At  first  she  could  only  be  sued  to  the  extent  of  her  half  for  debts 
contracted  in  the  right  of  her  husband  chargeable  upon  the  com- 
munity. Later  on  she  was  not  even  under  the  necessity  of  paying 
this  half  when  she  was  asked  for  more  than  the  amount  which  she 
had  withdrawn  from  the  community;  she  could  be  cleared  with 
respect  to  the  creditors  by  giving  up  to  them  her  "emolument." 
It  was  not  the  same  with  respect  to  debts  contracted  in  her  own 
right;  as  she  had  personally  bound  herself,  she  could  be  sued  for 
the  whole  amount,  even  if  she  made  a  renunciation.*  The  benefit 
of  emolument  does  not  seem  to  have  been  known  before  the  six- 
teenth century.^    It  was  especially  useful  in  the  Customs  which 

'  It  might  be  thought  that  this  could  be  accounted  for  by  the  employraont 
of  reference-legacies  established  by  agreement;  but  if  this  were  so,  then  why 
should  it  have  been  peculiar  to  the  noble  spouse?  By  making  it  depend, 
as  we  do,  on  the  old  tendencies,  it  is  more  readily  understood;  this  anomaly, 
imder  the  community  system,  only  exists  among  the  class  of  nobles,  that 
is  to  say  where  there  was  the  greatest  difficulty  in  having  the  community 
accepted. 

2  Cf.,  however,  Bacquet,  "Dr.  de  Justice,"  c.  21. 

3  "Paris,  N.  C,"  228;  "Orleans,"  187.  — Contra:  "Ass.  de  Jdr.,"  "C. 
des  B.,"  191;  "Bourg.,"  cf.  Bannelier,  on  Davot,  VII,  332. 

*  Loysel,  398. 

5  Perhaps  it  was  introduced  under  the  form  of  agreements  and  clauses 
which  were  practical.  After  1513,  Papon,  "Arr.,"  15,  1,  no.  25,  there  were 
Orders  which  applied  it  in  the  absence  of  any  clause,  in  spite  of  the  silence 
of  the  Custom:  CoquiUe  on  "Niv.,"  23,  7  ((Drder  of  1567).  These  Orders 
only  took  into  account  commoners.  The  "N.  C,  Paris,"  228,  made  it  a  law- 
ful right  of  all  wives  without  distinction,  whether  they  were  noblewomen  or 

859 


§  571]  SYSTEM   OF   PROPERTY   BETTV^EEN  SPOUSES  [Chap.  V 

refused  to  give  the  wife  the  right  of  renouncing.^  But  it  was  in- 
troduced even  elsewhere  and  became  general,  either  in  imitation 
of  the  benefit  of  inventory  with  regard  to  inheritance,  or  finally  in 
order  better  to  assure  the  preservation  of  personal  belongings  in 
case  the  wife  made  an  unwise  acceptance.  Originally,  the  wife 
who  wished  to  make  use  of  this  benefit  had  to  provide  herself  with 
royal  letters;  but  it  was  not  long  before  courts  were  content 
with  the  making  out  of  an  inventory .^  (6)  Contribution  to  debts. 
Once  the  creditors  had  been  paid,  there  had  to  be  a  final  settle- 
ment between  the  spouses,  so  as  to  have  each  one  bear  half  of  the 
community  debts,  whatever  may  have  been  their  origin.  But 
here  again  the  wife  could  set  up  against  her  husband  the  benefit 
of  emolument;  the  latter,  or,  rather,  his  heirs,  could  not  compel 
her  to  bear  community  liabilities  beyond  the  amount  which  she 
had  withdrawn  from  the  community.  She  had  recourse  against 
them  for  everything  which  she  had  paid  beyond  this. 

§  572.  The  Married  Woman's  Mortgage.  —  Besides  the  privi- 
leges and  guaranties  which  have  been  dealt  with,  the  courts 
granted  to  the  wife  a  general  mortgage  over  the  possessions  of 
her  husband.  This  mortgage  was  of  Roman  origin.  Admitted  in 
very  old  times  in  countries  of  written  law,  it  seems  only  to  have 
been  recognized  in  countries  of  Customs  in  the  sixteenth  century.^ 
At  this  time  it  was  introduced  without  difficulty  by  virtue  of  the 
principle  that  every  notarial  deed  meant  a  general  mortgage;  the 
marriage  contract,  being  drawn  up  most  of  the  time  in  the  form  of 
a  notarial  deed,  a  mortgage  dating  from  the  execution  of  the  deed 
arose  therefrom  for  the  benefit  of  the  wife.  It  was  equally  ad- 
mitted that  the  mortgage  would  have  existed  if  there  had  been  no 
contract;  but  then  it  no  longer  had  the  same  date,  it  only  dated 
from  the  celebration  of  the  marriage.  It  guaranteed  all  the  claims 
of  the  wife,  —  dower,  marriage  portion  funds,  reference-legacy, 

commoners.  By  reason  of  this  they  found  themselves  in  the  same  position 
as  a  silent  partner  or  partner  with  a  limited  responsibility.  It  was  no  more 
permissible  to  deprive  oneself  of  the  advantage  of  the  emolument  by  mar- 
riage contract  than  of  the  power  of  renunciation. 

1  "Orleans,  A.  C,"  1509,  Art.  167,  188;  Brillon,  "Diet,  des  Arr.,"  II,  263; 
Dumaulin  on  "Poitou,"  259,  no.  28. 

2  Boucheul,  on  "Poitou,"  239,  no.  29;  Coquille,  on  "Niv.,"  34,  28;  Pothier, 
VIII,  127. 

*  Loysel,  497;  "T.  A.  C,  Bret.,"  207  (there  is  no  question  of  the  wife's  mort- 
gage because  of  what  she  takes  back).  See  ante,  p.  759,  note  2:  texts  which 
take  into  account  the  implied  mortgage  or  assignment  arising  because  of 
the  existence  of  dower,  in  the  fourteenth  century;  "Gr.  Gout.,"  2,  32  (but 
contra,  17),  p.  321;  "A.  G.,  Anjou,"  ed.  B.-B.,  I,  197;  cf.  as  to  the  assignment, 
"Niv.,"  23,  8;  "Bourb.,"  248;  D'Argentre,  on  "Bret.,"  410,  3,  4. 

860 


Topic  4]  SYSTEMS   OF  COIDHUNITY  [§  572 

and  recompenses.  Although  on  principle  she  only  had  one  and 
the  same  date  for  these  various  claims  (by  analogy  of  guardian- 
ship, "initium  garendpe  administrationis ")  at  the  same  time  one 
already  finds  in  the  Customs  and  in  the  decisions  attempts  at  a 
classification  of  them;  thus  with  regard  to  the  claim  for  the  price 
of  a  personal  belonging  which  has  been  alienated,  or  for  the  in- 
demnity because  of  an  engagement  entered  into  with  the  hus- 
band, they  tried  to  give  the  mortgage  the  same  date  as  these 
claims,  —  that  is  to  say,  the  date  of  the  alienation  ^  or  of  the  en- 
gagement.^  In  giving  her  consent  to  the  alienation  of  the  hus- 
band's possessions  the  wife  could  renounce  the  right  to  invoke 
her  mortgage  over  the  possessions  which  had  been  alienated,^ 
which  meant  that  the  protection  which  had  been  established  in 
her  favor  (very  serious  in  appearance  and  very  annoying  for  the 
husband,  whose  credit  it  might  ruin)  ran  the  risk  of  being  of 
scarcely  any  effect.  Yet  the  wife  who  lived  in  community,  thus 
differing  from  the  wife  who  had  a  marriage  portion,  was  free  to 
alienate  her  personal  belongings  and  free  to  give  up  her  mortgage. 
It  was  even  proposed  to  allow  her  to  grant  the  benefit  of  this  mort- 
gage to  the  creditors  of  the  husband,  to  subrogate  third  parties  for 
herself.*  What  did  it  matter,  to  those  against  whom  this  mortgage 
was  set  up,  whether  it  was  the  wife  who  exercised  it  or  another 
person  in  her  stead  ?  In  any  case  the  creditors  of  the  wife  who  had 
a  general  mortgage  over  her  possessions,  and,  in  consequence,  a 
mortgage  on  her  mortgage,  received,  in  the  order  which  was 
settled  for  the  distribution  of  the  price  of  the  husband's  posses- 
sions, the  dividend  to  which  the  wife  had  a  right;  and  they  divided 
it  up  among  themselves  by  means  of  the  complicated  proceeding 
of  subdistribution.^ 

1  "Bret.,"  439;  "Norm.,"  539,  542;  Pothier,  "Douaire,"  no.  343. 

2  Parliament  of  Paris  of  1702,  1740,  1742  ("Lyonnais,"  etc.);  Bannelier, 
on  Davot,  VII,  25. 

'  Pothier,  IX,  477.  —  There  was  in  this  a  sort  of  co-obligation,  which  was 
contrary  to  the  Velleianum  Senate  Decree.  D'Argentre,  on  "Bret.,"  409,  "gl.," 
3,  no.  2  et  seq.,  criticises  the  employment  of  the  renunciation.  But  this  re- 
nunciation allowed  the  wife  to  take  part  in  the  affairs  of  the  community. 
In  our  day  practice  in  developing  the  tendencies  of  the  old  law,  "has  made 
of  it  a  true  '  means  of  credit '  at  the  disposal  of  the  wife  and  the  principal  ele- 
ment of  her  influence  in  the  household." 

*  Those  who  had  dealings  with  the  husband  would  ask  that  the  wife  should 
also  become  bound,  by  giving  a  mortgage  on  her  possessions;  by  this  means 
they  benefited  by  the  wife's  mortgage  over  the  property  of  her  husband. 

^  This  procedure  of  Sub-Orders,  which  was  in  use  as  early  as  the  seven- 
teenth century  in  the  Parliament  of  Paris,  was  confirmed  by  the  Ordinance 
of  the  30th  Dec,  1681:  Pothier,  no.  766;  "Prov.  civ.,"  nos.  585,  6.56;  HMcourt, 
"Vente  des  imm.,"  11,  14;  Code  of  Civil  Procedure,  775  (suppression). 

861 


§573] 


STATUS   AND    CAPACITY    OF   PERSONS 


[Chap.  VI 


CHAPTER  SIX 
STATUS  AND  CAPACITY  OF  PERSONS 

Topic  1.  Certificates  of  Civil  Status. 
Topic  2.  Persons  under  a  Disability. 
Topic  3.   Legal  Persons. 


Topic  1.    Certificates  of  Civil  Status 


§  573.  Early  Methods  of  Proofs. 

§  574.  Certificates  of  Religious  Status. 

§  575.  Certificates  of  Civil  Status. 


§  576.  Secularization  of  Certificates  of 
Civil  Status. 


§  573.  Eaxly  Methods  of  Proofs.  —  We  have  not  always  had 
special  methods  of  proof  for  birth,  marriage,  and  death,  that  is 
to  say,  for  the  principal  facts  relating  to  the  civil  status  of  per- 
sons.^ For  a  long  while  recourse  was  had  to  ordinary  means  in 
order  to  establish  them,  such  as  testimony,^  wTitings,  a  confession 
even,  or  an  oath,^  presumptions;  ^  for  example,  the  requisite  age 

'  There  are  others,  which  are,  however,  of  less  importance;  for  example, 
emancipation,  etc. 

2  Ordinary  proof  by  means  of  witnesses  or  general  repute  ("fama").  Ad- 
mission of  the  testimony  of  women  with  regard  to  birth:  Beaumanoir,  16,  6; 
39,  30;  49,  54;  Masuer,  16,  45;  "Toulouse,"  31  (near  relatives).  Primo- 
geniture when  there  are  twins:  Brunner,  "Z.  S.  S.,  G.  A.,"  1895,  64.  Birth  of 
kings:  the  confinement  is  surrounded  with  a  sort  of  publicity.  —  As  to  ques- 
tions connected  with  the  above:  the  rule  "  Infans  conceptus  pro  nato  habetur  '; 
likelihood  of  hving  ("L.  Alam.,"  95,  and  "Wiss.,"  4,  2,  17,  18);  monstrosities 
and  the  custom  of  putting  them  to  death  (which  has  been  kept  up  among 
the  people),  c/.  Stobbe,  §  37;  Post,  I,  15;  hermaphrodites  ("Zwitter"),  ib. 
§39. 

3  Pcrtile,  III,  262. 

*  Especially  as  to  death:  Fertile,  III,  202.  —  As  to  absence,  see  ante, 
and  Bourjon,  I,  p.  103;  Britz,  540;  Stobbe,  I,  268  (history);  Bruns,  "Verschol- 
lenheit,  Kl.  Schr.,"  1882;  Tamassia,  "Arch.  Giur.,"  1866;  Fertile,  §  104; 
Glasson,  VIII,  321;  Lehr,  "Dr.  Angl.,"  p.  30.  They  are  dealt  with  in  the 
writings  of  the  Romanists:  "Dissens.  Domin.,"  Index,  see  "Rest,  in  int." 
Cf.  Procedure  ("Capit.,"  VII,  226:  prohibition  of  judging  persons  who  are 
absent;  229).  —  Domicile:  Homeyer,  "Heimath,"  1852  ("Berl.  Akad."); 
Argou,  I,  12;  Fothier,  I,  p.  3,  ed.  B.;  Glasson,  VIII,  405.  —  The  Itahan  doc- 
trine estabUshed  the  presumption  which  was  formerly  generally  accepted: 
that  one  was  supposed  to  be  dead  when  a  hundred  3^ears  had  elapsed  since 
the  time  of  one's  birth:  Bretonnier,  "Quest.,"  see  "Absents";  Gierke,  "D. 
Privatr.,"  I,  365. 

862 


Topic  l]  CERTIFICATES   OP   CIVIL  STATUS  [§  574 

for  doing  homage  or  exercising  certain  functions  was  guessed 
rather  than  proved  by  means  of  the  "aspectus  corporis."  ^  Mar- 
riage and  fihation  depended  ordinarily  on  the  possession  of  status 
("nomen,"  "tractatus,"  "fama").-  The  keeping  of  registers  of 
civil  status  relegated  to  the  background  these  imperfect  modes 
of  proving;  they  were  only  allowed  when  registers  were  lacking, 
that  is  to  say,  when  the  registers  had  perished  or  had  not  been 
kept  up.  As  a  contrast  to  this,  full  faith  was  given  to  these  reg- 
isters, which  had  the  advantage  of  furnishing  •a  preconstituted 
proof  established  under  the  best  conditions  of  impartiality  and 
.sincerity.^ 

§  574.  Certificates  of  Religious  Status.  —  The  origin  of  our 
legislation  on  the  subject  of  certificates  of  civil  status  is  not  to  be 
found  in  antiquity,'*  but  in  the  customs  of  the  Church.^  By  the 
fifth  century  the  clergy  made  a  practice  of  drawing  up  lists  of 
baptisms.  This  practice  disappeared,  only  to  reappear  in  the 
fifteenth  century  in  the  regulations  of  a  few  bishops  with  the  special 
purpose  of  furnishing  information  upon  the  spiritual  relationship 
resulting  from  baptism,  and,  consequently,  upon  the  impediments 
to  marriage  which  were  connected  with  it.^  There  could  be  noth- 
ing more  irregular  than  the  keeping  of  these  records.  Nevertheless, 
in  case  of  need,  they  were  used  to  prove  civil  status,  being  rounded 
out  with  the  assistance  of  oral  testimony,  household  registers,  and 
documents,  and  especially  with  the  "Livres  de  Raison."  ^    As  to 

1  Primitive  means  of  establisliing  the  fact  of  puberty  ("attrectatione  barbaj," 
"alarum,"  "pubis"):  "Scliwabenspiegel,"  27;  "Saclisenspiegel,"  1,  42,  1;  "F. 
de  Navarre,"  3,  4,  3;  Pertile,  III,  262. 

-  Pertile,  III,  262.     Or  even  by  means  of  public  rumor  alone. 

^  The  Canon  law  does  not  bar  other  forms  of  proof;  it  is  monarchic  legis- 
lation and  jurisprudence  wliich  have  done  so.  C/.  Fournier,  "OfficiaUtcs," 
18S0. 

*  Entering  in  the  register  of  the  phratria  at  Athens:  Benuchet,  "Hist,  du 
Dr.  prive  de  la  Rep.  Athen.,"  I,  350.  In  Rome,  registration  of  the  newly 
born,  under  Marcus  Aurehus:  Mommsen  and  Marquardt,  "Man.  des  Ant. 
Rom.,"  French  translation;  "Vie  priv6e  des  Rom.,"  I,  57,  99,  398;  Deroine, 
"R.  de  1.,"  1849,  261;  Jhe,  "R.  gen.  de  Dr.,"  1894. 

5  Besides  the  texts  of  the  Canon  law  relative  to  the  sacraments  and 
the  commentators  upon  them  of  old  or  of  recent  times  (c/.  Hinschius, 
§  200;  Frmlherg,  §§  133-156;  Richter,  §  592,  etc.),  see  Morel,  "De 
eff.  baptism!,"  1598  (French  author  of  the  eighth  century);  Thiers,  "Su- 
perst.  q.  reg.  Ics  sacrem.,"  1704;  Corblet,  "Hist,  du  bapterae,"  1882;  Du- 
chesne, "Orig.  du  culte,"  1889;  Viollet,  p.  457  (bibl.);  Gautier,  "Chevalerie," 
p.  106. 

^  Henri  le  Barbu,  Bishop  of  Nantes,  1406. 

'  That  is  to  say  books  of  accounts  (kept  by  the  heads  of  families,  which 
had  become  frequent  since  the  sixteenth  century,  especially  in  the  Soutii): 
Tamizey  de Larroque,  "Bibliog.  des  Livres  de  r.,"  1892;  D.  D'Aussy,  "R.  q.  h.," 
18th  year,  p,  239;  De  Santi  and  Vidal,  "Deux  liv.  de  r.,"  1896. 

8G3 


§  574]  STATUS   AND   CAPACITY   OF  PERSONS  [Chap.  VI 

marriages^  and  burials,^  the  clergy  were  also  in  the  habit  of  keep- 
ing special  registers  in  order  to  prove  them;  they  aimed  by  this 
means  to  assure  the  collection  of  offerings  or  remunerations  which 
they  received  when  burials  took  place,  and  which  they  even  de- 
manded, contrary  to  the  old  ecclesiastical  discipline.^  These  were 
really  account  books;  the  oldest  of  them  date  back  to  the  middle 
of  the  fourteenth  century.  Like  the  registers  of  baptism,  they 
were  often  not  complete;  the  keeping  of  neither  of  these  registers 
was  well  regulated  or  quite  general.  The  Council  of  Trent  in  1563, 
it  is  true,  made  the  previous  practice  regular  by  ordering  the 
parish  priests  throughout  Christendom  to  keep  registers  of  bap- 
tisms and  marriages  (Session  24,  "De  Ref.  Matr.,"  1  and  2);  but 
it  said  nothing  about  deaths,  and  its  orders  were  not  always 
strictly  respected. 

§  575.  Certificates  of  Civil  Status.  —  The  royal  power  regulated 
the  keeping  of  these  certificates,  and  also  made  it  absolutely 
obligatory.  In  order  to  prevent  the  abuses  resulting  from  the 
exercise  of  the  pope's  right  of  priority  in  the  matter  of  the 
bestowal  of  religious  offices,^  the  Ordinance  of  Villers-Cotterets, 
August,  1539,  Art.  50,  decreed  that  the  clergy  of  the  kingdom 
should  keep  a  register  of  the  death  and  burial  of  those  who  had 
held  such  office.  At  the  same  time,  in  its  Article  51  it  estab- 
lished registers  of  baptism  everywhere  with  the  object  of  prov- 
ing "the  time  of  coming  of  age  or  of  minority."  In  practice  there 
was  included  in  the  burial  registers  even  the  burial  of  those  who 
had  not  received  religious  office.  The  Ordinance  of  Blois,  May, 
1579,  which  reenacted  these  precepts,  borrowed  besides,  from  the 
Council  of  Trent,  the  keeping  of  a  register  for  marriages  whose 
solemnization  in  the  face  of  the  Church  was  henceforth  prescribed 
under  penalty  of  nullity.    This  matter  was  definitely  regulated  by 

1  As  to  the  proof  of  marriage,  c/.  Esmein,  "Mar.,"  I,  191;  "A.  C,  Artois," 
ed.  Tardif,  49,  5.  —  Italy:  custom  of  keeping  among  the  archives  of  the 
churches  the  contracts  of  the  marriages  which  had  been  celebrated  therein: 
"Nov.,"  74,  c.  5;  Fertile,  III,  264. 

2  As  to  burials:  Dig.  X,  3,  28  and  the  Commentaries;  G.  Durand,  "Specul.," 
4,  3,  "de  sepult.";  Lancelot,  II,  24;  Hericourt,  "G.,"  XII.  Cf.  Friedberg, 
§  95  (bibl.);  "Siete  Part.,"  I,  13. 

^  There  are  in  existence  such  records  from  1335  to  1350,  and  of  the  year 
1378:  "Mem.  Acad.  Dijon,"  1865,  XIII,  31;  Viollet,  461.  In  Italy  there 
were  still  older  customs:  Pertile,  III,  263. 

^  Cf.  Thibeaud,  p.  69.  The  papacy  gave  a  preference  to  those  which  bore 
the  earliest  date  at  Rome  after  the  death  of  the  one  entitled  to  the  office, 
provided  that  the  messenger  sent  wth  the  request  had  not  started  out  before 
the  death:  Fleury,  "Inst,  au  Dr.  eccl^s.,"  II,  21.  If  the  date  of  the  death  was 
not  legally  proven,  frauds  became  an  easy  matter:  Code  of  Henry  III,  1,  17. 

864 


Topic  l]  CERTIFICATES   OF  CFV'IL   STATUS  [§  576 

the  Ordinance  of  1667,  T.  20,  and  the  Declaration  of  April  9,  1736.i 
The  depositing  of  the  registers  with  the  clerk  of  the  royal  judges 
assured  their  preservation,  and  it  was  forbidden  for  the  judges  to 
receive  any  other  proof  of  civil  status  (excepting  when  no  registers 
had  been  kept  or  they  had  been  lost).^ 

§  576.  Secularization  of  Certificates  of  Civil  Status.  —  The 
monarchy  did  not  always  keep  up  the  observance  of  its  laws  in 
matters  of  civil  status  with  all  the  strictness  which  was  desirable. 
Perhaps  these  laws  would  have  been  better  respected  if  the  keep- 
ing of  the  certificates  of  civil  status  had  been  confided  to  public 
functionaries  who  were  more  dependent  upon  the  State  than  were 
the  clergy.  This  progress  was  only  realized  in  the  last  years  of 
the  Old  Regime,  and  then  only  in  the  case  of  the  Reformers. 
Protestant  ministers  had  at  first  kept  registers  of  civil  status  ac- 
cording to  the  example  of  the  Catholic  priests;  but  the  Decree  of 
October,  1685,  which  revoked  the  Edict  of  Nantes,  abolished  this 
practice.  The  Protestants  were  under  the  necessity  of  having 
their  children  baptized  by  Catholic  priests  if  they  wished  to  have 
a  legal  proof  of  their  filiation;  they  had  to  be  married  before  these 
same  priests  in  order  that  their  marriage  should  be  valid  and 
proved.  The  Edict  of  November  28,  1757,  caused  this  inhuman 
treatment  to  cease  by  allowing  them  to  apply  as  they  might  wish 
to  the  parish  priests  or  to  the  oflScers  of  justice  in  the  locality; 
moreover,  the  parish  priests  in  these  cases  set  aside  their  religious 
character  in  order  to  act  as  a  public  functionary.  This  was  only 
a  half  measure,  because  legislation  had  become  secularized  with 
respect  to  those  who  were  not  Catholics,  but  remained  religious 
with  respect  to  those  who  were  Catholics.^ 

*  A  double  set  of  registers  are  kept,  but  ordinarily  there  is  only  one:  Isam- 
hert,  Table,  see  "Actes  de  I'etat  civil."  Details  given  in  Thibeaud,  pp.  74, 
81,  166,  169  (taking  of  holy  orders),  101  (facts  established  "de  visu"  by  the 
parish  priest,  and  facts  which  are  reported  to  him  by  the  persons  making 
the  declarations);  Sagnac,  p.  261. 

2  Italy:  municipal  registers  of  emancipation  from  the  fourteenth  century 
on  (they  had  begun  by  making  a  memorandum  of  these  certificates,  because 
of  their  character,  upon  the  registers  which  contained  the  decrees  of  the 
communes).  Registration  of  proclamations  at  about  the  same  date.  From 
these  customs  there  perhaps  arose,  in  the  fourteenth  and  fifteenth  centuries, 
the  establishment  of  registers  of  civil  status  in  the  Italian  towns,  at  first  at 
Sienna,  at  Bologna  in  1454,  etc.  Nevertheless  the  system  of  registers  kept 
by  the  clergy  prevailed  until  the  time  of  the  French  Revolution:  Fertile, 
§105. 

'  Isambert,  Table,  see  "Actes  de  I'^tat  civil,"  "Culte  protestant";  Guyot, 
see  "Religionnaires";  Thibeaud,  p.  224  (Alsatians),  p.  174  (Jews);  Declaration 
of  the  11th  Dec,  1685:  register  of  the  deaths  of  reformers  kept  by  the  royal 
judge. 

865 


§  576]        STATUS  AND  CAPACITY  OF  PERSONS      [Chap.  VI 

The  Constituent  Assembly,  adopting  a  more  radical  system, 
which  was  the  only  one  in  harmony  with  the  principle  of  the  free- 
dom of  conscience,  secularized  the  registers  of  the  civil  status  for 
all  Frenchmen,  without  any  exception.  Their  keeping  was  en- 
trusted to  the  municipalities  by  the  Legislative  Assembly,  and  to 
the  mayors  and  their  deputies  by  the  Law  of  the  28th  Pluviose  of 
the  year  VIL^ 

1  "Const."  of  1791,  2,  7;  Decree  of  Sept.  20-25,  1792;  Thibeaud,  p.  239; 
Sagnac,  p.  271.  In  Germany  and  Switzerland  the  secularization  only  dates 
from  1875. 


866 


Topic  2] 


PERSONS    UNDER   A   DISABILITY 


[§577 


Topic  2.     Persons  under  a  Disability 


577.  Status  and  Capacity  of  Per- 

sons. 

578.  Foreigners  or  Aliens. 

579.  The  Same.  —  (A)  The  Feudal 

Law. 

580.  The    Same.  — (B)     Trans- 

formation of  the  seignio- 
rial right  into  a  domanial 
right. 

581.  The     Same. —  (C)  Nation- 

ality. 


§  5S2.  The  Same.  —  (D)  Disability  of 
aliens  or  right  of  succession  to 
the  estate  of  deceased  aUens. 

§  583.  The  Same.  —  (E)  How  did  the 
Crown's  succession  to  the 
estate  of  a  deceased  alien 
disappear? 

§  584.  Those  Civilly  Dead. 

§  585.  Entering  Rehgious  Orders. 

§  586.  The  Penal  Civil  Death. 

§  587.  Lepers  and  Outcasts. 


§  577.  Status  and  Capacity  of  Persons.  —  The  enjoyment  of 
rights  varied  a  great  deal  in  the  old  times  according  to  nationality 
(foreigners,  non-residents)/  religion  ^  (clericals,^  monks,  crusaders,* 
heretics,^  Jews),^  social  condition  "^  (nobles,  commoners,  serfs,^ 
slaves),  and  penal  condemnations  (civil  death,  public  disgrace, 
dishonorable  professions).  Sex,  age,  and  infirmities,  which  to- 
day have  hardly  any  effect  excepting  upon  the  capacity  "  stricto 
sensu"  or  fitness  to  exercise  the  rights  which  one  has  ("Handlungs- 
fahigkeit"),  formerly  affected  even  the  enjoyment  of  these  rights 


^  As  to  the  Bohemians  or  "gitanos"  who  appeared  in  France  in  the  fif- 
teenth century,  c/.  De  Rochas,  "Parias  de  France,"  1876,  see  "Gr.  Encycl." 

2  Gierke,  "Deutsch.  Privatr.,"  §  54;  Ruffiyii,  "Liberia  religiosa,"  1901; 
Bonel-Maury,  "Hist,  de  la  lib.  de  consc,"  1901. 

^  Ponced,  "Th^se,"  1901;  "Tract.univ.  jur.,"  VIII  (privilege  of  students,  etc.). 

*  Bridrey,  "Cond.  jurid.  des  croisfe,"  "Th^se,"  1900. 

5  C/.  "Wis.,"  12;  Dig.  X,  5,  7  and  the  commentaries;  G.  Durand,  IV,  4; 
Lancelot,  "Inst.,"  IV,  4;  Corvin,  IV,  7;  H6ricourt,  "E.,"  24;  Delamare,  "Police," 
II,  4;  "Siete  Part.,"  VII,  26;  "Tract,  univ.  jur.,"  XI;  Pollock  and  Maitland, 
II,  542.  —  On  the  Inquisition  see  Lea,  "Hist,  of  the  Inquis.,"  French  trans- 
lation, 1900,  and  the  articles  by  Alex.  Bertrand,  Ch.-V.  Langlois;  Douais, 
"Doc.  pour  servir  k  I'hist.  de  I'Inquis.";  "La  proc^d.  inquisit.,"  1900;  "Ann, 
du  Midi,"  1902,  XIV;  "Mgr.  Douais  et  I'Inquis."  —  As  to  the  Protestants, 
f/.  "Code  civ.  interm.,"  see  "Religionnaires." 

*  See  among  other  texts,  "Wis.,"  12;  Dig.  X,  5,  6  and  the  commentaries; 
"Capitul.,"  Table,  see  "Judsei";  see  Du  Cange;  Delamare,  "Police,"  II, 
3;  Britz,  509;  Fischer,  "De  statu  Jud.,"  1763  (Metz);  Stobbe,  "Juden  in 
Deutschland,"  1866;  "Handb.,"  §  46;  Gierke,  "D.  Privatr.,"  §  55;  Pollock  and 
Maitland,  I,  451;  Pertile,  99;  Glasson,  VII,  74.  Theses:  Gasnos,  1897;  Lucien 
Brun,  1900;  M.Maynial,  "La  quest,  juiveen  1789,"  1903;  Fauchille,  "La quest, 
juive  s.  I'Empire,"  1884;  Iteinberg,  "Z.  Gesch.  d.  ludcn"  (Switzerland),  1902. 

^  Heusler,  §  36;  Stobbe,  §  46;  Gierke,  "Deutsch.  Privatr.,"  §  46  et  seq.; 
Regnier,  "  TMse,"  1900  ("  Dist.  des  classes  dans  la  socidt^  Allemende  actuelle  ") ; 
Ritou,  id.  (Basques);  "R.  h.  Dr.,"  I,  407  (Oviedo);  Michelin  and  Legrand, 
"Cond.  des  pers.  d'ap.  le  Koran,"  1879;  Post,  §  125;  "Tract,  univ.  jur.,"  XVI. 

8  Chopin,  "Prii-il.  rustic,"  1875;  "Tract,  de  privil.,"  1582. 

867 


§  577]         STATUS  AND  CAPACITY  OF  PERSONS      [Chap.  VI 

or  the  fitness  to  have  them  ("Rechtsfiihigkeit").  This  is  what 
we  have  already  seen  with  regard  to  piibhc  law  and  the  family. 
It  remains  only  to  complete  upon  a  few  points  the  explanations 
which  have  already  been  given. 

§  578.  Foreigners  or  Aliens  ^  were  in  the  early  times  without 
any  rights  in  the  social  group  to  which  they  did  not  belong.^ 
Everybody  was  free  to  ill-treat  them,  to  make  them  slaves,  or  even 
to  kill  them  with  impunity;  there  was  nobody  to  avenge  them.^ 
It  is  in  pursuance  of  these  ideas  that  the  shipwrecked  sailor 
belonged  for  a  long  time,  body  and  possessions,  to  the  lord  of  the 
land  where  he  came  ashore.* 

1  "Albanus"  from  "AIbi,"  elsewhere  (popular  Latin),  "alibanum";  ety- 
mology which  is  certain  and  which  reheves  us  from  the  necessity  of  men- 
tioning the  current  fanciful  explanations.  Charter  of  820  giving  the  Bishop 
of  Paris  jurisdiction  "de  incolis  qui  rustice  albani  appellantur,"  over  the 
land  owned  by  Notre-Dame:  Lasteyrie,  "Cart,  de  Paris,"  1887,  I,  no.  31  (dis- 
cussion as  to  its  authenticity).  —  Other  names:  "Peregrini"  (pilgrims),  see 
Du  Cange;  "advense";  " alaienigenae " ;  "Wargangus,"  "L.  Fr.  Cham.,"  9; 
"Roth.,"  367,  cf.  "Wargus,"  the  person  outside  the  law  (outlaw);  various 
explanations:  a  person  who  begs  alms  from  house  to  house  ("alilanti,"  which 
is  equivalent  to  "der  Elende");  Grimm,  "R.  A.,"  II,  335;  or  a  person  who 
is  protected,  "wara"  meaning  protection,  ib.,  II,  143.  Cf.  "Sal.,"  45:  "homo 
migrans,"  that  is,  a  stranger  in  the  village,  the  inhabitant  of  another  village 
who  migrates;  he  is  not  a  foreigner,  i.e.,  one  who  is  not  an  inhabitant  of  that 
country;  also  there  is  no  question  of  anything  save  a  legal  expulsion  declared 
against  him.  See  also  the  collective  responsibiUty  of  communities,  ante, 
§  356.     English  system  of  the  frankpledge.  Pollock  and  Maitland,  I,  554. 

2  The  majority  of  them  were  malefactors,  persons  who  had  been  banished, 
exiles  or  else  spies  sent  by  the  enemy. 

3  Viollet,  265;  Post,  I,  448;  Grimm,  396;  Michelet,  'iOQ.  —  Salvien,  "De 
gub.  Dei,"  V,  9;  Meginhard  (ninth  centurv),  "Transl.  S.  Viti,"  13:  "Transl. 
S.  Alex.,"  13.  Cf.  "Burg.,"  38,  39;  "Ina,""'20:  he  is  treated  as  a  thief  "si  nee 
vociferaverit  nee  cornu  insonuerit";  thenceforth,  if  he  takes  care  to  call  out, 
he  is  neither  killed  nor  reduced  to  slavery:  Siegel,  §  130.  — As  to  the  Moors, 
cf.  "Siete  Part.,"  VII,  25;  Dig.  X,  5,  6;  Glasson,  VI,  662. 

*  Right  to  wreckage,  "lagan"  ("laga,"  law);  see  Du  Cange;  Pertile,  III, 
200.  It  is  difficult  to  see  in  this  an  extension  of  the  right  of  occupation  of 
"res  nullius"  which  was  admitted  of  by  the  Roman  law,  for  the  things  which 
happened  to  be  cast  up  were  not  "res  nullius,"  and  the  person  who  took  pos- 
session of  them  ran  the  risk  of  being  punished  as  a  thief:  "Cod.  Just.,"  II, 
5,  1;  Pact  of  Sicard  de  Benevent  in  836.  Cf.,  however,  Zanetii,  "Legge 
Romana  ret.  coir.,"  p.  125;  "Cod.  Euric,"  282;  "L.  Wis.,"  7,  2,  18,  ed.  Zeumer. 
Reprisals  against  the  Normans  and  other  pillagers  must  have  contributed 
towards  the  maintenance  or  even  towards  the  development  of  the  right  to 
wreck.  According  to  certain  very  old  documents,  the  Pagans  regarded  the 
ocean  as  a  cow  which  gave  itself  up  to  them;  as  soon  as  a  vessel  in  distress  made 
its  appearance  they  all  ran  down  to  the  shore  with  drag-hooks  in  order  to 
take  possession  of  the  wreckage:  Grimm,  "R.  A.,"  250.  In  the  eleventh  cen- 
tury the  Church,  going  back  to  the  Roman  tradition,  excommunicated  those 
who  availed  themselves  of  this  barbarian  right:  Dig.  X,  5,  17  (1179).  Fred- 
erick II  abolished  this  right  in  his  Constitution  in  favor  of  foreigners,  in  1220, 
c.  9:  "M.  G.  H.,  L.  L.,"  II,  243;  Authentic  "Navigia"  under  "C.  J.,"  6,  2,  "de 
furtis,"  18;  Schroeder,  520;  "Const.  Sic,"  I,  29;  "R61es  d'Ol^ron,"  29.  But 
it  still  continued  to  exist  in  many  places  under  the  name  of  local  custom. 
The  "Ass.  de  Jer."  "C.  des  B.,"  46,  had  also  done  away  with  it.     In  France 

868 


Topic  2]  PERSONS   UNDER   A   DISABILITY  [§  578 

Hospitality  ^  imposed  by  Customs,-  and  sometimes  by  the  law;^ 
tempered  the  severity  of  this  right;  the  foreigner  ceased  to  be 
treated  as  an  enemy  as  soon  as  there  could  be  found  a  member 
of  the  community  to  take  him  under  his  protection,  to  become 
surety  for  him,  and  to  admit  him  as  a  guest  in  his  own  family.'* 
So  the  first  aim  of  the  foreigner  came  to  be  to  find  himself  a 
patron  (from  this  arose  the  old  custom  of  going  to  sit  at  the 
fireside  of  the  family  under  the  protection  of  the  household  gods). 

Following  the  invasions  and  the  mingling  of  races  which 
was  the  result  of  them,  and  following  the  establishment  of 
the  Frankish  State,  whose  subjects  were  of  various  nationalities, 
and  following  the  conversion  of  the  Alamans  to  Christianity  and 
the  influence  of  the  Roman  customs,  the  prejudice  against 
foreigners  lost  its  force.  Those  who  belonged  to  the  divisions 
of  the  Frankish  State  were  not  looked  upon  as  foreigners  when 
this  State  was  divided  up  into  several  kingdoms;  this  division 
was  often  only  provisional,  and  there  subsisted  a  certain  moral 
unity  and  rather  frequent  relations  between  the  new  States.  But 
still  more  than  the  nationals  did  strangers  find  themselves  under 
the  necessity  of  having  a  patron  {cf.  "right  of  the  lord").  The 
patronage  of  the  king  had  always  been  especially  sought,  because 
it  was  more  effective;  it  alone  was  exercised  in  a  beneficial  way 
over  the  travelers  and  the  pilgrims  who  were  passing  through  the 

a  treaty  of  1231;  Ordinance  of  1277,  1461,  etc.;  Isambert,  Table,  see  "Bris 
et  naufr.";  D.  Vaissette,  V,  1114.  Cf.  "Aucassin  et  Nicolette,"  ed.  Suchier. 
The  Ordinance  of  1681,  4,  9,  1  and  4.5,  placed  under  the  protection  of  the  king 
vessels  which  were  wrecked,  and  punished  with  death  those  who  lighted  fires 
at  night  on  the  shore  in  order  to  attract  and  shipwreck  them.  As  the  right 
of  wreck  disappeared  it  became  necessary  to  determine  what  was  to  become 
of  the  things  washed  ashore  which  nobody  claimed.  Cf.  the  Ordinances  of 
154.3,  1.567,  etc.  —  Pappafava,  p.  22  (bibl.);  Linyer,  "Le  Dr.  d'epaves  dans 
la  16gisl.  actuelle,"  1903. 

1  Cf.  Post,  I,  449;  Osenbnlggen,  "Stud.,"  p.  19;  "Dig.  Ital.,"  see  "Alberghi"; 
Lehmann,  "Abhandl.,"  1888. 

2  Texts  of  Scripture:  "Exodus,"  xxii,  21;  xxiii,  9;  "Leviticus,"  xix,  33,  and 
xxxiii,  22;   "Deuter.,"x;  xviii,   19. 

3  Cwsar,  VI,  23;  Tacitus,  "Germ.,"  22;  "Burg.,"  38:  penalty  against  any 
one  who  sends  away  a  guest  refusing  to  receive  him,  and  against  the  Bur- 
gundian  who  sends  him  to  a  Roman;  Cassiod.,  "Var.,"  14;  "Bai.,"  3,  14; 
Capitulary  of  802,  27  (I,  96);  Anseg.,  I,  70;  Capitulary  of  803,  20,  etc.,  I, 
131,  193,  etc.:  Bened.  Lev.,  I,  364.  Cf.  Rozihre,  "Form.,"  nos.  27  et  seq. — 
Grimm,  "R.  A.,"  400.  Rights  of  the  passer-by:  "Roth.,"  3.58;  "Wis.,"  8, 
4,  27,  etc.  —  "Cout.  de  Bigorre,"  24;  "Wis.,"  11;  "Barcelona,"  629  (peace 
of  the  roads). 

''  On  principle  the  foreigner  observes  the  law  of  his  patron,  but  the  king 
sometimes  authorizes  those  who  are  under  his  protection  to  live  according 
to  the  law  of  their  domicile  of  origin:  "Roth.,"  190;  Rozikre,  no.  27  (Jews). 
Cf.  post:  "guidaga,"  "ducatus,"  during  the  feudal  period,  for  the  foreigner 
who  is  only  passing  through,  or  the  merchant:  Dareste,  "N.  R..H.,"  1903,  483. 

8G9 


§  578]  STATUS   AND   CAPACITY   OF   PERSONS  [Chap.  VI 

kingdom.  It  became  subsidiary,  that  is  to  say,  the  king  made 
himself  a  patron  of  those  who  had  no  patron.^  For  this  protection 
the  king  collected  an  annual  rent,  the  "Wergeld"  and  the  in- 
heritance of  those  who  were  subject  to  it,^  at  least,  if  they  died 
without  heirs.  By  means  of  an  order  ^  it  was  prescribed  that 
the  "missi"  should  draw  up  a  list  of  the  foreigners  who  were 
found  within  their  circle  of  inspection.^ 

§  579.  The  Same.  —  (A)  The  Feudal  Law  ^  continued  the  Bar- 
barian law,  but  emphasized  it.  Instead  of  becoming  the  exclusive 
monopoly  of  royalty,  the  patronage  of  aliens  and  the  beneficial 
rights  which  it  admitted  of  became  dispersed  more  and  more 
among  the  lords. ^  Annoying  consequences  resulted  therefrom; 
(a)  thenceforth  the  individual  who  does  not  belong  to  the  lords' 
domain  is  looked  upon  as  a  foreigner,  even  if  he  be  a  Frenchman;  ^ 
(6)  at  the  same  time,  the  greed  of  the  lord's  treasurer  exaggerated 
his  rights  over  aliens,  as  over  other  persons  of  inferior  condition 
besides.  The  alien  had  to  declare  himself  the  man  of  the  lord  upon 
whose  lands  he  established  himself;  ^  he  was  ordinarily  granted  for 
this  a  period  of  a  year  and  a  day,^  at  the  expiration  of  which  he 

1  Schmid,  "Ges.  d.  Angels.,"  p.  126;  Council  of  Paris,  996  (D.  Bouquet, 
X,  627);  I,  125.  Also  with  regard  to  the  Jews,  it  seems  that  the  king,  from 
the  Frankish  Period  on,  exercised  over  them  a  general  patronage.  •  At  the 
same  time  this  point  is  one  which  has  been  discussed:  Gierke,  "D.  Privatr.," 
I,  438. 

2  "L.Fr.Cham.,"9;  "Ina,"23;  "Cnut,"40;  "Bai.,"4,  30;  "Capit.,"  I,  447, 
c.  2;  Mabillon,  "Ann.  Ord.  S.  B.,"  II,  699;  Miihlbacher,  "Reg.,"  no.  152. 
The  Lombard  law,  "Roth.,"  390,  does  not  allow  them  to  dispose  of  their 
possessions  "absque  jussione  regia";  however,  if  they  have  any  legitimate 
children  the  latter  wiU  receive  them  in  their  capacity  of  heirs.  Can  they 
receive  an  inheritance?  It  would  seem  not  (argument  to  the  contrary  in  the 
Capitulary  of  806,  c.  9,  "Divisio  regni":  the  subjects  of  those  kingdoms 
estabhshed  by  having  been  divided  may  succeed  one  another);  "Epist. 
ad  Offam."     Cf.  "Rib.,"  31,  3;  36. 

'  Particular  measures,  such  as  the  "Praceptum  pro  Hispanis,"  812,  815. 
See  also  Imbart  de  la  Tour,  in  the  "Mel.  P.  Fabre,"  1902  (agricultural  colonies 
and  occupation  or  cultivation).  Cf.  German  colonies,  Blondel,  Meitzen, 
op.  cit.     Cf.  See,  "Classes  rurales,"  p.  62;  Flach,  "Orig.,"  II,  139. 

'  Capitulary  of  803,  6,  and  of  806  (I,  115,  447) ;  Bened.  Lev.,  VI,  222;  "  App.," 
II' 4. 

*  Du  Cange,  see  "Albani,"  etc.;  "Glim,"  see  Table;  Ragueau,  see 
"Aubaine." 

^  Terms:  estray,  unrecognized,  alien,  etc.:  Du  Cange,  see  "Forenses"; 
Rastall,  see  "Foreign."  —  Fertile,  III,   193. 

'  Strangers  to  the  bailiff's  jurisdiction,  to  the  diocese:  Loudunois,  2,  5; 
"Tour.,"  2,  3;  Brussel,  "Us.  des  fiefs,"  III,  16;  Stobbe,  I,  310. 

8  During  the  year  and  a  day  the  alien  may  declare  himself  to  be  the  man  of 
another  lord  or  of  the  king:  "Et.  de  St.  Louis,"  II.  30;  "Agen,"  33  (a  year 
and  a  month  within  which  to  choose  one's  lord);  Laroque-Timbaut,  51;  Loysel, 
44.     Sale  of  the  "  justitia  albanorum."     Act  of  1232  cited  by  Demangeat,  p.  99. 

3  Oath  of  aliens:  "Gr.  Cout.,"  2,  29.  The  ahen  keeps  his  station;  if  he  is 
a  commoner  he  does  not  become  a  serf,  etc. 

870 


Topic  2]  PERSONS   UNDER  A  DISABILITY  [§  579 

could  be  seized,  body  and  possessions.^  Assuming  that  he  made 
the  declaration,  he  was  often  treated  like  a  serf ,2  and  this  is  what 
happened  in  the  domains  where  serfdom  was  the  rule,  where  the 
"air  makes  one  a  slave"  (excepting  in  the  case  of  gentlemen) ;  ^  on 
the  contrary,  in  domains  where  the  "air  makes  one  free,"  ^  or 
serfdom  does  not  exist  or  is  only  an  exception,  he  is  free.  In  the 
former  case  his  condition  is  easy  to  determine;  let  us  notice 
especially  that  he  is  subject  to  mortmain.  On  the  second  sup- 
position, he  is  treated  like  the  commoners  of  the  locality  in 
which  he  lives,  subject  to  the  same  rights,  and,  furthermore, 
affected  by  incapacities  which  varied,  the  most  common  of  these 
being  the  following:  his  inheritance  belongs  to  the  lord  ("liber 
vivit,  servus  moritur"),^  at  least  if  he  does  not  leave  any  descend- 

^  "Et.  de  St.  Louis,"  I,  92;  100.  Difficulties  arise  as  to  these  texts.  The 
mistake  has  been  made  of  trying  to  draw  a  distinction  between  the  foreigner 
of  unknown  origin  (c.  100)  and  the  foreigner  coming  from  a  neighboring 
feudal  jurisdiction  (c.  92):  Viollet,  p.  366,  n.  5;  Du  Cange,  see  "Explectabilis." 

2  Tliis  comparison  with  the  serf  has  been  contested.  But  cf.  Beaumanoir, 
45,  19;  Chateauneuf,  II,  20;  "Cout.  d'Anjou,"  ed.  B.-B.,  I,  pp.  232,  311;  Math. 
Paris,  "Hist.  Angl.,"  in  1213.  Prosecution  of  aUens:  Du  Cange,  see  "Albani." 
Marriage  out  of  one's  station:  Bacquet,  op.  cit.;  "Chalons,"  16  (argument  to 
the  contrary).  Rent,  "cens,"  "census,"  " forasticus " :  Deynangeat,  p.  100 
et  seq.  (texts  of  the  eleventh  century);  Viollet,  "Et.  de  St.  Louis,"  IV,  303. 
Mortmain:  "Et.  de  St.  Louis,"  II,  31  (II,  p.  439);  "Jostice,"  p.  255;  Loysel, 
68,  101;  Ragueau,  see  "Parcours."  —  "Wildfange"  (especially  in  the  Palat- 
inate): Grimm,  "R.  A.,"  327,  399.  —  In  the  same  way  the  Jews  were  consid- 
ered " servi  principum  " :  5<.  Thomas,  "Summ.  theol.,"sec.  q.x.,  Art.  2;  "Schwab- 
enspiegel,"  260  (214).  They  were  not  foreigners  properly  speaking,  for  they 
did  not  come  from  some  outside  country.  In  the  Prankish  Period  they  had 
already  been  placed  under  various  disabilities  which  were  not  due  to  anything 
but  religious  prejudice;  but  they  were  not  likened  to  slaves:  Edict  of  Chlot., 
2,  10;  Capitulary  of  850,  c.  24.  How  does  it  happen  that  their  position 
became  worse  afterwards?     Heusler,  §  35.     Influence  of  the  crusades. 

'  Vitry,  72;  see  Ragueau. 

*  Beaumanoir,  no.  972,  ed.  Salmon;  Larroque-Timbaut,  53.  The  majority 
of  the  municipal  charters  provide  for  the  settling  of  the  foreigner:  Loysel, 
24;  "Toulouse,"  155,  1.56;  "Lezat,"  2;  "Montpellier,"  31,  45,  93,  105;  "Albi," 
4;  "Agen,"  33;  "Charroux,"  3;  "Martel,"  18;  "Apt,"  38,  etc.  Sometimes 
they  provide  for  favors  to  be  conferred  upon  the  foreigner:  Fertile,  III,  290. 
Protection  by  way  of  guidance,  safe-conduct,  an  escort,  especially  when  fairs 
and  markets  were  being  held:  Huvelin,  "Th^se"  (escort,  letters);  Du  Cange, 
see  "Ducatus,"  etc.  Opposition  between  the  inhabitants  and  the  citizens: 
Soulatges,  "Cout.  de  Toulouse,"  Municipal  Ordinance  of  1731.  —  German 
" Gastgerichte " :  Osenbrilggen,  op.  cit.  England:  {Lehr,  p.  27)  mixed  juries, 
Court  of  Piepoudre  (for  alien  merchants).  Cf.  as  to  this  expression,  "L. 
Burg.,"  140;  "L.  d.  Dr.,"  no.  486. 

^  To  allow  a  foreigner  to  inherit,  would  have  been  to  have  allowed  him  to 
take  out  of  a  lord's  domain  the  property  which  was  to  be  found  therein, 
which  amounted  to  the  same  thing,  according  to  the  ideas  of  tliat  jieriod, 
as  the  commission  of  a  species  of  theft  at  the  expense  of  the  lord.  Sometimes 
he  was  absolutely  refused  the  right  of  inheriting,  sometimes  the  lord  was 
allowed  to  keep  a  portion  of  his  possessions.  The  lord  was  authorized  to 
enforce  a  restraint  of  this  same  nature  over  the  possessions  of  the  person 
who  left  his  domain   ("gabella  eraigrationis"):   Stobbe,  I,  312,  316.     Fre- 

871 


§  579]  STATUS   AND   CAPACITY   OF   PERSONS  [Chap.  VI 

ants  born  in  the  lord's  domain;  ^  he  cannot  make  a  will,^  nor  can 
he  inherit  upon  intestacy  or  by  will;  he  is  forbidden  to  acquire 
lands  ^  or  to  exercise  any  public  function;  ^  his  penalties  are  more 
severe  and  his  taxes  are  higher;  ^  he  is  subject  to  reprisal,®  to  ar- 
rest or  distraint  carried  out  by  an  individual/  and  to  expulsion. 
The  reaction  against  this  severe  treatment  thus  inflicted  upon 
the  foreigner  came  from  the  Church  and  the  monarchic  power. 
In   1220  the  Authentic   "Omnes   Peregrini"   of   Frederick  11,^ 

quently  the  inheritance  of  the  foreigner  was  found  to  be  without  an  heir  to 
take  it,  for  his  relations  were  either  unknown  or  far  away.  Cf.  Fertile,  III, 
189.  Possibly  these  ideas  would  not  have  sufficed  to  give  rise  to  the  right  to 
the  succession  to  the  estates  of  deceased  aliens,  but  they  had  a  sufficient 
amount  of  influence  to  keep  up,  on  this  point,  tradition  wliich  was  hostile  to 
the  foreigner  and  which  refused  to  give  him  any  rights:  Brunner,  "D.  R.  G.," 
I,  275. 

1  "A.  C,  Verm.,"  nos.  140,  141  (right  to  make  a  will):  Pertile,  III,  196; 
"L.  d.  Dr.,"  no.  376. 

2  Cf.,  however,  "Et.  de  St.  Louis,"  loc.  cit.;  "A.  C,  Verm.,"  p.  80;  Picot, 
"Hist,  des  Etats  Gen.,"  I,  469. 

3  "Sal.,"  45;  "Salon":  consent  of  the  Court:  Giraud,  II,  260.  Italian 
Statutes:  Pertile,  III,  191.  Sometimes  prohibition  of  giving  any  marriage 
portion  to  the  woman  who  married  a  foreigner,  ih.;  especially  in  Italy  and 
in  Germany:  Stobbe,  I,  310  ("landsassiatus  plenus").  Repurchase  of  mer- 
chandise: "Montpelher,"  in  1205,  6.  In  England,  until  1844,  foreigners 
could  not  acquire  any  immovables  (or  ships)  by  any  right  whatsoever,  under 
penalty  of  having  them  confiscated.  The  foreigner  married  to  an  English- 
man could  not  therefore  have  any  dower,  and  the  foreigner  married  to  an 
Englishwoman  could  not  enjoy  the  advantage  of  the  curtesy  of  England: 
Blackstone,  II,  p.  54,  French  translation.  Cf.  on  the  establishing  of  these 
rules,  Pollock  and  Maitland,  I,  445  (relations  existing  between  France  and  Eng- 
land). In  Languedoc  the  Jews  possessed  lands:  Saige,  op.  cit.  But  this 
was  not  generally  so. 

*  "Aries,"  "Salon,"  "Carcassonne,"  etc.:  Giraud,  II,  131,  153,  254.  Italian 
Statutes:  the  position  of  notary,  or  of  advocate:  Pertile,  III,  190.  Sometimes 
even  he  was  excluded  from  the  practice  of  certain  professions.  They  could 
only  become  members  of  corporations  after  the  Edict  of  August,  1776,  Art. 
9.  "Montpellier,"  109:  they  could  not  fall  back  upon  the  legal  tariff  for 
merchandise;  their  testimony  was  not  admissible  in  court;  surety  "judic. 
solvi,"  ib.  In  their  case  penalties  were  more  severe  ("Aries,"  17,  18)  and 
procedure  more  strict,  ib.  Creditors  who  were  members  of  the  nation  were 
given  preference  over  foreign  creditors.  —  Marriages  between  members  of 
the  nation  and  foreigners  sometimes  burdened  with  formalities,  and  at  other 
times  looked  upon  with  favor:  "Montpellier,"  93.  —  Tonneins,  91.  J.  Faure 
questions  as  to  whether  a  foreigner  may  be  a  guardian,  I,  26a  (cf.  Table). 

^  Aries,  1235,  in  Giraud,  II,  6  et  seq.  Cf.  penalties  at  fairs:  Huvelin, 
"These,"  p.  467. 

«  "Montpelher,"  23,  29  to  34;  "Carcassonne,"  138;  Pasquier,  "Inst.,"  176; 
Stobbe,  I,  318;  Fertile,  §  34;  Pappafava,  p.  29;  Huvelin,  p.  44.3;  Del  Vecchio 
and  Casanova,  "Rappresalie  n.  communi  medievali"  (Florence),  1894. 

7  '-'Montpellier,"  29  et  seq.;  "Aries"  in  Giraud,  II,  165;  "Albi,"  5;  Martel, 
19,  23;  "Bord.,  A.  C,"  101;  "Arch.  leg.  de  Reims,"  I,  38;  Pertile,  III,  191. 
No  giving  up  of  possessions:  Ordinance  of  1667,  34,  1;  1673,  10,  2;  Stobbe, 

I,  318.  Cf.  franchises  of  fairs:  "Cod.  Just.,"  4,  60,  1;  Huvelin,  "These," 
p.  438. 

8  "Const.  Frid.,"  II,  §  10;  following  the  "L.  Feud."  (or  "M.  G.  H.,  L.  L.," 

II,  243,  c.  8);  Authentic  on  "C.  J.,"  6,  69;  Isambert,  III,  128.     Pertile,  III, 

872 


Topic  2]  PERSONS   UNDER   A   DISABILITY  [§  580 

re-enacted  by  Louis  the  Headstrong  in  1315,  granted  them  the 
right  to  make  a  will,  and,  if  they  had  no  heirs  at  law  or  testa- 
mentary heirs,  conferred  their  possessions  upon  the  poor  or  upon 
the  Church.  It  is  true  that  these  provisions  were  scarcely  ever 
applied.  At  the  same  time,  local  causes  which  were  more  effica- 
cious, —  relations,  commercial  or  otherwise,  between  towns  and 
lords'  domains,  —  caused  the  right  to  the  succession  to  the  es- 
tate of  a  deceased  alien  to  disappear,  especially  in  the  interior  of 
the  kingdom.^  Sometimes,  for  example,  at  Nice,  in  the  thirteenth 
century,  one  finds  the  principle  of  reciprocity  established;  there 
foreigners  were  treated  in  the  same  way  as  the  inhabitants  of  Nice 
were  treated  in  their  country.^ 

§  580.  The  Same.  —  (B)  Transformation  of  the  seigniorial  right 
into  a  domanial  right.  Through  an  evolution  similar  to  that 
which  took  place  during  the  Frankish  period,  the  avowry  of  the 
king  became  subsidiary  but  ended  by  being  exclusively  recognized. 
In  the  domain  of  the  crown  every  alien  who  had  not  been  made 
one  of  the  lords'  men  within  a  year  and  a  day  became  the  king's 
man.^  In  time  the  alien  could  not,  indeed,  recognize  any  other 
lord  than  the  king;  this  was  so  from  the  thirteenth  century  in 
the  District  of  Orleans.^  About  the  same  period  an  Ordinance 
inserted  in  the  "Olim"  of  Parliament,  II,  456,  under  the  signifi- 
cant title  of  an  "Ordinance  Relating  to  People  Subject  to  Mort- 
main, Aliens  and  Bastards,"  bears  witness  to  the  frequency  of  the 
contentions  between  the  lords  and  the  agents  of  the  king  with  re- 
lation to  the  inheritances  of  these  three  classes  of  persons.^  Only 
the  rights  of  the  high  lords-justices  are  recognized;  moreover,  it 
was  necessary  that  there  should  be  no  adverse  possession.  During 
the  reaction  which  took  place  after  the  reign  of  Philip  the  Hand- 
some these  rights  were  still  recognized  in  1315.    But  at  the  end  of 

195,  cites  earlier  provisions  enacted  by  the  Holy  See  as  applying  to  its  domain 
(1169).  CJ.  texts  which  confer  one-half  of  the  inheritance  upon  the  host 
and  the  other  half  upon  the  town.  The  host  took  the  clothing  of  the  foreigner : 
Stohhe,  I,  315. 

1  "MontpeUier,"  30;  "ChAtelblanc,"  1303,  Arts.  5  and  6;  "Chatillon," 
Art.  25  {Giraud,  11,346);  "AIbi,"  1220,  1  and  2;  "Saint-Maurin,"  13.52,  2, 
etc.;  "MontpeUier,"  108,  114;  R.  Caillemer,  "Admin,  de  success,  par  les  pouv. 
publics,"  1901. 

^  Fertile   III   197. 

3  "A.  C.',  Champ."  (B.  de  Richehourg,  III,  218). 

*  "Et.  de  St.  Louis,"  II,  31.  Cf.  Charter  of  Juvisy  in  1136;  Glasson, 
VII,  67.  A  similar  evolution  as  far  as  the  Jews  are  concerned:  "Schwab- 
ensp.,"  214  (w.):  they  are  the  serfs  of  the  "camera"  (treasurer)  of  the 
Roman  king. 

»  "Olim,"  II,  4.56;  III,  211,  223;  Vuitry,  "Et.  s.  le  r6g.  fin.  de  la  France," 
I,  442;  Ducoudray,  "Orig.  du  Pari.,"  p.  809. 

873 


§  580]        STATUS  AND  CAPACITY  OF  PERSONS      [Chap.  VI 

the  fourteenth  century  (1386)  Charles  VI  was  seen  to  appropriate 
to  himself  the  inheritance  of  aliens  throughout  the  whole  of  Cham- 
pagne, no  matter  in  what  jurisdiction  of  high  justice  they  might 
have  died.^  The  same  phenomenon  of  concentration  had  taken 
place  in  the  domains  of  the  great  feudatories.  As  the  king  inherited 
from  them,  a  universally  royal  succession  to  the  estate  of  the  de- 
ceased alien  ^  was  the  system  which  was  in  force  from  the  sixteenth 
century,  excepting  under  certain  Customs  which,  stopping  half 
way  along  this  path,  still  connected  the  right  of  succession  to  the 
estate  of  deceased  aliens  with  high  justice.^  This  change  had  happy 
consequences  for  foreigners.  It  made  their  condition  uniform  and 
moderated  it;  at  the  same  time,  it  diminished  their  number,  be- 
cause there  was  no  longer  any  question  of  foreigners  to  the  lord's 
domain,  but  only  foreigners  to  the  kingdom. 

§  581.  The  Same.  —  (C)  Nationality.'^  Feudal  particularism  for 
a  long  time  obscured  the  idea  of  nationality;  one  was  a  Breton  or  a 
Gascon  rather  than  a  Frenchman.  But  with  the  absolute  monarchy 
and  the  long  wars  against  neighboring  peoples  this  idea  became 
rooted  in  public  opinion  just  as  it  did  in  the  law.  The  fact  of  birth 
decided  first  of  all  what  was  one's  nationality;  anybody  who  was 
born  on  French  soil  was  a  Frenchman,  whether  his  parents  were 
French  or  foreigners  ("  jus  soli  ").^  In  the  sixteenth  century  there 
were  certain  disputed  cases;  in  the  eighteenth  century  a  new  prin- 
ciple came  to  light  in  some  cases,  that  of  the  "jus  sanguinis."  It 
was  said  that  nationality  and  the  attachment  which  one  has 
for  a  country  could  not  depend  upon  an  accident  such  as  birth 
during  the  progress  of  a  journey  or  during  a  very  short  and  some- 
times compulsory  sojourn.  Chance  should  no  more  create  nation- 
ality than  it  does  relationship.    Thenceforth  there  is  a  tendency  to 

»  "Ord.,"  VII,  156;  Desmares,  295;  Lecoq,  290. 

2  When  he  delivered  letters  of  naturalization,  the  king  took  away  from  the 
lords  their  right  to  the  estates  of  deceased  aliens. 

^  Exceptions:  Ragueau,  see  "Aubenage";  Duvioulin,  on  "Anjou,"  41; 
"Maine,"  48;  "Tours,"  43;  Loysel,  71;  Glasson,  VIII,  296.  But  in  the  eight- 
eenth century  no  attention  was  paid  to  Customs  which  might  be  contrary 
to  this,  the  sovereignty  of  the  king  not  being  subject  to  prescription:  Argou, 

*  G.  de  Lapradelle,  ''Nationality  d'origine,"  1S94. 
_  ^  The  English  law  is  one  of  those  which  most  logically  have  admitted  the 
"jus  soli"  (c/.,  however.  Pollock  and  Mnitland,  I,  441:  discussion  in  1343; 
Blackstone,  II,  p.  54,  French  translation):  whoever  is  born  on  English  soil 
is  an  Englishman,  whether  his  parents  were  English  or  not;  and  no  one 
else  is  an  Enghshman  (excepting  he  be  naturalized);  on  the  other  hand, 
he  who  is  born  an  Englishman  can  only  cease  to  be  such  with  the  consent 
of  the  sovereign  (perpetual  allegiance).  Oath  of  allegiance:  Blackstone,  II, 
p.  46. 

874 


Topic  2]  PERSONS    UNDER   A   DISABILITY  [§  581 

take  into  account  the  nationality  of  the  parents  in  order  to  de- 
termine that  of  the  child ;  ^  thus  the  child  who  is  born  abroad  of  a 
French  father  is  a  Frenchman,  —  unconditionally  if  the  father 
has  not  given  up  all  expectation  of  return;  ^  and,  upon  condition 
of  setting  up  a  domicile  in  France,  if  he  has  given  up  this  expec- 
tation. Conversely,  the  status  of  being  a  Frenchman  is  lost  by 
the  establishment  of  a  domicile  abroad  without  expectation  of  re- 
turning.^ In  case  there  is  a  return  to  France,  then,  "ipso  facto," 
one  becomes  once  more  a  Frenchman  (without  any  retroactive 
effect). 4 

Foreigners  became  Frenchmen,  apart  from  the  annexation  of 
territory,  by  becoming  naturalized.  At  first  only  the  connection 
with  some  lord's  domain  or  the  acquiring  of  citizenship  in  some 
town  was  recognized ;  later  on  the  citizenship  of  the  king,  when  it 
took  on  a  personal  character,  served  as  a  preliminary  step  to  the 
acquiring  of  nationality.  From  the.nyddle  of  the  fourteenth  cen- 
tury the  king  could  give  letters  of  naturalization  without  consult- 
ing any  special  body  of  citizens.^  There  were  no  other  conditions 
required  than  the  pleasure  of  the  king.^  At  the  same  time, 
scarcely  any  people  were  naturalized  excepting  those  who  resided 
in  France.^  The  delivery  of  these  letters  ^  ordinarily  was  based 
on  the  payment  of  a  fee  which  was  in  proportion  to  the  fortune 

1  Blackstone,  II,  57,  French  translation,  says  that  in  this,  differing  from  what 
takes  place  in  England,  a  child  born  in  France  of  foreign  parents  is  a  for- 
eigner.    But  Pothier,  nos.  43  et  seq.,  says  the  contrary. 

2  Pothier,  no.  65;  "Arr.  de  I'Anglaise,"  1576;  Boerius,  "Decis.,"  13.  But 
cf.  Glasson,  VIII,  282;  Racquet,  II,  128. 

^  Penalties  agaiast  the  Protestant  Reformed  refugees  under  Louis  XIV; 
the  revolutionary  legislation  against  the  emigres  is  nothing  more  than  an 
imitation  of  the  provisions  taken  by  the  Old  Regime  against  the  Protestants: 
Maria,  "Acad.  leg.  Toulouse,"  1903. 

*  Pothier,  nos.  62,  63,  66  (details). 

5  Manuscript  letters  cited  by  Viollet,  372,  1  (in  1341:  we  declare  A.  G., 
together  with  his  children  already  born  and  to  be  born,  to  be  our  citizens 
of  Paris,  of  Montpellier  and  of  all  our  kingdom)  and  2  (in  1340).  Viollet, 
371,  cites  a  case  (which  is  very  exceptional)  of  naturalization  by  the  lord 
in  1497.  —  See  Ferriere.  —  Glasson,  VIII,  286,  distinguishes  between  letters 
of  naturahzation  and  letters  of  a  declaration  of  intention  of  becoming  nat- 
uralized. 

^  The  giving  of  letters  of  naturalization  gave  rise  to  abuses;  too  many 
of  them  were  given.  The  "Etats  de  Blois,"  1576,  asked  that  they  only  be 
granted  to  those  who  had  resided  ten  years  in  France:  Bacquet,  p.  73.  A 
Declaration  of  February,  1720,  revoked  all  letters  granted  to  non-residents. 
—  The  English  law  placed  many  obstacles  in  the  way  of  naturalization  and 
did  not  allow  a  naturalized  person  to  sit  in  Parliament. 

^  In  old  times  the  attainment  of  citizenship  assumed  ordinarily  the  es- 
tablishment of  a  residence,  the  acquiring  of  a  house  or  lands:  "Aries"  in 
Girnud,  II,  89;  "Salon,"  ih.,  p.  248. 

^  Registration  in  the  Chamber  of  Accounts:  Pothier,  no.  51.  Entering 
(Edict  of  Dec,  1703):  Glasson,  VIII,  284. 

875 


§  581]         STATUS  AND  CAPACITY  OF  PERSOXS      [Chap.  VI 

of  the  person  becoming  naturalized.^  Sometimes  these  letters 
were  collective,^  and  they  were  then  practically  confused  with 
that  which  is  ordinarily  called  the  "  benefit  of  the  law."  The  natu- 
ralized foreigner,  on  principle,  had  the  enjoyment  of  the  same 
rights  as  native  Frenchmen ;  ^  but  his  children  only  had  the  ad- 
vantage of  this  naturalization  if  they  had  been  expressly  included 
within  it. 

§  582.  The  Same.  —  (D)  Disability  of  aliens  or  right  of  succes- 
sion to  the  estate  of  deceased  aliens  "sensu  lato."  Aliens  were  ex- 
cluded from  ecclesiastical  benefices  and  public  office,^  even  from 
guardianship.^  But  they  had  the  enjoyment  of  many  private 
rights;  the  distinction  between  those  which  were  refused  them 
was  rather  arbitrary  and  rather  to  be  connected  with  old  tradi- 
tion. ]\Ioreover,  there  was  a  tendency  for  this  doctrine  to  depart 
from  its  theoretical  foundations;  it  granted  to  aliens  the  enjoy- 
ment of  those  rights  which  formed  a  part  of  the  law  of  nations 
and  refused  them  rights  based  on  local  law,  —  a  learned  stand- 
ard, but  one  which  did  not  have  any  great  practical  bearing.^  As 
a  matter  of  fact,  the  acquisition  even  of  immovables  and  granting 
"inter  vivos"  were  allowed  them,  —  for  example,  the  gift.  On  the 
other  hand,  they  were  incapable  of  acquiring  and  giving  *'  causa 
mortis"  (right  of  succession  to  the  estate  of  a  deceased  alien  "sensu 
stricto");  thus  they  could  not  receive  any  inheritance  upon  in- 
testacy or  by  will;  ^  nor  could  they  have  heirs  at  law  (with  the  ex- 

1  Exception  (Viollet,  p.  372),  for  Laurent  de  Medicis,  1519. 

2  Converted  Portuguese  Jews,  1550.  Workmen  of  the  Gobelins,  of  Beau- 
vais,  etc.  Declaration  of  1687:  those  who  have  served  five  years  in  the  army 
or  navy. 

3  A  few  restrictions:  Demangeat,  p.  166:  Ordinance  of  Blois,  1579,  4;  Warn- 
koenig,  II,  1S7.  Exemption  from  the  right  of  taking  the  estates  of  deceased 
alieas  only  conferred  rights  of  succession:  Pothier,  no.  60.  Denization  in 
England  differs  from  naturaUzation,  although  it  carries  with  it  some  of  the 
effects  of  the  latter;  it  results  from  letters  patent  from  the  king,  whereas 
naturaUzation  has  for  a  long  time  required  an  act  of  Parliament.  The  den- 
izen became  a  British  subject,  but  had  not  the  same  rights  as  an  Englishman 
by  birth.  He  could  acquire  lands,  excepting  by  succession  or  grant  from 
the  king;  he  remained  subject  to  the  special  taxation  which  affected  for- 
eigners; he  could  not  hold  public  office  nor  have  a  seat  in  Parliament:  Black- 
stone,  II,  p.  53,  French  translation;  Pollock  and  Maitland,  I,  443. 

*  Pothier,  loc.  cit.;  Glasson,  VIII,  287,  303  (special  provisions  against  for- 
eigners). 

6  Also  in  the  application  of  these  disabilities  there  are  controversies  which 
it  is  practically  impossible  to  settle:  the  alien  is  recognized  as  having  a  right 
to  marry,  to  contract,  and  to  acquire  ownership;  but  can  he  gain  by  prescrip- 
tion? Can  he  make  use  of  the  repurchase  by  a  person  of  the  same  lineage, 
etc.?  Glasson,  VIII,  290. 

fi  The  foreigner  can  have  a  domicile,  which  is  a  piece  of  property  in  fact. 

^  Cf.  treatises  on  the  law  of  succession,  for  example  Lebrun.     According 

876 


Topic  2]  PERSONS   UNDER   A   DISABILITY  [§  582 

ception  of  their  legitimate  children  born  and  residing  in  France)  ^ 
nor  dispose  of  their  possessions  by  will  (they  only  had  a  right  to 
make  a  will  of  five  sous  for  the  salvation  of  their  soul).^  They 
could  marry  and  enjoy  the  majority  of  the  family  rights.^  Out- 
side of  civil  disabilities  the  foreigner  was  subjected  to  certain  rules 
of  procedure  in  the  absence  of  which  he  w^ould  have  been  able  to 
"suck  the  blood  and  the  marrow  of  Frenchmen  and  then  to 
pay  them  by  becoming  bankrupt  and  by  going  back  to  his  own 
country."  1st.  The  plaintiff  who  is  a  foreigner  must  provide  a 
surety  "judicatum  solvi,"  that  is  to  say,  a  surety  guaranteeing 
the  payment  of  any  sentence  pronounced  against  him.^  2d.  The 
Ordinance  of  1667,  34,  1,  restricting  the  application  of  insolvent 
arrest,  applied  only  to  natives;  the  privilege  of  the  assignment 
of  property  was  refused  to  foreigners.  3d.  Foreigners  could  be 
sued  before  the  French  tribunals  by  Frenchmen  ^   (or  even  by 

to  Viollet,  this  rule  dates  from  the  fifteenth  century,  for  privileges  previous 
to  that  time  make  no  mention  of  it:  "Ord.,"  IV,  pp.  52,  430,  670.  It  is  quite 
certain  that  they  could  not  succeed  another  alien,  because  the  latter's  pos- 
sessions went  to  the  Treasury.  But  we  do  not  see  why  they  could  not  re- 
ceive the  property  of  their  French  relatives.  We  are  inclined  to  think  that 
the  silence  of  the  old  texts  is  to  be  accounted  for  in  another  manner;  in  the 
old  times  cases  of  relationship  between  natives  and  foreigners  were  very 
rare;  when  they  became  more  numerous  there  was  a  tendency  in  this  direc- 
tion. Loysel,  67:  foreigners  living  outside  of  France  could  receive  property 
situated  in  France  by  way  of  succession.  This  in  our  opinion  is  erroneous. 
Cf.,  however,  Glasson,  VIII,  294. 

1  Only  "the  heirs  procreated  of  his  body  in  lawful  marriage"  succeeded 
to  the  alien,  to  the  exclusion  of  the  king:  "Et.  de  St.  Louis,"  II,  31.  Having 
native-born  children  was  equivalent  to  the  alien's  having  letters  of  naturaUza- 
tion;  for  the  Treasury  having  no  further  interest,  it  became  possible  to  abide 
by  his  last  will  and  testament:  Loysel,  70. 

^  It  is  hard  to  believe  that  the  right  to  make  a  will,  which  was  looked  upon 
with  so  much  disfavor  formerly,  could  have  been  given  to  aliens.  Cf.,  how- 
ever, a  few  exceptional  texts:  "Et.  de  St.  Louis,"  III,  51,  ed.  Viollet';  "Cout. 
d'Anjou,"  ed.  B.-B.,  Ill  p.  Ix;  "Const,  de  Verm.,"  p.  80;  Viollet,  368. 

'  Bacquet,  1,  4:  formerly  one  must  have  the  permission  of  the  king  in  order 
to  marry. 

*  The  giving  of  surety  "judicatum  solvi"  is  only  the  public  nam  of  the 
Customs  to  abide  by  the  law,  kept  as  an  exception  for  the  foreign  demandant, 
whereas  formerly  it  was  required  for  everybody,  whether  demandants  or 
defendants,  natives  or  foreigners:  Littleton,  198;  Pollock  and  Maitland,  I, 
442;  "Abbeville,"  37;  "Montpellier,"  1205,  Art.  2;  Lnroque-Timbaut,  9,  etc.; 
Loysel,  858;  J.  Lecoq,  47,  49;  Imbert,  "Prat.,"  I,  30;  Bacquet,  VIII,  3.  It  is 
said  that  the  defendant  no  longer  needs  to  furnish  it  because  the  defense 
is  a  right  of  natural  law:  Stobbe,  I,  317;  Pappafava,  p.  32;  Glasson,  "Proc^d. 
civ.,"  I,  471. 

*  Even  if  he  resides  outside  of  France:  J.  Lecoq,  148.  In  matters  relating 
to  real  property,  competence  of  the  tribunal  of  the  locality  where  the  land 
is  situated;  in  matters  relating  to  personal  property,  of  the  tribunal  of  the 
domicile  or  the  residence  of  the  foreigner,  or  if  he  has  none  then  of  the  de- 
fendant's domicile.  In  the  old  times  (Boutaric,  I,  3),  the  courts  were  taken 
to  the  frontier;  later  (Ordinance  of  1667,  2,  7)  to  the  houses  of  the  Attorney- 
General  of  the  Parliaments:  Ordinance  of  1673,  12,  17. 

877 


§  582]         STATUS  AND  CAPACITY  OF  PERSONS      [Chap.  VI 

foreigners)  ^  contrary  to  the  ordinary  rules  of  jurisdiction  which 
would  have  held  that  they  should  be  judged  in  their  own  country. 
We  have  already  seen  whether  it  was  possible  to  apply  the 
national  law  in  their  case.^ 

§  583.  The  Same.  —  (E)  How  did  the  Crown's  succession  to  the 
estate  of  a  deceased  alien  disappearf  This  right,  after  having 
been  restricted  as  to  its  effects  by  the  monarchic  system,  was 
again  partially  done  away  with :  (a)  by  means  of  exemptions  for 
the  benefit  of  certain  classes  of  foreigners  (those  who  came  to  fairs, 
merchants,  Lombards,  and  Caorsins,  Swiss  and  Scots  in  the  service 
of  the  kings,  workmen  employed  in  the  royal  manufactories,  those 
who  held  rents  from  the  Hotel  de  Ville,  and  diplomatic  agents)  or  in 
certain  localities  (Toulouse,  Lyons,  Bordeaux,  Marseilles,  Langue- 
doc,  1484,  and  the  jurisdiction  of  the  four  great  Parliaments 
of  the  South,  etc.);  ^  (6)  by  means  of  international  treaties;  in  the 

^  Louet,  "C,"  42,  3.  Actions  between  foreigners  were  formerly  judged 
by  their  Consuls.  Cf.  on  the  institution  of  the  consulate,  treatises  on  in- 
ternational law,  for  instance  Bonfils-Fauchille,  etc.:  Valroger,  "'^.  R.  H.," 
1891;  Goldschmidt,  I,  181  and  "Mitth.  oest.  Gesch.,"  XIII,  337;  Schaube, 
"Konsulatdes  Meers  in  Pisa,"  1888;  "La  proxenieau  moyen  age"  ("R.  h.  Dr. 
int.,"  1896,  525);  Pappafava,  p.  32  (bibl.).  A  distinction  must  be  made 
between  three  kinds  of  consuls:  1st.  The  "baile"  or  national  consul,  a  true 
magistrate  sent  by  the  metropolis  to  the  districts  or  factories  of  the  East 
(at  least  after  the  first  crusade).  2d.  The  consul  elected  locally  by  a  foreign 
colony,  when  they  did  not  have  any  consul  "missus";  thus  according  to  the 
Statutes  of  Pisa  {cf.  ed.  Bonani),  wherever  five  natives  of  Pisa  happened  to 
be  they  were  allowed  to  choose  a  consul  for  themselves;  this  usage  must  have 
been  fostered  by  the  custom  of  each  trade  body  appointing  its  own  head  who 
was  often  known  as  their  consul;  thus  at  Pisa,  the  "ordo  maris"  (those  who 
carry  on  mari  time  trade  or  exercise  a  profession  connected  with  it)  has  its 
consuls  or  "consuls  of  the  sea";  the  consuls  "missi"  or  "electi"  abroad  are 
naturally  under  them;  but  in  France  the  consulate  of  the  sea  only  existed  at 
Perpignan  and  Montpellier,  to  which  places  it  must  have  come  from  Bar- 
celona; the  consular  jurisdictions  established  at  Toulouse,  in  1549,  Paris, 
in  1563,  and  Marseilles,  in  1565,  are  more  probably  connected  with  the  judicial 
powers  of  the  consuls  of  the  merchants;  cf.  also  the  jurisdiction  of  fairs  (cus- 
tody of  fairs,  and  in  the  fifteenth  century  preservation  of  fairs).  3d.  The 
consul  who  might  be  called  "proxene,"  because  of  the  analogy  with  the  old 
"proxenies";  that  is  to  say  he  is  an  inhabitant  of  a  town  where  a  foreign 
colony  has  been  established;  this  colony,  with  the  consent  of  the  metropolis, 
makes  a  contract  of  hospitality  with  him;  he  will  be  the  host,' the  protector 
and  the  judge  of  these  colonists  (example,  consul  of  the  inhabitants  of 
Narbonne  at  Pisa,  in  1275:  C.  Port,  "Essai  s.  I'hist.  du  comm.  marit.  de 
Narbonne,"  1854).  The  expansion  of  trade  caused  the  consul  to  lose  his 
character  of  host;  he  ceased  to  furnish  stores  and  lodgings  and  became  merely 
a  patron  and  defender.  This  form  of  consulship  was  developed,  especially 
among  the  Germanic  nations;  thus  until  1867,  Prussia  had  only  had  foreign 
consuls. 

2  Should  the  French  courts  judge  foreigners  according  to  the  French  law 
or  according  to  their  own  laws  (in  proportion  as  the  right  to  the  estates  of 
deceased  aliens  ceased  to  exist)? 

^  Cf.  details  and  texts  in  Demangeat,  p.  198  et  seq.:  Glasson,  VIII,  298; 
Isamhert,   Table,  see   "Aubaine,"   etc.;  Pigeonneau,   "Hist,   du   commerce," 

878 


Topic  2]  PERSOI^S   UNDER   A   DISABILITY  [§  583 

last  half  of  the  eighteenth  century  France  thus  entered  into  agree- 
ments with  sixty-six  States,  which  abolished  the  right  to  the  in- 
heritance of  deceased  aliens;^  but  this  system,  which  was  called 
one  of  diplomatic  reciprocity,  still  left  in  existence,^  ordinarily  as 
a  reduction  of  this  right,  the  right  of  "withdrawing"  (a  deduction 
of  from  10  to  20  per  cent  from  inheritances  which  had  devolved 
upon  foreigners)/  and  the  right  of  succession  to  estates  of  de- 
ceased aliens  itself  once  more  came  into  existence  if  the  treaty 
happened  to  be  repealed.^  The  Revolution,  being  inspired  by  the 
wtI tings  of  the  philosophers,^  took  more  radical  steps;  the  right  of 
inheriting  the  estate  of  a  deceased  alien  was  abolished  in  general 
by  the  Constituent  Assembly  on  the  6th  of  August,  1790,  as 
being  "contrary  to  the  principles  of  fraternity  which  ought  to 
bind  all  men  together. "  ^  This  generous  beginning  found  so  little 
echo  in  the  other  countries  that  the  framers  of  the  Civil  Code 
thought  that  France  played  the  part  of  a  dupe,  and  once  more 

I,  205  et  seq.  We  see  the  Lombards  as  early  as  the  twelfth  century,  "dis- 
puting with  the  Jews  the  monopoly  of  trade,  of  banking  and  usury";  under 
Philip  the  Handsome,  they  administered  the  royal  finances,  "conducted  the 
commercial  and  financial  education  of  France."  Later  on,  it  was  contended 
that  the  inhabitants  of  Milan  should  be  exempt  from  the  effects  of  the  right 
to  the  estate  of  deceased  aliens,  because  they  had  originally  come  from  a 
country  which  had  belonged  to  the  kings  of  France;  but  in  the  eighteenth 
century  this  theory  was  abandoned:  Britz,  509;  Demangeat,  p.  206;  Glasson, 
VII,  93.  Merchants  and  inhabitants  of  Caor,  in  England:  Pollock  and  Mait- 
land,  I,  447;  Huvelin,  "These,"  loc.  cit. 

1  Report  of  Roederer;  Locre,  "Legis.  civ.,"  II,  117;  Isambert,  Table,  see 
"Traites.'/ 

^  The  incapacity  of  transmitting  was  generally  done  away  with;  but  the 
foreigner  only  took  the  succession  of  his  French  relatives  if  he  were  naturalized. 

'  "Gabella  hereditatis,  "Detractus  reahs"  as  contrasted  with  the  "Gabella 
emigrationis"  or  "Detractus  realis":  see  "Encycl.  method.  Jurispr.,"  Ill, 
fJS7;Stobbe,  I,  315;  Gierke,  "D.  Privatr.,"  I,  450. 

''  Declaration  of  war;  ordinarily  strangers  had  a  certain  time  given  them 
within  which  to  leave  France;  when  tliis  time  had  e.vpired  they  were  liable 
to  arrest  and  to  have  their  possessions  confiscated. 

^  Montesquieu,  "Espr.  des  Lois,"  21,  17;  Guerra,  op.  cit.  Necker,  in  1787, 
pointed  out  that  the  fiscal  advantages  of  the  right  to  the  estates  of  deceased 
aliens  were  of  very  little  importance  in  themselves,  and  that  they  were  as 
nothing  compared  to  the  impediments  which  its  exercise  i)laced  in  the  way 
of  trade:  Glasson,  VIII,  298,  303  {Montchrestien,  "Econ.  polit.,"  p.  35  et  seq.: 
very  hostile  to  foreigners;  Babeau,  "Ville,"  I,  20). 

"  This  Decree,  according  to  general  opinion,  only  contemplated  the  in- 
capacity of  transmitting.  The  incapacity  of  taking  was  done  away  with 
bv  means  of  the  Decree  of  April  S,  1791,  Art.  3:  Decree  of  Aug.  13-17, 
1791;  "Const."  of  Sept.  3d,  1791,  VI;  Decree  of  the  5th  Fruct.,  year  III, 
Art.  335;  Viollet,  p.  854;  Sncjnac,  p.  246.  — Strangers  were  still  subject  to  give 
surety  "judicatura  solvi,"  and  to  physical  compulsion  (Decree  of  the  4th 
Flor.,  year  VI),  etc.  The  law  of  the  28th  Vend.,  year  VI,  allowed  the  govern- 
ment the  right  of  expelling  them  by  means  of  a  mere  administrative  pro- 
vision, a  right  which,  be  it  understood,  the  Old  Regime  had  practised:  "Code 
civ.  interm.,"  see  "Aubaine,"  "Etrangcrs";  Glasson,  VIII,  288. 

879 


§  583]        STATUS  AND  CAPACITY  OF  PERSONS      [Chap.  VI 

established  the  incapacity  to  grant  and  to  receive  by  way  of  a  gift/ 
which  had  formerly  affected  foreigners,  and  contented  themselves 
with  the  suppression  of  the  name  of  the  right  to  inherit  from  de- 
ceased aliens.  The  only  thing  which  could  make  it  disappear  was 
a  treaty  establishing  reciprocity.  This  was  a  measure  of  reprisal 
whose  deplorable  consequences  were  felt  in  the  crisis  which  was 
experienced  throughout  France  following  the  wars  of  the  Empire; 
the  Restoration  re-enacted  the  abolition  above  referred  to  (Law 
of  July  14,  1819)  with  a  view  to  drawing  foreign  capital  into  our 
impoverished  country.  Thus  from  motives  of  interest  it  did  what 
the  Revolution  had  done  with  a  humanitarian  motive. 

§  584.  Those  Civilly  Dead  are,  1st,  the  monks,  following  their 
renunciation  of  the  world;  2d,  those  condemned  to  capital  punish- 
ment as  a  consequence  of  conviction. 

§  585.  Entering  Religious  Orders  resulted  in  the  eyes  of  the 
Church  in  death  to  the  world.  From  this  it  should  have  been  con- 
cluded that  from  the  time  of  his  entrance  into  a  monastery  the 
monk  could  not  acquire  anything,  and  that  the  possessions  which 
he  had  at  that  time  should  pass  to  his  heirs.  But  this  is  not  the 
role  given  to  him  by  the  Justinian  law.-  According  to  this  legisla- 
tion he  becomes  a  sort  of  "alieni  juris,"  who  can  have  nothing  of 
his  own,  but  who  can  receive  for  his  monastery;  all  his  present  and 
future  possessions,  even  those  he  inherits  from  his  relatives,  go  to 
the  monastery,  without  his  testamentary  heirs  or  heirs  at  law  hav- 
ing any  claim  whatsoever  over  them.  The  Theodosian  Code  did 
not  go  so  far  as  this;^  it  made  a  distinction  between  the  present 
and  the  future;  with  respect  to  the  future  the  personality  of  the 
monk  was  absorbed  by  that  of  the  monastery.  He  acted  as  a 
means  of  receiving  for  the  benefit  of  the  monastery;  with  respect 
to  the  past  his  possessions  were  conferred  upon  his  testamentary 
heirs  or  heirs  at  law;  the  monastery  only  took  when  one  or  the 
other  of  these  heirs  was  lacking.  It  is  with  the  Theodosian  tradi- 
tion that  the  old  French  law  seems  to  be  connected.^    Once  he  had 

1  Ci\al  Code,  Arts.  726,  912.     Even  by  gift  (contrary  to  the  old  law). 

2  "L.  Deo  nobis,"  "Cod.  Just.,"  1,  63,  56,  and  Auth.  "Ingressi,"  "Si  qua 
MuUer,"  "Nunc  autem";  "Cod.  Just.,"  1,  2,  13;  1,  3,  20;  "Nov."  5,  c.  5;  76 
and  123,  38;  Gratian,  c.  7,  9,  10,  C,  19,  q.  3;  c.  11,  13,  C,  12,  q.  1;  c.  16, 
C,  18,  q.  2;  Dig.  X,  3,  35,  6;  "Petrus,"  1,  24,  25,  26,  56  (reservation  of  the 
"Falcidia,  sic,"  for  the  descendants). 

3  "Cod.  Thcod.,"  5,  3,  1;  "C.  Eur.,"  335;  "Wis.,"  4,  2,  12. 

*  "Capitul.,"  Index,  see  "Monachus,"  "Monasterium,"  " Sanctimoniahs " ; 
"Cap.,"  1,  114  (authorization  of  the  sovereign  necessary  before  a  free  man 
could  enter  a  monastery);  1,  137  (the  free  man  who  becomes  a  monk  may 
give  liis  possessions  to  the  monastery);  5,  379  (a  monk  leaves  his  monastery; 

880 


Topic  2]  PERSONS   UNDER   A   DISABILITY  [§  585 

entered  a  monastery/  the  monk,  stripping  off  his  own  personality, 
could  only  receive  for  the  benefit  of  his  community;  ^  in  the  same 
way  as  children  who  were  not  emancipated  could  receive  for  the 
benefit  of  their  family.  But  the  monastery  did  not  take  those 
possessions  which  he  had  at  the  time  of  his  entering  it ;  he  was  re- 
garded as  being  dead  at  that  time,  and  from  this  fiction  there 
arose  two  consequences:  1st,  his  inheritance  vested  for  the  bene- 
fit of  his  relatives;  ^  2d,  he  was  thenceforward  incapable  of  in- 
heriting upon  intestacy  or  by  virtue  of  a  will,  either  in  his  own 
interest  or  in  the  interest  of  the  monastery.^  In  this  sense  the  civil 
death  with  which  he  was  affected  was  the  equivalent  of  real  death. ^ 

all  his  possessions  remain  the  property  of  the  monastery,  even  those  which 
he  did  not  take  into  the  monastery);  5,  381  (id.);  6,  110  (all  the  possessions 
of  the  monks  belong  to  the  monastery,  even  if  they  have  children).  Cf. 
"Petrus,"  loc.  cit. 

1  As  to  the  entering  of  religious  orders  see  Loysel,  346.  NulHty  of  tliis 
if  done  secretly:  Ordinance  of  1566,  55;  Declaration  of  July  10,  1566;  Du- 
moulin,  on  "Blois,"  147;  Louet,  "C,"  8,  42;  Register  of  the  taking  of  the 
habit  of  a  friar  and  of  novitiates;  Ordinance  of  1667,  20,  15:  Declaration  of 
April  6,  1736,  etc.;  Isambert,  loc.  cit.;  D'Aguesseau,  ed.  1772,  IV,  49,  100. 
As  to  the  necessity  that  the  Order  be  one  recognized  by  the  State,  in  order 
that  the  entering  of  it  should  be  valid,  see:  Le  Vayer  de  Boutigny,  "Autor. 
des  rois  touchant  I'admin.  de  I'Eglise,"  p.  234;  "De  I'autor.  du  roi  touch. 
I'age  necess.  a  la  prof,  relig.,"  1669,  1751;  Landry,  pp.  69,  73. 

2  Innocent  IV,  "in  t.  de  Privel.,"  c.  13,  no.  3.  Cf.  "Nov."  5,  5  and  123,  38. 
—  "L.  d.  Droiz,"  I,  24;  Bucherellus,  "Inst.,"  p.  181;  "Decis.  Cap.  Tolos.," 
Table,  see  "Monachus."  Monks  could  be  called  upon  as  witnesses  before 
the  law,  because  their  honor  was  absolute:  Ordinance  of  1670,  6,  3;  represent 
their  Monastery  before  the  court;  have  a  benefice  or  a  "  peculium  ":  Laiidry, 
p.  37.  But  they  could  not  hold  public  office:  Capitulary  VI,  124,  etc.;  Bou- 
taric,  II,  2.  A  Conclave  of  Nantes,  c.  19  {Labbe,  IX,  473),  forbade  unmarried 
women  and  widows  consecrated  to  God  to  take  part  in  the  sittings  of  the 
courts.  —  England:  before  the  Norman  conquest  the  fiction  of  civil  death 
does  not  seem  to  have  been  strictly  enforced. 

3  He  could  not  make  a  will:  "Lib.  de  I'Egl.  GaUic,"  26;  Ordinance  of 
1579,  29;  of  1735,  21;  Landry,  p.  45. 

*  Richer,  p.  677,  cites  an  Order  of  the  Exchequer  of  Normandy  in  1207; 
Brodeau,  on  Louet,  "C,"  VIII,  22,  an  order  of  the  King's  Court  in  1225 
(Lizet's  note);  Marnier,  "Echiq.  de  Norm.,"  p.  116;  Glanvill,  13,  5,  6.  William 
of  Auvergne,  Bishop  of  Paris,  1128-49,  was  filled  with  indignation  at  see- 
ing children  compelled  to  enter  monasteries,  "quemadmodum  catuh  et  por- 
culi  quos  matres  non  sufficiunt  enutrire"  with  the  object  of  having  them 
become  civilly  dead  ("civihter  moriantur"),  that  is  to  say,  in  order  that  they 
might  be  deprived  of  their  hereditary  share:  "Tract,  de  moribus,"  c.  9;  P. 
de  Fontaines,  p.  49;  "Gr.  Cout.,"  2,  40;  "Summa  Norm.,"  25,  10;  Loysel, 
345;  "Paris,  A.  C,"  132;  Laurrikre,  on  "Paris,"  337;  Landry,  p.  13.  Nor  could 
they  receive  any  gifts:  Richer,  p.  804.  Cf.  Loysel,  343  and  Lauribre's  notes. 
Ecclesiastics  inherited  from  their  relatives,  and  their  relatives  from  them;  they 
also  had  the  right  to  make  a  will :  Ordinance  of  1368;  "Stil.  Pari.,"  111,37. 
According  to  the  ancient  custom  the  church  with  which  they  were  connected 
inherited  at  least  the  possessions  which  they  had  acquired  since  their  pro- 
motion to  the  priesthood:  "Petrus,"  I,  26;  Buche,  "N.  R.  H.,"  1884,  p.  573. 

8  "Capit.,"  I,  38,  c.  16  (Compidgne);  40,  c.  21  (Verberie);  Dig.  X,  4,  6,  3; 
Council  of  Trent,  s.  24,  9;  Richer,  p.  241.  —  "Sachsensp.,"  I,  25;  "Preuss. 
Landr.,"  §  1199. 

881 


§  585]  STATUS   AND   CAPACITY  OF  PERSONS  [Chap.  VI 

From  the  thirteenth  century  it  is  found  to  be  accepted  with  all  its 
consequences  by  the  Church  as  well  as  the  State,  at  least  in  France. 
There  are  two  reasons  which  especially  account  for  the  French 
Custom:  (a)  in  the  conflict  which  took  place  between  families  and 
monasteries  it  applied  the  principle  of  the  preservation  of  property 
in  families;  like  the  man  who  is  emancipated,  the  monk  might 
find  himself  impliedly  disinherited,  simply  owing  to  the  fact 
that  he  had  left  the  paternal  house;  in  shutting  up  younger 
children  in  a  cloister,  their  parents  often  had  no  object  other 
than  that  of  creating  a  better  share  for  their  elder  children;  ^ 
(6)  the  disabilities  of  monks  had  their  special  place  in  the 
old  system  of  restrictions  as  against  people  in  mortmain;  it 
was  feared  that  they  might  monopolize  all  the  possessions  in 
the  kingdom.^ 

At  the  same  time  that  it  did  away  with  the  religious  orders, 
the  Revolution  allowed  the  incapacity  of  inheriting  which  affected 
their  members  to  remain  for  some  time;  but  a  decree  of  the  Con- 
ventional so  did  away  with  this.^ 

1  Law  of  May  24- June  2d,  1825,  Art.  5:  limitation,  in  the  interests  of  the 
family,  of  the  right  to  dispose  belonging  to  nuns  who  were  members  of  an 
authorized  community  (one-fourth  of  their  possessions). 

2  "Gr.  Cout.,"  2,  21,  p.  258  (nothing  shall  escape  them);  Chassaneus, 
on  "Bourg.,"  7,  13. 

3  The  Decree  of  Feb.  13,  1790,  no  longer  recognized  monastic  vows;  as 
a  consequence  the  rehgious  orders  were  done  away  with;  the  monks  were 
free  to  leave  their  monasteries  but  were  not  obliged  to  do  so.  The  civU  death 
which  had  formerlj'  e.xisted  was  found  to  be  abolished  by  these  provisions. 
—  The  Legislative  Assembly,  on  the  17th  and  18th  of  August,  1792,  pro- 
nounced the  dissolution  of  religious  communities;  their  houses  were  vacated 
and  their  possessions  sold  as  national  possessions;  it  was  desired  "to  dispel 
the  remains  of  fanaticism  to  which  the  former  monasteries  offered  an  all  too 
easy  refuge."  "Believing  that  a  State  wliich  was  truly  free  should  not 
allow  the  existence  of  any  corporation  in  its  midst,  not  even  those  which,  de- 
voted to  public  enlightenment,  have  deserved  well  at  the  hands  of  the  father- 
land," the  Assembly  also  did  away  with  every  lay  or  religious  corporation, 
whether  of  men  or  of  women,  even  those  which  were  devoted  exclusively 
to  the  hospital  service.  The  members  of  rehgious  orders  who  were  thus 
expelled  had  a  right  to  a  pension,  on  condition  of  taking  the  oath  of  citizen- 
ship, if  they  were  men.  The  wearing  of  ecclesiastical  clothing  was  forbidden: 
Aulard,  "La  Revol.  Fr.  et  les  Congreg.,"  1903.  The  Law  of  Feb.  13-19,  1790, 
no  longer  recognized  monastic  vows,  and  yet  the  Law  of  Feb.  20,  1790, 
declared  that  members  of  religious  orders  who  should  leave  these  orders 
still  remained  incapable  of  inheriting  and  could  only  receive  rents  for  life 
by  will  or  as  gifts.  However,  according  to  the  Law  of  March  19-26, 
1790,  they  were  to  inherit  before  the  Treasury.  But  a  Decree  of  the  18th 
Vend.,  year  II,  allowed  them  to  inherit  generally:  Decree  of  5  Brum.,  year,  II, 
Art.  4;  17  Niv.,  year  II,  Art.  3  (retroactiveness  going  back  to  July  14,  1789); 
"Code  civil  interm.,"  Table,  see  "Religieux."  In  every  other  respect 
they  had  gone  back  to  civil  life  by  1790  (thus  they  could  marry):  Sagnac, 
p.  252.  As  to  the  dissolution  of  congregations  cf.  expulsion  of  the  Jesuits 
in  1764:  Gazier,  "R.  hist.,"  XIII,  308;  Dounrche,  "La  banqueroute  du 
p.  Lavallete"  ("France  judic,"  1880-81, 1,  73);  Couzard,  "Deedicto  Rothom,, 

882 


Topic  2]  PERSONS   UNDER   A   DISABILITY  [§  586 

§  586.  The  Penal  Civil  Death  of  the  Old  Regime  makes  one 
think  of  the  system  of  outlawry  in  the  Germanic  law,  the 
"capitis  deminiitio"  and  infamy  of  the  Roman  law,  and  the  ex- 
communication of  the  canon  law.  The  Germanic  process  of  out- 
lawry ^  meant  a  true  civil  death  in  the  full  force  of  the  term,  for  the 
individual  who  was  subjected  to  it  lost  his  possessions  and  his 
family  rights.^  The  hanishnent  of  the  Carolingian  and  feudal 
times,  which  is  only  a  milder  form  of  it,^  made  one  lose  the  right 
to  appear  in  court,  but  did  not  deprive  one  of  the  right  of  living, 

1603,"  1900.     See  also  the  trial  of  the  Templars,  Ch.-V.  Langlois,  "Rev. 
des  Deux-Mondes,"  1891,  p.  384. 

1  "Sal.,"  56;  "Chilp.  Ed.,"  10,  etc. 

2  Cf.  formulae  in  Grimm,  40:  you  shall  be  outside  the  law,  your  wife  shall 
be  a  widow,  your  sons  shall  be  orphans,  your  fiefs  shall  revert  to  the  lord, 
and  your  possessions  go  to  your  sons,  your  body  shall  become  the  prey  of 
wild  beasts,  etc.  It  would  have  been  the  same  thing  had  they  said  that  he 
was  looked  upon  as  dead,  and  this  is  what  was  already  done  by  the  "Capit. 
Saxon.,"  797,  10;  "Const.  Sic.,"_2,  3;  Alb.  de  Rosate,  "de  stsit.,"  4,  14;  "Inc. 
Auct.,"  2,  10,  3:  "finitur  (societas)  morte  natural!  vel  civih."  —  Outlaw, 
"utlagatus,"  "exlex,"  in  England:  see  Du  Cange.  —  The  German  terminology 
is  a  confused  one:  "rechtlos"  (without  any  right);  "ehrlos"  (without  honor); 
"echtlos"  (unlawful,  without  a  right  to  be  considered,  "privatio  legalitatis"). 
The  "Rechtlos"  has  a  "wergeld"  which  is  very  small  and  sometimes  a  mock- 
ery; "Sachsensp.,"  Ill,  45:  a  cartload  of  hay  for  the  bastard,  the  shadow  of 
a  man  for  the  buffoon,  the  reflection  of  a  shield  in  the  sun  for  the  champion, 
etc.  There  is  a  question  as  to  whether  he  lost  his  social  rank,  for  example, 
his  title  of  nobihty.  —  Budde,  "Rechtlosigkeit,"  1842;  Hildebrmul,  "Entz. 
d.  blirg.  Ehre,"  1844;  Gierke,  "D.  Privatr.,"  §  52  (bibl.).  According  to  the 
latter,  the  "Echtlos"  or  "elos"  is  confused  with  the  "Friedlos."  The 
"Rechtlos,"  who  cannot  appear  in  court  ("juri  stare"),  cannot  be  a  judge, 
a  witness,  etc.,  but  keeps  his  family  rights  and  has  an  inheritance;  offenses 
against  him  are  punishable.  One  is  "rechtlos":  1st.  Because  of  a  judgment 
condemning  to  corporal  punishment  ("Hals  und  Hand,"  "  Haut  und  Haar"). 
2d.  As  a  consequence  of  the  exercise  of  a  dishonorable  profession.  3d.  As 
a  consequence  of  being  born  out  of  wedlock.  One  is  "ehrlos,"  generally 
speaking,  when  one  is  declared  to  be  so  by  a  judgment;  in  a  case  of  tliis  sort, 
one  can  neither  lend  nor  be  heard  as  a  witness  nor  hold  public  office. 
After  the  reception  of  the  Roman  law,  the  theory  of  infamy  at  law  and  in 
fact  overthrew  these  old  ideas.  As  to  the  honor  of  each  class  of  society, 
cf.  ib.,  I,  422,  "Scalbarkeit,"  "Anruchigkeit,"  ib.,  and  Stubbe,  §  47. 

^  The  effects  of  banishment  have  varied  greatly  according  to  localities, 
but  they  have  often  preserved  a  great  severity  until  a  comi)arativcly  recent 
period.  The  man  banished  is  "omni  jure  omnique  actu  legitimo  ipso  jure 
privatus,"  according  to  the  "Coast,  pacis"  1235,  10.  He  loses  his  rank, 
his  fiefs,  his  judicial  power;  his  property  is  confiscated;  he  can  no  longer 
appear  in  court,  either  as  a  party  or  as  a  witness:  "Sachsenspicgel,"  I,  38;  11, 
51,  1.  At  Milan  in  1216,  the  first  comer  would  without  fear  of  punishment 
attack  him  in  person  or  property.  At  Rome  in  1425,  his  murderer  was  only 
punished  with  a  fine  of  twenty  livres.  According  to  the  Venetian  law,  in 
1531,  liis  nearest  relations  themselves  cannot  shelter  him  without  incurring 
the  penalty  of  banishment.  Even  in  the  time  of  Alb.  de  Rosate  the  question 
of  the  upholding  of  his  marriage  was  still  being  discussed:  "de  statutis," 
4,  4;  according  to  general  opinion  there  was  no  occasion  for  anything  more 
than  separate  maintenance.  The  "Jura  min.  Col.,"  7,  allowed  liis  wife 
to  receive  him,  but  declared  that  their  children  would  be  illegitimate:  Fer- 
tile, §  101. 

883 


§  586]         STATUS  AND  CAPACITY  OF  PERSONS      [Chap.  VI 

if  one  can  speak  of  it  in  that  way,^  It  was  the  same  thing  with 
excommunication;  and  there  was  this  special  feature,  that  the 
person  excommunicated  recovered  his  rights  if  he  should  be  ab- 
solved. The  secular  tribunals  even  ended  by  no  longer  taking  into 
account  the  plea  of  excommunication  which  was  set  up  against 
parties  in  order  to  avoid  answering  them.^  It  was  upon  these 
customs  that  the  Roman  ideas  of  the  "capitis  deminutio"  and  in- 
famy ^  were  superposed.  The  term  civil  death  became  a  technical 
one  ■*  and  below  it  was  placed  infamy,  with  its  two  degrees,  —  in- 
famy at  law  and  infamy  in  fact. 

Civil  death  was  on  principle  likened  to  natural  death,  excepting 
upon  certain  points  where  the  too  severe  effects  of  the  fiction  had 
been  done  away  with  by  reason  of  humanitarian  or  religious 
ideas.  ^  Thus  the  person  who  was  civilly  dead  was  left  free  to  per- 
form those  acts  without  which  it  would  have  been  impossible  for 
him  to  live  (to  contract,  to  acquire  for  a  consideration  and  to 
appear  in  court  through  a  guardian).  Thus,  again,  although  he 
was  held  as  being  incapable  of  marrying  in  the  future,  the  mar- 
riage which  he  had  already  contracted  before  the  judgment  was 
not  dissolved;  the  religious  tie  of  the  sacrament  was  not  affected, 

1  As  to  the  freebooter,  the  bandit,  "diffidatus,"  "forjudicatus,"  etc.: 
see  Du  Cange,  and  "Exterminare."  Cf.  Michelet,  "Orig.,"  p.  398;  "Bord., 
A.  C,"  28  (part  played  by  the  dead);  Beaumanoir,  34,  32;  "C.  d'Anjou," 
L.  28.  Cf.  Beaumanmr,  34,  32;  30,  36;  39,  16;  61;  P.  de  Fontaines,  13,  6  et 
seq.  (loss  of  the  right  to  be  heard  and  to  reply  in  court);  17,  8;  "Jostice," 
Table,  see  "Forb.";  "A.  C,  Bord.,"  27,  42;  'Ass.  de  J6r.,"  I,  p.  114; 
"T.  A.  C,  Norm.,"  88  (devastation);  "T.  A.  C,  Bret.,"  109;  "Et.  de  St. 
Louis,"  I,  28. 

2  "Capitul.,"  V,  62;  Friedberg,  104  (bibl.);  Hinschius,  §  261;  Dig.  X, 
5,  39,  etc.;  G.  Durand,  "Spec,"  4,  4;  Lancelot,  "Inst.,"  IV,  13;  Hericourt, 
"E.,"  22.  Measures  taken  by  the  secular  power  in  order  to  lead  persons  who 
had  been  excommunicated  to  repent;  Capitulary  of  789,  35  (I,  326;  II,  214); 
VI,  142;  Ordinance  of  1228,  1269,  etc.;  Corvin,  "Jus.  can.,"  4,  43.  But  ac- 
cording to  the  "Gr.  Cout.,"  II,  4.5:  "non  repelluntur  ab  agendo."  Ordinance 
of  July  3d,  1371  (the  secular  judges  shall  compel  them  to  obtain  absolution, 
but  they  shall  not  be  compelled  to  pay  too  dearly  for  absolution);  "T.  A.  C, 
Norm.,"  2,  3;  Giraud,  "Essai,"  II,  31,  93,  121  ■,^Desmares,  155;  "Et.  de  St. 
Louis,"  I,  127;  "L.  d.  Dr.,"  645;  Boutaric,  II,  12;  Pollock  and  Maitland, 
I,  461;  Viollet,  "Hist,  des  inst.  poht.,"  I,  380;  II,  269.  We  have  seen  that 
excommunication  was  used  in  order  to  give  more  force  to  rights  {Briegleb, 
"Gesch.  d.  Executiv.  process,"  1845,  p.  132);  against  dead  persons  and  animals: 
D'Adossio,  "Bestie  delinquenti,"  1892. 

3  Stobbe,  I,  364. 

*  As  early  as  the  fourteenth  century  the  expression  "civil  death"  was  in 
current  use:  Gui  Pape,  "Q.,"  547.  "de  morte  ci\'ih  et  naturali." 

^  In  the  latest  stages  of  the  law,  civil  death  results  from  condemnation 
to  a  natural  death,  to  the  galleys  for  life  and  to  banishment  for  life.  More- 
over, the  condemnation  must  have  been  pronounced  after  the  defendant 
has  had  a  hearing,  for  the  man  who  is  condemned  by  default  is  in  a  special 
position.  Cf.  as  to  this  position,  Pothier,  no.  98.  See  also  Humbert,  p.  193 
(validity  of  contracts  in  the  "jus  gentium"). 

884 


Topic  2]  PERSONS    UNDER   A   DISABILITY  [§  58G 

they  said,  by  the  sentence  of  the  judges,  although  it  no  longer 
could  produce  civil  effects.  The  man  civilly  dead  lost  the  power 
of  the  husband  and  the  power  of  the  father;  the  system  of  posses- 
sions between  him  and  his  spouse  ceased  to  exist,  but  in  the  eyes 
of  the  Church  this  spouse  was  none  the  less  married  and  could  not 
contract  a  new  marriage.  The  possessions  of  the  man  civilly  dead 
were  confiscated.^  He  could  not  transmit  them  upon  intestacy 
or  by  will,  nor  could  he  take  any  inheritance  nor  receive  as  a  gift 
(excepting  for  maintenance).^  Civil  death  disappeared  from  the 
penal  code  of  1791 ;  but  this  did  not  prevent  the  Revolution  from 
declaring  the  "emigres,"  and  generally  the  deported  also,^  to  be 
civilly  dead.    It  is  found  once  more  in  the  Civil  Code.^ 

The  infamous  ^  were  excluded  from  holding  public  office;  they 
could  not  be  witnesses  in  court  or  to  notarial  deeds;  finally,  they 
■were  also  held  as  being  incapable  of  making  a  will.  Infamy  re- 
sulted as  matter  of  law  from  certain  penal  sentences  ^  (a  term  at 
the  galleys,  flogging  and  branding,  the  pillory,  the  iron  collar, 
censure,  and  public  penance).''  It  was  also  connected  with  the  ex- 
ercising of  shameful  professions,^  but  in  the  last  stages  of  the  law 

»  Cf.  Loysel,  839  et  seq.;  Domat,  I,  pr.  2,  2,  12;  Tanon,  "Inquis.,"  p.  623. 

^  As  to  letters  of  remission,  pardon,  recalling,  cf.  Pothier,  no.  105. 

3  Decree  of  March  28,  1793.  Cf.  Decree  of  Sept.  17,  1793;  Lafemere, 
"Hist,  des  principes  de  la  Revolution,"  1850,  p.  294.  Cf.  Protestant  refugees 
after  the  revocation  of  the  Edict  of  Nantes. 

*  Abolished  by  the  Law  of  May  31,  1854.  General  confiscation  had  been 
abolished  by  the  Charter  of  1814,  Art.  66. 

6  Tacitus,  "Germ.,"  6;  "L.  Wisig.,"  ed.  Zeumer,  see  Table,  "Capitul.," 
see  Table;  Capitulary  of  789,  44;  809,  28,  etc.;  "L.  long.  Car.,"  45,  67; 
"Siete  Part.,"  7,  5  and  6  (as  to  infamy);  Sachsenspiegel,"  1,  38,  2;  Beaumanoir, 
39,  42,  63,  etc.;  P.  de  Fontaines,  c.  13;  "Ass.  de  J^r.,"  "C.  des  B.,"  151;  Bou- 
taric,  2,  2;  Loysel,  835;  "Lib.  de  I'Egl.  gall.,"  22;  "Tract,  univ.  jur.,"  XI; 
Pertile,  III,  227;  Kruiit,  §  49. 

®  Disgraceful  penalties  in  use  during  the  latter  part  of  the  Middle  Ages: 
U.  Robert,  "Les  signes  de  I'infamie  au  moyen  age,"  1889;  Tanon,  "Hist, 
des  trib.  de  I'inquis.,"  p.  490;  Michelet,  377.  —  As  to  persons  who  have  failed, 
insolvents,  "Arch.  stor.  lomb.,"  March,  1876;  Kohler,  "Shakesp.,"  50,  etc. 

'  Letters  of  rehabilitation  restoring  the  disgraced  person  to  all  his  rights. 
Cf.  letters  recalling  a  banishment:  Pothier,  no.  108  et  seq. 

*  Disgraceful  professions  are  ordinarily  the  following:  usurers  ("Const. 
de  Catalogue,"  I,  154;  Peguera,  "Decis.,"  1613,  XXXI,  no.  1;  Stobbe,  I, 
359;  "T.  A.  C,  Norm.,"  49);  keepers  of  gambling  houses  and  professional 
gamblers  ("Const.  Sic,"  III,  90;  Delnrnare,  "Police,"  3,  2,  4);  women  of  evil 
life,  and  "lenones"  or  bullies  (Regulation  of  1380  for  Pcrpignan;  "Siete  Part.," 
VII,  22;  "Cout.  d'Anjou,"  F,  559;  Delnrnare,  "Police,"  3,  3,  5;  Muyart  de 
Voiir/Jans,  "Loix  crim.,"  Ill,  4);  "baratieri,"  "ribald!,"  debauchees  (see  Du 
Cam/e;  "Siete  Part.,"  VII,  16,  9;  Pertile,  III,  229:  the  chief  or  king  of  the 
debauchees  has  a  disciplinary  power  over  women  of  the  town  in  various  places; 
"Siete  Part.,"  loc.  cit.);  the  executioner  (he  is  often  chosen  among  male- 
factors or  debauchees:  Pertile,  III,  230;  Caklero,  "Decis.  Cathol.,"  1726. 
I,  l.')6);  champions  in  the  duels  at  law  ("Sachsenspiegel,"  I,  37);  story  tellers, 
buffoons  or  actors  ("Sachsenspiegel,"  ib.;  see  Guyot).    These  "persona;  turpes " 

885 


§  586]  STATUS    AND   CAPACITY   OF   PERSONS  [Chap.  VI 

this  was  an  infamy  in  fact,  something  hke  the  Roman  "levis 
nota,"^  whose  effects  are  vaguely  defined,  thus  differing  from  those 
which  were  produced  by  the  infamy  at  law.^ 

§  587.  Lepers  and  Outcasts.  —  The  formidable  malady  of  lep- 
rosy has  always  been  known  in  Europe,  but  after  the  crusades 
it  became  an  epidemic  and  raged  with  such  intensity  that  those 
who  were  affected  with  it  formed  a  class  of  pariahs.  The  Church 
and  the  State  had  to  borrow  from  the  Mosaic  legislation  ^  its 
severe  measures  of  segregation  in  order  to  prevent  all  contagion. 
The  unfortunates,  "mesels"  or  "meseaux,"  ^  who  were  affected 
with  the  malady  of  St.  Lazarus  or  St.  Ladre  ^  and  called  "ladres" 
like  him,  were  segregated  from  the  rest  of  society,^  shut  up  in 
lazarets  or  leper-houses,^  or  else  compelled  to  live  in  a  separate 
house,  bound  to  wear  garments  of  some  striking  color  ^  and  to 

among  whom  bastards  or  children  of  priests  were  included  ("Sexto," 
I,  11;  Fertile,  III,  230)  could  neither  bring  an  accusation  nor  appear  as 
witnesses  in  court,  etc.  Cf.  "Capit.,"  VI,  362,  and  also  III,  88;  "Siete 
Part.,"  VII,  6.  At  Perpignan,  the  Jews  were  grouped  together  at  the  "Call," 
the  gamblers  at  the  "Tafurerie,"  the  women  of  the  town  at  the  "Partit," 
the  executioner  and  his  assistants  at  the  "Escarcellerie,"  and  the  persons  who 
were  vagrants  in  certain  low  alleys:  Desplanques,  "Les  infames  dans  I'anc. 
dr.  roussillon,"  1893. 

1  Cf.  our  certificate  of  good  conduct  and  morals:  Argou,  I,  25;  "Dec.  Cap. 
tolos.,"  q.  174. 

'^  The  barbarian  laws  drew  a  distinction  between  witchcraft  (love-potions, 
magic  draughts,  etc.)  and  vampirism  (the  "strix,"  "masca,"  "lamia,"  to 
devour  and  to  dry  up  the  blood  of  men,  "intrinsecus  comedit";  feast  of  vam- 
pires or  nocturnal  revels).  Details  in  Hansen,  op.  cit.  There  was  a  regular 
epidemic  of  witchcraft  in  the  fourteenth  and  fifteenth  centuries;  when  the 
Albigeois  had  disappeared  the  sorcerers  were  persecuted.  Cf.  Dig.  X,  5,  21; 
Lancelot,  "Inst.,"  IV,  5;  "Siete  Part.,"  VII,  24;  Brillon,  see  "Demon"; 
Delamare,  "Police,"  III,  7,  4;  Ferricre,  see  "Sortilege";  Funck-Brentano, 
"Le  drame  des  poisons,"  1900,  4th  ed.  As  to  bewitching,  cf.  the  trial  of  Robert 
d'Artois,  by  Guichard  Bishop  of  Troyes.  —  "Tract,  univ.  jur.,"  XII. — 
Pollock  and  Maitland,  II,  544. 

'  "Leviticus,"  xiii  et  seq. 

*  From  "misellus,"  which  is  a  derivative  of  misery:  Loysel,  419  (wretched, 
sickly  swine);  Ragueau,  see  "Langeieur";  "Cout.  de  Tonniens,"  Arts.  15  and 
16. 

^  Cf.  the  parable  of  Dives  and  Lazarus,  "Luke,"  xvi;  "John,"  xi. 

®  They  cannot  be  witnesses  in  court  nor  can  they  present  themselves  there 
in  person:  Beaumanoir,  39,  33;  63,  10. 

'  Although  leprosy  was  looked  upon  as  a  punishment  from  heaven,  more 
than  any  other  form  of  illness  (Mary  sister  of  Moses;  Gehazi  the  servant  of 
Elisha),  both  the  Church  and  society  tried  to  alleviate  the  hard  fate  of  its 
victims,  by  granting  that  there  were  extenuating  circumstances  in  the  case 
of  those  whom  God  had  afflicted  without  hope  of  mercy:  special  asylums, 
charities,  order  of  St.  Lazarus  (the  master  of  which  had  to  be  a  leper) :  "  Olim," 
Table,  see  "Lepros."  The  Bishops  were  obliged  to  support  the  lepers 
within  their  diocese:  "Cone.  d'Orl,"  549,  c.  21;  "Lyon,"  583,  etc.;  afterwards 
this  charge  falls  upon  the  parish,  or  upon  the  commune:  "Roisin,"  234,  247; 
"Lille,"  22,  Isambert,  V,  367. 

*  U.  Robert,  "Les  signes  d'infamie  au  moyen  &ge,"  1889. 

886 


Topic  2]  PERSONS   UNDER  A   DISABILITY  [§  587 

shake  a  clapper  or  rattle  in  order  to  give  notice  of  their  approach. 
In  certain  localities,  in  finding  cases  of  leprosy,^  they  celebrated 
over  those  who  were  affected  with  it  a  requiem  mass;  -  they 
were  dead  to  the  world.^  This  idea  of  civil  death  was  not  al- 
ways and  everywhere  applied  with  the  same  sev^erity.  In  the  old 
times  their  marriage  was  dissolved ;  ■*  but  the  Decretals  of  Gregory 
IV  broke  with  this  old  rule  and  considered  lepers  as  being  capable 
of  marrying.^  Their  dignities  and  their  possessions  ceased  to  be- 
long to  them.®  They  only  lived  upon  charities  and  became  in- 
capable of  acquiring  anything,  and,  consequently,  incapable  of 
inheriting  from  their  relatives.''  Ordinarily,  their  inheritance 
vested  for  the  benefit  of  their  heirs.  At  the  same  time,  a  few 
Customs  allowed  them  to  dispose  of  a  portion  of  their  possessions 
by  will.^  This  legislation  fell  into  disuse  towards  the  end  of  the 
fifteenth  century,  when  leprosy  became  rare. 

However,  the  evil  seems  to  have  persisted  in  certain  localities 
under  a  milder  form,  the  "leuce"  or  white  leprosy.^    Those  who 

1  The  ecclesiastical  judges  were  for  a  long  time  charged  with  deciding  as 
to  whether  a  case  were  one  of  leprosy  or  not:  "Reg.  de  I'off.  de  Cerisy,"  no. 
9,  25a,  etc.     CJ.  "Leviticus,"  loc.  cit. 

2  SjTiodic  Statutes  of  the  diocese  of  Troyes,  1430  (ceremonial):  the  priest 
celebrates  mass  which  is  attended  by  the  leper,  who  is  apart  from  the  other 
worshipers  and  has  his  face  covered  as  though  he  were  dead.  WTien  the 
service  is  over  the  priest  takes  earth  from  the  cemetery  in  a  spade  and  puts 
it  on  the  leper's  head,  saying:  "My  friend,  this  is  a  sign  that  thou  art  dead 
to  the  world."  He  then  leads  him  to  his  dwelling  at  the  head  of  a  procession 
and  at  the  threshold  says:  "Friend,  thou  knowest  and  it  is  true  that  the  head 
of  the  leper-house  of  Troyes  has  in  writing  denounced  thee  as  a  leper,  where- 
fore I  forbid  thee  to  violate  any  of  the  following  articles:  thou  shalt  not  enter 
any  house  excepting  thine  own  cottage,  nor  any  mill;  thou  shalt  not  look 
into  any  well  nor  fountain;  thou  shalt  eat  only  food  prepared  for  thyself; 
thou  shalt  not  drink  out  of  any  vessel  saving  tliine  own;  thou  shalt  have  thy 
well  before  thy  cottage;  thou  shalt  no  longer  take  part  in  any  trial  at  law; 
thou  shalt  no  more  enter  the  church  when  a  service  is  going  on;  when  thou 
speakest  with  any  one  go  the  side  away  from  the  wind;  wlien  asking  alms 
sound  thy  clapper;  thou  shalt  not  go  far  from  thy  cottage  without  having 
put  on  thy  covering;  thou  shalt  not  pass  over  any  plank  or  bridge  without 
having  put  on  thy  gloves;  thou  shalt  go  nowhere  from  whence  thou  canst 
not  return  to  sleep  in  thy  cottage  without  the  permission  of  thy  parish  priest 
or  of  Monscigneur  the  ecclesiastical  judge":  Rague.au,  see  "Service." 

3  "Roth.,"  176;  Capitulary  of  789,  36;  Italian  Statutes;  "Cout.  d'Aoste," 
6;  Giraud,  "Essai,"  II,  222  (Aries,  96),  251;  "Jostice,"  p.  196;  Beaumanoir, 
56;  "Hainaut,"  135;  "Summa  Norm.,"  25,  10;  "R.  h.  Dr.,"  1857,  559;  "F. 
de  Beam,"  .55;  "Cout.  d'Anjou,"  ed.  B.-B.,  "A,"  78;  "F,"  835. 

*  Capitulary  of  757,  19  (I,  39);  "Ass.  de  J6t.,"  "Livre  au  roi,"  42;  "F.  de 
Morlaas,"  357. 

»  Dig.  X,  4,  8;  Boutaric,  II,  8;  "Siete  Part.,"  IV,  2,  7,  17. 
«  "Auct.  vet.  de  benef.,"  I,  81   (loss  of  fiefs).     Contra:  "Livre  au  roi," 
42.  —  Osias,  king  of  Judea. 
7  "Summa  Norm.,"  25,  10. 

*  Beaumanoir,  56,  2. 

»  F.  Michel,  "Hist,  des  races  maudites,"  1834;   De  Rochas,  "  Les  pariaa 

887 


§  587]  STATUS    AND    CAPACITY    OF   PERSONS  [Chap.  VI 

were  affected  by  it,  and  those  who  were  suspected  of  being  lepers 
because  of  certain  equivocal  symptoms  or  because  they  w^ere  re- 
puted to  belong  to  the  families  of  lepers/  remained  until  the  end 
of  the  seventeenth  century  ^  under  disabilities  of  the  same  nature 
as  those  which  we  have  just  been  discussing,  which  were  traces  of 
the  former  condition  of  lepers.^  In  the  Pyrenees  they  were  desig- 
nated by  the  name  of  outcasts  ("cagots"),^  in  Brittany  under  that 
of  "cacoux"  or  "caqueux,"  words  which  seem  to  be  synonyms 
of  "  leper." 

de  France,"  1876;  Hovelacque  and  Vinson,  "Et.  de  linguist.,"  p.  210;  "Rev. 
des  Deux-Mondes,"  1878,  426;  Lagrhze,  "Navarre,"  I,  49;  Cadier,  see  "Gr. 
Encycl." 

1  They  were  supposed  to  have  physical  defects  (fetid  breath,  an  evil  odor, 
ears  without  lobes,  Httle  granules  on  their  tongues  similar  to  those  by  means 
of  which  leprous  pigs  are  distinguished,  the  "earn  milhargousa").  In  the 
seventeenth  century  it  became  established  that  these  presumptions  had  no 
foundation. 

2  Reforms:  Parliament  of  Rennes,  in  1681  (at  the  instigation  of  Hevin); 
Declaration  of  1683  (Beam).  In  Spanish  Navarre,  equality  proclaimed 
from  the  beginning  of  the  sixteenth  century;  however,  for  the  filling  of  cer- 
tain offices,  for  a  long  time  the  "Umpieza  de  sangre,"  that  is  proof  that  one 
was  neither  descended  from  a  Moor,  nor  from  a  Jew,  nor  from  an  outcast, 
nor  from  a  heretic,  was  required. 

3  Separate  dwelling  place,  obligation  to  wear  on  their  clothing  a  piece  of 
red  cloth  cut  into  the  shape  of  the  foot  of  a  goose  or  a  duck,  a  separate  place 
in  church  and  the  cemetery,  prohibition  of  entering  mills,  of  drinking  at  the 
fountains,  exclusion  from  public  office,  exemption  from  tallage;  they  can  only 
give  testimony  in  court  as  an  exception,  they  can  only  marry  among  them- 
selves, etc.:  "F.  de  B6arn,"  65. 

*  "Cagot,"  a  Bearnese  word,  of  unknown  origin;  the  old  explanation  of  it, 
"canis  Gotus,"  is  not  a  very  probable  one;  the  Breton  "cacodd,"  leprous, 
has  been  suggested,  but  Brittany  is  very  far  away  from  Beam.  Other  names: 
"gafet"  or  "gahet,"  from  "gaf,"  hook,  because  leprosy  makes  the  hands 
hooked;  "capot,"  from  the  cape  or  hood  which  they  wore;  "chrestias,"  the 
poor  of  Christ;  "ladre,"  see  ante.  In  the  "Siete  Partidas,"  the  "gafo"  is 
a  leper:  Lespy,  "Diet.  B^arn.,"  see  "Cagot." 


888 


Topic  3]  LEGAL  PERSONS  [§  588 


Topic  3.    Legal  Persons 

§  588.   Political  Bodies. 

§  589.   Corporations  (Bodies  and  Communities,  Persons  in  Mortmain). 

§  590.   Foundations,  "Piae  Causae." 

§  588.  Political  Bodies.  —  The  Roman  law,  to  which  our  legal 
system  ^  owes  the  idea  of  a  collective  being,-  looked  upon  towns, 
guilds  and  corporations  as  persons  ("personae  vice  funguntur").^ 
Like  natural  persons,  in  fact,  these  fictitious  persons  ^  had  pos- 

^  On  the  classification  of  legal  persons  see  Savigny,  §  86  (of  necessity 
and  of  their  own  free  will).  Analogies  in  the  "Apparatus"  (on  the  Decretals) 
of  Innocent  IV:  Ruffini,  op.  cit.  —  Division  into  Corporations  and  Founda- 
tions: Avril,  "These,"  p.  10.  —  The  Civilians  contrast  partnerships  (either 
commercial  or  civil)  formed  with  the  sole  object  of  gain,  with  associations  which 
are  not  exclusively  engaged  in  the  acquiring  of  wealth  for  their  members.  — 
The  authors  who  write  on  Public  Law  distinguish  public  persons,  such  as  the 
State,  the  Communes  and  public  estabhshments  (or  services  detached  from 
the  State  to  carry  on  an  existence  of  their  own,  for  example  the  Institute  of 
France,  the  Universities,  the  Faculties,  etc.),  from  private  persons  (chari- 
table and  scientific  societies,  reUgious  assemblages,  professional  syndicates; 
cf.  Cezar-Bru,  1891,  and  all  estabhshments  of  public  usefulness  in  general). 
This  distinction  was  unknown  to  the  Old  Regime  under  wliich  bodies  and 
communities  form  an  assemblage  of  persons  which  are  at  the  same  time 
public  and  private,  all  subject  to  the  same  system;  it  was  also  unknown  to 
the  Revolution,  which  made  public  establishments,  that  is  to  say  special 
administrations,  of  those  which  it  left  in  existence;  it  is  only  in  the  nine- 
teenth century  that  estabhshments  of  public  utility  make  their  reappearance, 
by  becoming  detached  from  the  administration  and  by  acquiring  a  certain 
autonomy  which  makes  them  similar  to  the  bodies  and  communities  of  former 
times. 

2  Girard,  "Man.  de  Dr.  Rom.,"  3d.  ed.,  p.  232;  Vaulhier,  p.  8;  Gierke, 
op.  cit.,  Ill,  246  (Innocent  IV);  354  (Bartolus). 

^  "Sodahtates,"  "corpora,"  "collegia"  (for  example,  colleges  of  priests, 
funeral  guilds):  Dig.,  50,  16,  16;  46,  22;  3,  4,  1.  The  personality  of  the 
oldest  ones  seems  to  be  accounted  for  by  their  family  character  (rather  than 
by  the  personality  of  the  god  with  whom  they  were  connected  and  who  was 
regarded  as  the  owner  of  their  possessions).  Under  the  Republic  and  under 
the  Empire,  authorization  from  the  State  became  indispensable  for  the  forma- 
tion of  these  associations,  no  doubt  because  they  were  degenerating  into 
political  clubs.  In  fact  there  were  no  doubt  always  some  of  them  that  were 
merely  tolerated:  Epinay,  "These,"  p.  35.  —  Partnerships  ("socidtds")  dif- 
fered from  associations:  1st.  By  reason  of  their  object  being  gain,  whereas  the 
object  of  a.ssociations  was  a  disinterested  one.  2d.  Because  of  their  limited 
duration  ("  mortc  socii  solvitur  societas  ") .  3(1.  Because  of  their  lack  of  civil  per- 
sonality (c/.,  however,  early  "consortium").  4th.  Because  the  authorization  of 
the  State  was  lacking  in  their  case.  At  the  same  time  there  was  a  class  of  part- 
nerships whic;h,  as  an  exception,  were  given  a  personality;  perhaps  with  the 
object  of  being  better  able  to  render  the  public  service  with  which  they  were 
charged,  these  were  partnerships  of  toll  collectors  who  farmed  the  collection 
of  the  revenues  of  the  State,  and  who  made  tenders  for  the  public  works: 
Girard,  p.  532;  Kniep,  "Soc.  pubhc,"  1896. 

*  The  likening  of  them  to  persons  only  takes  place  "mutatis  mutandis." 

889 


§  588]  STATUS   AND   CAPACITY   OF   PERSONS  [Chap.  VI 

sessions  and  rights,  which  they  enforced  through  the  intervention 
of  representatives  (because  they  could  not  act  themselves).  The 
personality  of  the  State  seems  to  be  beyond  any  doubt,  although 
its  political  role  tends  to  make  one  forget  its  private  role.  From 
a  very  early  time  it  is  seen  to  have  possessions  and  rights  of 
action,  and  its  magistrates  act  in  its  name  (for  example,  the 
acquiring  of  inheritances).^  Around  the  State,  towns  and  guilds 
are  organized  in  corresponding  groups. 

The  formation  of  the  Christian  Church  had  the  result  of  es- 
tablishing alongside  of  the  political  system  of  the  State  and  its 
dependencies  a  corresponding  religious  system  composed  of  the 
Church  and  its  establishments.  Detached  from  the  State,  owing 
to  its  origin,  the  Christian  religion  achieved  personality  for  its 
communities,  its  dioceses,  its  monasteries,  its  charitable  institu- 
tions, and  its  pious  works.  It  gave  corporate  development  a 
strong  impulse  and  succeeded,  at  least  in  its  own  sphere,  in  mak- 
ing a  principle  of  liberty  prevail  which  had  been  unknown  until 
that  time.  Its  legal  persons  were  modeled  after  the  Roman  type. 
Its  symmetry  would  have  been  complete  if  the  universal  Church 
had  been  from  the  legal  point  of  view  what  it  was  from  the 
religious  point  of  view,  a  single  body.^  A  tendency  in  this 
direction  has  not  been  lacking;  we  have  seen  ["Public  Law"]  in 
what  way  and  up  to  what  point  it  has  been  realized.  But  for  a 
long  time  the  only  thing  that  had  to  be  considered  with  relation 
to  the  Church  was  the  diocese;^  each  diocese  —  that  is  to  say, 
each  church  —  had  its  own  inheritance;^  this  belongs  neither  to 
the  priests  individually  nor  to  the  bishop  who  is  their  head;  ^  it 
belongs  to  a  legal  being,  that  is  the  Church,  and  it  is  devoted  to 
objects  of  a  higher  nature,  in  view  of  which  the  Church  has  been 
established;  it  is  the  fortune  of  the  poor,  the  endowment  of  the 
clergy  and  of  religion.    This  conception  was  transmitted  to  the 

Thus  collective  beings  do  not  marry,  and  have  no  family  rights;  but  they 
do  have  an  inheritance. 

1  Vauthier,  54;  Pernice,  "Labeo,"  I,  263;  Stobbe,  I,  382;  Saleilles,  "N.  R.  H.," 
1888,  497  (the  public  domain  at  Rome). 

2  At  least  in  Private  Law.  As  to  Public  Ecclesiastical  Law  c/.  Paul, 
I,  "Cor.,"  xii,  12.     The  Church  is  the  spiritual  body  of  Christ. 

3  Imhart  la  Tour,  "Par.  rurales,"  1900;  Ruffini,  "Rapresent.  giurid.  d. 
parrochie,"  1896. 

*  Loening,  "D.  Kirchenr.,"  I,  221;  Gierke,  II,  903;  Bondroit,  "De  capac. 
possid.  Ecclesige,"  1900;  Hiibler,  "Der  Eigenthiimer  des  Kirchenguts,"  1868. 

^  Cf.  episcopal  and  vicarial  revenue.  The  corporation  sole  of  the  English 
law:  an  ecclesiastical  office  personified  distinct  from  the  incumbent:  Black- 
stone,  I,  10.  The  king  and  the  crown  constitute  a  lay  corporation  sole:  Pol- 
lock and  Maitland,  op.  cit. 

890 


Topic  3]  LEGAL   PERSONS  [§  588 

Middle  Ages  and  never  ceased  to  be  true  in  theory ;  but,  as  a  mat- 
ter of  fact,  it  was  often  departed  from.  Thus  the  system  of  bene- 
fices made  it  necessary  to  consider  the  possessions  of  the  Church 
as  belonging  to  a  certain  extent  to  the  clergy  and  the  monks. 
Their  rights  only  being  for  life,  the  canonists  none  the  less 
upheld  the  old  doctrine  which  defined  the  possessions  of  the 
Church  and  at  the  same  time  took  into  account  their  origin  and 
their  destination,  "  the  vows  of  the  faithful,  the  price  of  sins,  and 
the  inheritance  of  the  poor."  A  matter  which  was  more  serious 
was  that  the  civil  authority  was  often  substituted  for  the  clergy 
in  the  management  of  its  possessions;  without  going  back  to  feudal 
times,  to  avowries,  or  to  feudal  tithes,  in  the  monarchic  period 
their  works  of  charity  were  seen  to  pass  more  and  more  into  the 
secular  power;  and  it  was  the  same  with  respect  to  the  external 
assets  of  religion  (manufactures).^  In  suppressing  the  clergy 
as  a  body,  in  transforming  the  possessions  of  the  Church  into 
national  possessions,^  in  taking  upon  itself  the  support  of  the 
clergy  and  the  expenses  of  the  worship,  the  Revolution  did  nothing 
which  was  not  logically  in  accord  with  the  public  law  of  the  Old 
Regime.  It  acted  especially  from  force  of  necessity,  so  as  to  cover 
the  deficit  and  avoid  the  bankruptcy  into  which  the  State  was 
being  driven.  But  other  considerations  were  mingled  with  these 
reasons  of  a  financial  nature,  —  a  consciousness  of  the  evil  which 
existed  in  keeping  outside  of  commerce,  and  so  having  them  pro- 
duce nothing,  the  considerable  amount  of  possessions  which  were 

^  The  ecclesiastical  establishments  of  the  Old  Regime  which  were  done 
away  with  by  the  Revolution  made  their  reappearance  after  the  Concordat 
and  the  Organic  Articles:  manufactures,  episcopal,  vicarial,  capitulary  and 
seminary  revenues:  Hennequin,  "Essai  hist.  s.  les  fabriques"  (''Journ.  des 
Cons,  de  Fabr.,"  1834,  I,  8);  Ladrat,  "R.  gen.  d'adm.,"  Sept.,  1890. 

2  As  to  the  secularization  of  ecclesiastical  possessions  see  Sagnac,  "Lcgisl. 
civ.  dc  la  Revol.,"  p.  155.  —  Gerin,  "Rech.  hist.  s.  L'Ass.  du  clerge  de  1682," 
1869,  p.  87,  cites  a  formal  address  by  Pussort  before  the  assembly  of  the 
clergy  in  1690:  "in  a  case  of  pressing  necessity  the  king  is  the  owner  of  the 
property  of  all  his  subjects  and  especialbj  of  the  property  of  the  ecclesiastics." 
Le  Vayer,  "Autor.  legit,  des  rois,"  p.  323;  Et.  Mignot,  "Dr.  de  I'Etat  sur  les 
biens  possedes  par  le  clerge,"  1755  (Cerfvol);  "Dr.  du  souverain  sur  les  biens- 
fonds  du  clerge  et  des  moincs,"  1770.  Cf.  Chntnjnon,  "Cahiers  de  1789" 
("Revolution  Frangaise,"  June  14,  1894);  "Rev.  des  Deux-Mondes,"  1886, 
850  (P.  Leroy-Beaidieu);  Bourgain,  "Biens  eccl^s.  av.  la  Rev.,"  1891;  Burec, 
"Propr.  de  I'Eglise,"  1898;  Le  Carpentier,  "R.  hist.,"  1901,  71;  Leouzon- 
Leduc,  "Journ.  des  Econom.,"  August,  1881.  —  Ficker,  "Eigenth.  d.  Reichs 
an  Kirchengut"  ("Akad.  Wien,"  72,  77);  "Dig.  Ital.,"  see  "Asse  ecoles."; 
Furgeot,  "R.  Q.  hist.,"  XXIX,  428  (under  Charles  IX);  Marion,  "Machault 
d'Arnouville,"  1891.  —  Cf.  secularization  which  took  place  after  th(>  Ref- 
ormation, for  example  Stonff,  "Le  pouvoir  tcmporol  et  le  regime  municijial 
dans  I'eveche  de  Bale,"  I,  235;  F.  Dubois,  "De  recup.  Terr,  sanct.,"  16,  30; 
25,  42,  etc. 

891 


§  588]  STATUS   AND   CAPACITY   OF   PERSONS  [Chap.  VI 

in  mortmain;  the  fear  of  seeing  the  Church  profit  by  its  position 
of  a  very  great  landed  proprietor  in  order  to  dominate  the  State; 
and,  finally,  the  thought  that  religion  entered  into  the  great  public 
offices,  and  that  its  administration  ought  to  be  connected  with 
that  of  the  State. ^ 

Roman  tradition  with  respect  to  civil  personality  thus  persisted 
in  the  religious  system  of  the  Old  Regime;  it  was  maintained  with 
more  difficulty  in  the  parallel  political  system.  The  State  had  its 
incarnation  originally  in  the  person  of  the  king,  which  meant  that 
it  was  not  necessary  to  investigate  whether  it  constituted  a  legal 
person  or  not.  The  possessions  and  the  rights  of  the  State  were 
looked  upon  as  the  personal  attribute  of  the  king  during  the  Frank- 
ish  period  as  well  as  during  the  feudal  period.  But  the  monarchic 
law  did  a  great  deal  towards  making  a  distinction  between  the 
person  of  the  king  and  that  of  the  State;  thus  it  is  that  the  do- 
main of  the  crown  had  a  tendency  to  become  separated  from  the 
private  and  personal  domain  of  the  sovereign.  Thus  did  it  pave  the 
way  for  the  Revolution,  for  which  it  was  reserved  to  strip  public 
functions  of  all  their  inheritable  qualities.^ 

As  far  as  cities  and  communities  of  inhabitants  ^  were  concerned, 
their  civil  personality  was  not  always  so  readily  to  be  distinguished 
as  one  might  suppose.^    While  contrasting  the  community  with  its 

1  The  modern  tendencies  towards  the  separation  of  the  Church  and  the 
State  were  not  set  forth  until  the  law  of  the  3d  Vent.,  year  III,  which  pro- 
claimed the  freedom  of  worship ;  it  was  by  virtue  of  this  Law  that  the  Catholic 
form  of  worship  made  its  reappearance;  it  was  officially  restored  under  the 
Consulate,  but  without  becoming  a  State  religion.  From  that  time  on,  our 
law  distinguishes  between  forms  of  worship  not  recognized  by  the  State  (which 
are  subject  to  the  general  laws  affecting  associations,  meetings,  etc.)  and  forms 
of  worship  which  are  recognized  by  the  State:  Catholicism  (Concordat  of  the 
26th  Mess.,  year  IX,  and  "Articles  organiques"  of  the  8th  Germ.,  year  X,  a 
unilateral  act  on  the  part  of  France  which  the  Church  submits  to  rather  than 
accepts,  Hebrard,  "Art.  organ.,"  1870),  Lutheranism  and  Calvinism  (re- 
organized under  the  authority  of  these  same  Articles),  the  Israelitish  worship 
(Decree  of  May  30,  1806;  of  March  17,  1808):  Gazier,  "Et.  s.  I'hist, 
relig.  de  la  RevoL,"  1887;  Aulard,  "Le  culte  de  la  Raison,"  1892.  —  As  to 
the  Concordat,  besides  the  speech  of  Portalis,  cf.  Boulay  de  la  Merthe,  "Doc. 
8.  la  negoc.  du  Concordat,"  1891 ;  Seche,  "Orig.  du  Cone,"  1894;  Card.  Mathieu, 
"Le  Concordat,"  1903. 

2  Tacitus,  "Germ.,"  10,  12.  Germany:  in  the  thirteenth  century,  the 
"Hausgut"  is  contrasted  with  the  "Reichsgut":  Heusler,  §  63;  Stobbe,  I, 
382,  392  (in  1125,  the  property  of  proscribed  persons  is  rather  "regiminia 
dicioni  quam  regis  proprietati");  Gierke,  II,  527;  III,  62,  117;  Vauthier, 
304;  Pollock  and  Mailland,  I,  495,  509;  Viollet,  "Inst.,"  II,  250;  Monteil, 
"Doman.  publique,"  "These,"  1902.  —  Chopjyin,  "Dom.,"  I,  6;  Domat, 
"Loix  civ.,"  1,  prel.,  3,  1;  Loyseau,  "Seigneuries,"  I,  23;  II  et  seq.  —  On 
the  Law  of  Nov.  22-Dec.  1,  1790,  cf.  Monteil,  p.  159. 

3  Beaumanoir,  4,  32;  43,  42;  "Gr.  Cout.,"  p.  389. 
<  Gierke,  III,  730;  PertUe,  III,  268. 

892 


Topic  3]  LEGAL  PERSONS  [§  589 

members,  it  was  asked  if  each  one  of  the  latter  did  not  have  an  in- 
dividual right  to  reparation  for  damage  caused  to  the  community, 
and  if  obligations  which  were  incumbent  upon  the  community 
could  not  be  enforced  against  the  possessions  of  each  one  of  its 
members;  ^  there  was  some  doubt  as  to  who  represented  the  com- 
munity at  law,  and  as  to  who  could  take  an  oath  for  it.  The 
Revolution  by  forbidding  the  partition  of  community  possessions 
among  the  inhabitants  ^  seemed  to  see  in  this  a  mere  case  of 
joint  possession.^  In  this  way  it  gave  evidence  of  its  repugnance 
to  corporate  ownership.  The  possessions  of  the  State  and  the 
possessions  of  the  clergy  were  sold  as  national  possessions;  com- 
munity possessions  should  also  have  disappeared  by  partition. 

§  589.  Corporations  ^  (Bodies  and  Communities,  Persons  in 
Mortmain).  —  Family  communities,^  which  were  the  primitive 

'  C/.  Law  of  the  10th  Vend^m.,  year  IV  (responsibility  of  communes  for 
crimes  committed  on  their  territory). 

2  Bertrand,  "Dr.  d'affouage,"  "These,"  1900;  Stobbe,  1,  446. 

^  The  wealthy  bought  for  a  very  low  price  the  share  of  the  poor:  Taine, 
"Revolution,"  III,  476;  Sagnac,  p.  151,  177  (analysis  of  the  revolutionary 
law);  "Code  civ.  interm.,"  Table,  see  "Communaux."  As  to  the  possessions 
of  parishes  and  of  communities,  cf.  Merlet,  "Ass.  de  commun.  d'habitants 
dans  le  comt6  de  Dunois,"  1880. 

*  Du  Cange,  see  "  Corporatio " :  a  term  employed  by  the  English  jurists, 
cf.  Rastall.  The  old  French  authors  say  "corps  et  communaute,"  "gens  de 
mainmorte."  According  to  a  terminology  which  to-day  is  very  widespread, 
they  are  called  "  universitates  personarum"  as  contrasted  with  "univer- 
sitates  rerum"  or  foundations,  from  which  it  is  not  always  easy  to  distinguish 
them:  Stobbe,  I,  384. 

*  As  to  the  origin  and  the  various  kinds  of  legal  persons  according  to 
the  German  authors,  cf.  Stobbe,  I,  404  (bibl.),  443;  Sohm,  "Deutsche  Ge- 
nossenschaft,"  1889;  Heusler,  §  50  et  seq.;  Gierke,  "D.  Privatr.,"  §  58  et  seq. 
According  to  the  latter,  there  must  have  been  known  in  the  old  Germanic 
law  free  associations  ("Sippe,"  "Gaugenossenschaft,"  "Gemeinde,"  etc.), 
and  groups  composed  of  the  lords  (following,  vassalage,  etc.).  But  under 
the  influence  of  the  Roman  law  absolutism  came  to  be  introduced  into  public 
law  and  individualism  into  private  law;  there  was  a  tendency  to  restrict  the 
number  of  legal  persons,  to  connect  some  of  them  with  the  State,  and  to  do 
away  with  the  others;  the  theory  of  "fictitious  personality"  must  have  arisen 
as  a  consequence  of  these  tendencies.  According  to  Gierke,  who  maintains 
that  he  relies  on  the  old  Germanic  conception,  the  collective  person, 
"Verbandspcrson,"  is  just  as  much  a  reality  as  the  physical  person,  as  the 
individual.  He  contrasts,  in  approximately  these  terms,  the  German  "Genos- 
Benschaft"  with  the  Roman  " Universitas."  In  the  latter,  the  individual 
disappears,  being  absorbed  in  the  whole;  the  community  is  sacrificed  to  the 
unity;  this  absorption  docs  net  take  place  in  the  case  of  the  Germanic  cor- 
poration; it  may  be  shown  in  the  collective  rights  of  its  members;  this  plurality 
of  rights  which  is  developed  at  the  expense  of  the  rights  of  the  individual 
makes  the  German  corporation  resemble  a  case  of  joint  ownership  ("com- 
munio").  But  the  German  joint  ownership,  the  "Gemeinschaft,"  owing 
to  the  principle  of  the  "gesammte  Hand,"  which  establishes  therein  a  certain 
amount  of  unity,  is  similar  to  the  "K(Jrpcrschaft,"  so  that  the  abyss  which 
in  the  Roman  law  lies  between  the  "communio"  and  the  "universitas"  is 
found  to  be  filled  up,  in  the  Germanic  law,  with  intermediate  types.  Without 
wishing  to  express  an  opinion  as  to  the  validity  of  this  theory,  and  whether 

893 


§  589]  STATUS   AND   CAPACITY   OF   PERSONS  [Chap.  VI 

type  of  civil  persons,  were  formed  spontaneously  and  to  some  ex- 
tent organically,  even  under  the  system  of  the  State;  there  was  no 
question  of  the  authorization  or  control  of  the  latter.  But  the  pub- 
lic authorities  did  not  so  readily  leave  untouched  the  formation  of 
associations  which  were  not  of  this  character.  They  suppressed 
those  which  seemed  to  them  suspicious;  thus  the  Carolingians 
prohibited  guilds.  In  this  sense  it  is  correct  to  say  that  no  asso- 
tion  could  be  formed  without  the  consent  —  at  least  the  implied 
consent  —  of  the  State.  But  this  formula  is  not  absolutely  cor- 
rect excepting  in  the  new  law;  in  the  old  times  the  greatest  lati- 
tude was  allowed,  especially  to  religious  communities;  ^  they  were 
scarcely  liable  to  find  any  obstacle  excepting  on  behalf  of  the 
Church.  Rural  communities  were  also  very  easily  established, 
some  existing  perhaps  from  time  immemorial,  others  more  mod- 
ern, having  obtained  the  implied  consent  of  the  lord.  No  doubt 
this  same  latitude  was  allowed  from  the  early  part  of  the  Middle 
Ages  to  associations  for  trade.^    At  that  period  these  ecclesiastical 

we  should  look  upon  it  as  the  result  of  an  incomplete  analysis  or  a  gen- 
eral summing  up,  we  may  say  that  it  seems  to  be  in  accord  with  the  current 
conceptions  of  the  Middle  Ages;  tlie  corporation  is  at  one  and  the  same  time 
joint  ownership  and  a  legal  person;  those  who  are  members  enjoy  for  that 
reason  personal  advantages,  for  example  by  participating  in  the  enjoyment 
of  the  common  inheritance.  In  modern  law  Gierke  distinguishes  between 
three  sorts  of  "  Verbandspersonen "  (legal  persons),  without  counting  the 
State  ("fiscus"):  (A)  Corporations  ("Korperschaften");  1st.  Communes: 
"Markgemeinde,"  "Gemeinde"  at  the  present  time  ("allmends"),  agricul- 
tural associations.  2d.  Public  "  Genossenschaf ten, "  such  as  religious  groups, 
trade  bodies,  etc.,  and  private,  such  as  the  families  of  the  higher  nobility, 
associations  of  an  economic  nature,  etc.  (B)  Establishments  or  foundations: 
1st.  "Anstalten"  (public  establishments).  2d.  "Stiftungen"  (private  foun- 
dations). With  the  "Verbandsperson"  he  contrasts  the  "personenrecht- 
lichte  Gemeinschaft,"  sometimes  "zu  gesammten  Hand"  (with  united  hands), 
for  example,  communities  between  brothers  after  the  death  of  their  father, 
"Ganerbschaften,"  and  sometimes  established  by  public  authority. 

1  In  the  Middle  Ages  the  word  "  Universitas "  means  a  group,  a  collectiv- 
ity of  some  kind,  a  commune,  an  association,  a  university.  The  Glossators 
do  not  seem  to  have  a  very  concise  idea  of  the  legal  personality,  as  their 
definition  of  the  "Universitas"  shows:  "nihil  aliud  est  nisi  singuli  homines 
qui  ibi  sunt,"  which  was  a  hard  thing  to  reconcile  with  the  maxim:  "quod 
universitatis  est  non  est  singulorum,"  or  with  that  other  one,  " universi  con- 
sentire  non  possunt."  Cf.  Mestre,  p.  46  et  seq.  The  Canonists  were  the 
first  to  give  a  current  application  of  the  term  "persons"  to  collective  groups: 
Innocent  IV,  in  his  "Apparatus"  on  the  Decretals,  5,  52,  1,  and  2,  14,  2. 
After  them  the  Post-Glossators,  and  especially  Bartolus,  developed  the  theory 
of  the  legal  personaUty. 

2  As  to  commercial  partnerships,  cf.  Saleilles,  "Hist,  des  soci^t^s  en  com- 
mandite," in  the  "Ann.  de  Dr.  comm.,"  1895.  The  Italians,  Straccha, 
Scaccia,  etc.,  recognized  commercial  partnerships  as  having  a  fictitious  per- 
sonality. Cf.  on  this  point,  discussions,  Lyons  and  Caen,  "Acad.  sc.  mor.," 
1900,  471;  Nigulesco,  "Th^se,"  1900;  Avnl,  p.  12;  Meynial,  "Sir.,"  1892, 
I,  497;  Stobbe,  I,  389.  The  great  commercial  companies  constituted  true 
public  establisnments:  see  "Encycl." 

894 


Topic  3]  LEGAL  PERSONS  [§  5S9 

or  secular  groups  of  people  filled  the  part  which  has  to-day  de- 
volved upon  the  State;  ^  it  is  not  surprising  that  the  State  in  the 
course  of  developing  the  extent  of  its  prerogatives  should  have  in- 
cluded within  them  the  sphere  occupied  by  this  group.  Previous 
authorization,  an  administrative  guardianship,  under  the  mon- 
archy, paved  the  way  for  the  absorption  of  these  bodies  by  the 
State  and  their  conversion  into  the  form  of  administrative  organs.^ 
The  system  of  freedom,  under  which  people  in  mortmain  be- 
came very  numerous  during  the  barbarian  and  feudal  times,  gave 
way  in  the  monarchic  period  to  a  system  which  was  very  restric- 
tive. Loysel,  400,  sums  it  up  in  this  rule :  "  One  cannot  assemble 
in  order  to  create  a  body  and  a  community  without  permission 
and  letters  of  the  king."  ^  The  previous  and  express  authorization 
of  the  State  is  the  first  requisite  for  the  existence  of  legal  per- 

1  This  characteristic  is  shown  us  by  Bodin,  III,  7:  "All  bodies  and  guilds 
are  instituted  for  religious  purposes  or  for  purposes  of  police"  (and  we  know 
that  "police,"  in  a  broad  sense,  is  the  same  thing  as  administration).  They 
are  associations  founded  by  individuals  in  view  of  the  public  interests; 
Lavie,  "Des  corps  politiques,"  1766,  II,  p.  12.  According  to  Domat,  "Dr. 
public,"  I,  15,  1,  the  body  is  established  for  a  common  benefit  for  those  who 
are  members,  but  also  one  which  is  connected  with  the  public  welfare.  It  is 
stated  that  these  bodies  render  services  to  the  State;  this  is  so,  for  example 
with  regard  to  the  institutions  of  teaching,  as  the  Universities,  or  of  charity, 
as  the  alms-houses  or  "Maisons-Dieu,"  which  at  first  were  reUgious  estab- 
lishments and  which  had  not  yet  entirely  lost  their  ecclesiastical  character 
in  the  eighteenth  century  (rights  of  the  Bishops  over  the  Universities,  they 
are  members  by  birth  of  the  boards  of  the  alms-houses,  etc.).  At  the  close 
of  the  Old  Regime  they  are  called  public  establishments.  As  to  the  king's 
rights  with  regard  to  the  ecclesiastical  institutions  see,  Le  Vayer,  "Autorit4 
legit,  des  rois,"  p.  319  et  seq.  (poUtical  sovereign,  protector,  founder). 

2  Being  given  this  characteristic,  it  is  quite  natural  that  there  should 
have  been,  especially  at  the  close  of  the  Old  Rdgime,  estabUshments  of  the 
same  nature  created  by  the  king,  royal  foundations  (for  example,  the  College 
of  France,  the  Hospice  of  the  Invalides,  the  Academies,  etc.).  On  the  trade 
bodies,  cf.  Monin,  "R^vol.  Fr.,"  1894,  327.  On  the  order  of  barristers,  c/. 
Vasseur,  "Thfese,"  1900. 

*  This  was  the  Roman  rule:  Gains,  Dig.,  3,  5,  1;  Girard,  p.  234;  Edict  of 
Nov.,  1629;  Declaration  of  June  7,  1659;  Edijct  of  Dec,  1666  (Le  Vayer, 
"Autor.  legit,  des  rois,"  1682,  p.  279:  no  community  can  be  established  or 
build  monasteries  without  the  express  permission  of  the  king,  for  no  bodies, 
communities  or  guilds  may  be  formed  without  the  consent  of  the  political 
magistrate;  every  new  establishment  of  monks  is  a  novelty,  according  to  the 
discipline  of  the  Church,  and  it  is  one  of  the  duties  of  its  supporters  to  prevent 
innovations  within  the  Church);  and  especially  the  Edict  of  Aug.,  1749, 
Art.  1;  Avril,  p.  60  (citations),  72;  Blackstone,  I,  10.  Associations  which  had 
not  been  authorized  could  be  dissolved,  that  is  to  say  their  members  could 
be  compelled  to  separate;  but  they  were  tolerated  if  they  appeared  to  be 
inoffensive:  Viollet,  p.  647.  The  members  of  these  irregular  communities 
were  not  looked  upon  any  differently  from  ordinary  individuals,  they  were 
not  allowed  to  act  in  a  collective  name.  —  Furthermore,  when  the  group 
had  been  in  existence  for  a  very  long  time,  until  the  year  1749  the  State  did 
not  require  them  to  produce  their  title.  It  is  thus  perhaps  that  the  toleration 
shown  fraternities  and  freemasonry  is  to  be  accounted  for:  Guyot,see  "Com6- 
dien";  Decree  of  June  14-17,  1791,  Aug.  18,  1792. 

895 


§  589]  STATUS   AND   CAPACITY   OF   PERSONS  [Cuap.  VI 

sons.^  Every  association  which  had  this  authority  "ipso  facto" 
had  a  civil  personaUty,^  without  a  special  grant  being  necessary; 
this  personality  was  not  a  gift  from  the  State,  but  a  natural  con- 
sequence of  the  existence  of  the  association,  and,  if  one  may 
say  so,  its  way  of  being  and  of  living.^    The  State  could  have 

^  As  to  this  system  of  freedom,  which  dates  from  the  time  of  the  Lower 
Empire,  cf.  theses:  Plocque,  1887;  Buretel  de  Chassey,  1893,  etc.;  Vauthier,  op. 
cit.  —  Power  of  receiving:  Gierke,  II,  903. 

2  The  personality  of  bodies  and  communities  has  been  accounted  for  by 
means  of  a  fiction.  This,  in  our  opinion,  is  the  Roman  theory;  it  is  to  be 
found  again  in  the  writings  of  the  Canonists,  the  BartoUsts,  the  Civihans,  the 
commercialists  and  of  the  School  of  Natural  Law;  it  played  an  important 
part  in  the  discussion  on  the  secularizing  of  the  possessions  of  the  clergy 
in  the  Constituent  Assembly.  —  The  Germanists,  Beseler  and  Gierke,  have 
risen  up  in  opposition  to  this  traditional  opinion;  for  them  legal  persons 
are  not  fictitious  beings,  but  actual  beings;  in  every  association  there  exists 
a  collective  will,  which  is  quite  distinct  from  the  individual  wills  and  which 
is  just  as  much  a  reality  as  that  of  an  individual.  Let  us  mention  among 
other  deductions  which  are  drawn  from  these  ideas,  the  following:  (1)  The  law 
does  not  create  legal  persons,  but  merely  recognizes  them;  the  government 
cannot  dissolve  them  by  means  of  a  mere  provision  of  policy.  (2)  Once  having 
been  recognized  in  the  country  where  they  originated  they  can  operate  abroad. 
(3).  When  their  dissolution  takes  place  their  possessions  do  not  belong  to  the 
State  as  being  goods  without  an  owner,  but  form  the  object  of  a  special  suc- 
cession wliich  is  related  to  the  object  for  which  they  were  destined  (they  can 
therefore  once  more  be  divided  up  among  the  members).  These  conclu- 
sions would  not  have  been  denied  by  the  majority  of  our  old  authors,  for  they 
did  not  pretend  that  the  law  created  legal  persons  "ex  nihilo,"  but  merely 
that  they  had  to  have  the  authorization  of  the  law  in  order  to  operate,  which 
amounts  to  the  same  thing  as  saying  the  State  has  a  right  to  forbid  them; 
now  nobody  denies  that  the  State  has  this  right.  It  is  quite  certain  that  the 
fie t' on  of  the  personality  does  not  account  for  everything;  but  fictions  are 
not  created  with  the  object  of  accounting  for  things;  they  are  formulae  devised 
by  the  jurists,  and  as  it  were  a  sort  of  convenient  coinage  which  is  in  circu- 
lation in  the  law.  A  thing  which  proves  in  favor  of  this  fiction  is  the  fact  that 
no  one  has  succeeded  in  replacing  it  with  anything  else.  If  we  should  be  asked, 
why  treat  an  association  or  an  establishment  in  the  same  way  as  a  man,  we 
would  reply  that  this  question  comes  rather  within  the  sphere  of  politics  or 
of  political  economy  than  within  that  of  jurisprudence;  the  personification 
was  at  a  certain  period  the  best  way  in  which  certain  physical  needs  could 
be  satisfied.  We  therefore  do  not  go  so  far  as  the  Germanist  system;  but 
we  recognize  the  new  school  as  in  two  ways  deserving  of  merit;  in  the  first 
place,  its  liberal  tendencies,  and  then  also  the  bringing  into  prominence  of 
an  important  fact,  the  free  and  spontaneous  formation  of  legal  persons 
in  the  Middle  Ages.  —  According  to  others,  for  example,  Planiol,  "Dr.  civil," 
I,  262,  the  personality  (whether  fictitious  or  real)  is  a  myth;  under  the  name 
of  civil  persons  one  should  include  masses  of  possessions,  without  any  indi- 
vidual owner,  devoted  to  some  collective  use;  cf.  Brim,  "Pand.,"  and  his 
theory  of  the  "Zweckvermogen."  These  ideas  are  foreign  to  the  old  law. 
One  can  say  the  same  thing  with  regard  to  other  theories,  a  very  concise  out- 
line of  which  will  be  found  in  Mestre,  op.  cit.  As  to  associations  without  any 
civil  personality,  cf.  Stobbe  §  61.  [See  now  the  elaborate  and  masterly 
critique  of  the  history  and  theory  in  Saleilles'  "  La  Personality  Juridique,  " 
1909.  —  Transl.] 

'  The  idea  of  distinguishing  the  grant  from  the  civil  personality  and  the 
authorization  to  associate  is  a  modern  one.  Muhlenbruch  (on  the  occasion 
of  the  Stadel  trial)  and  Savigny  (who  incorrectly  translates  "corpus"  as  civil 
person,  Dig.,  3,  4,  1),  have  caused  this  idea  to  prevail  in  Germany;  following 

896 


Topic  3]  LEGAL  PERSONS  [§  589 

taken  away  the  legal  personality  of  an  association,  or,  without 
going  so  far  as  this,  could  have  restricted  its  capacity;  but  it  was 
not  customary  to  proceed  in  this  way.  The  association  was  purely 
and  simply  suppressed.^  It  is  thus  that  legal  persons  ordinarily 
die,  by  means  of  a  withdrawal  of  authority;  they  can  also  disap- 
pear for  lack  of  an  object  ^  when  the  end  for  which  they  have  been 
established  has  ceased  to  exist,^  or  when  all  the  members  of  the 
partnership  have  died.^  But  these  hypotheses  are  obviously  of 
an  exceptional  character;  it  is  in  the  very  nature  of  bodies  and 
communities  to  last  forever,  and  one  of  the  greatest  advantages 
which  they  offer  is  the  very  fact  that  they  last  far  beyond  the 
limits  of  human  life,  for  their  existence  is  independent  of  that 
of  their  actual  members. 

The  constitution  of  the  community  is  the  result  of  custom  or  is 
contained  in  written  regulations.  During  the  monarchic  period 
these  regulations  had  to  be  presented  to  the  Parliaments  or  to  the 
other  royal  departments,  with  the  object  of  obtaining  their  ap- 
proval. It  was  for  the  magistrates  to  see  that  nothing  had  been 
slipped  in  which  was  contrary  to  "the  laws,  to  public  liberty  and 
the  interests  of  other  people."  ^    The  community  acted  through 

them  Zacharie  introduced  it  into  France.  —  One  is  justified  in  saying  that 
this  distinction  was  as  it  were  prepared  for  by  the  provisions  of  the  Edict  of 
1749,  by  virtue  of  which  a  community  which  was  already  in  existence  and 
which  had  been  authorized  needed  a  further  authorization  in  order  to  acquire 
possessions  in  certain  cases.  But  as  a  general  thing,  in  the  old  French  law 
as  in  the  Roman  law,  merely  owing  to  the  fact  that  a  corporation  had  a  legal 
existence,  it  was  invested  with  a  civil  personality;  the  authorization  was  not 
a  granting  of  the  personality. 

1  "Ord.,"  I,  siO:  the  king  forbade  the  "scolares  et  doctores"  of  the 
"studium"  of  Orleans  to  form  a  " Universitas " ;  they  would  be  subject  to 
the  laws  "tanquam  singulares." 

^  Religious  orders  which  disappeared  for  lack  of  an  object,  for  example 
the  ransoming  of  captives,  the  care  of  lepers,  etc. 

'  In  1620  the  Abbey  of  Tournus  became  secularized  with  the  consent  of 
all  its  members  in  order  to  be  changed  into  a  collegiate  church:  Juenin,  "Hist, 
de  I'abb.  de  Tournus,"  1733,  cited  by  Charmont,  "Annee  sociolog.,"  1900, 
p.  96  (causes  of  the  extinction  of  corporate  ownersliip). 

*  Is  the  presence  of  a  single  member  sufficient  to  maintain  the  association? 
Controversy.  Cf.  Stobbe,  I,  436.  Can  all  the  members  by  agreeing  to  do  so 
dissolve  the  body?     Ibid.,  Gierke,  "D.  Privatr.,"  §  70. 

^  The  principle  of  the  peculiarity  by  virtue  of  which  legal  persons  must 
keep  within  their  legal  powers,  was  devised  by  modern  judicial  law;  it  was 
unknown  to  the  old  law;  thus  charitable  foundations  were  applied  by  lit- 
erary establishments  (the  Montyon  prize  at  the  French  Academy),  manu- 
factories received  gifts  and  legacies  for  the  poor  or  made  in  the  interests  of 
education,  the  revenues  of  the  charity  schools  established  for  the  benefit  of 
poor  children  were  administered  by  church  wardens:  Jousse,  "Gouv.  des 
fabriques,"  283.  But  we  must  take  into  account  the  fact  that  education, 
charity  and  worship,  were  in  former  times  within  the  scope  of  the  objects  of 
ecclesiastical  establishments. 

897 


§  589]  STATUS   AND   CAPACITY  OF  PERSONS  [Chap.  VI 

the  organs  which  it  gave  itself.^  For  its  ordinary  management  it 
had  one  or  several  agents,  a  "  syndic,"  who  was  elected  and  whose 
powers  varied.  In  contracting  and  in  pleading  he  bound  the 
community  within  the  limits  of  his  powers;  his  act  was  looked 
upon  as  the  act  of  the  community;  it  was  at  his  domicile  that 
writs  against  the  community  were  served.^  The  general  meeting 
of  the  members  formed  the  higher  power;  ^  majority  decided,"* 
excepting  in  that  which  concerned  the  formation  or  the  disso- 
lution of  the  community.  Ordinary  members  had  individual 
rights;  for  example,  that  of  taking  part  in  the  general  meetings, 
or  even,  in  case  the  community  were  dissolved,  of  taking  a  portion 
of  the  community  assets  ("jura  singulorum").^ 

The  estate  of  the  community  belonged  to  the  body  itself,  and 
not  to  each  one  of  its  members,  as  would  have  been  the  case 
with  a  thing  which  was  jointly  possessed.  That  which  was  due 
to  the  body  or  by  the  body  was  not  due  to  any  one  of  its  mem- 
bers, nor  by  one  of  them;  they  could  be  creditors  or  debtors  of 
the  community  and  plead  against  it  just  as  though  they  had  been 
strangers  to  it.  Bodies  and  communities  enjoyed  privileges  and 
were  under  various  disabilities.^    They  were  treated  like  minors; 

1  Distinction  between  the  organ  and  the  representative:  Gierke,  "D. 
Privatr.,"  I,  472. 

2  Actions  against  bodies  and  communities:  Ordinance  of  1670,  21;  Decla- 
ration of  Oct.  2d,  1703  (permission  of  the  manager). 

*  Odofredus  on  1.  9,  1,  and  on  1.  7,  D.,  4,  2,  relates  an  important  decision 
by  Johannes  Bassianus,  with  regard  to  a  revolt  of  peasants  against  the  Arch- 
bishop of  Ravenna:  should  the  "  Universitas "  be  punished  or  the  rebels  "ut 
singuli"?  Bassianus  answered  that  a  distinction  was  to  be  drawTi  according 
as  each  one  had  acted  either  on  his  own  account  or  on  the  other  hand  col- 
lectively, under  instructions,  and  sent  out  at  the  sound  of  the  bell,  with  the 
council  at  their  head;  if  this  were  so  then  the  "Universitas"  ought  to  be  pun- 
ished.    This  doctrine  soon  became  classic. 

*  Gierke,  II,  480;  III,  322,  393,  etc.  (the  majority). 

^  In  such  a  case  as  this  one  wonders  to  whom  the  possessions  reverted. 
The  opinion  which  was  generally  accepted  in  former  times,  was  that  they 
belonged  to  the  State  as  being  goods  without  an  owner:  Gierke,  III,  238. 
The  modern  theories  are  greatly  opposed  to  one  another:  Gierke,  "D.  Privatr.," 
I,  565. 

*  Could  legal  persons  commit  crimes,  or  be  excommunicated?  Cf.  as 
to  this  Family  joint  and  several  responsibility.  Innocent  IV,  in  1245,  for- 
bade the  excommunication  of  a  "Universitas"  (c.  3,  "in  Sexto,"  5,  11;  in  fact, 
the  "Universitas"  is  but  a  fiction,  it  can  neither  wish  nor  act).  This  reason 
had  not  prevented  the  Church  from  placing  nations  and  provinces  under 
an  interdict,  any  more  than  it  had  prevented  the  statutes  and  the  civil  laws 
from  decreeing  penalties  against  towns.  Cf.  on  this  question,  Bartolus, 
on  1.  16,  §  10,  D.,  48,  19;  Gierke,  "D.  Privatr.,"  I,  528;  Mestre,  op.  ciL;  Fertile, 
III,  271.  The  Post-Glossators  admit  the  possibility  of  punishing  com- 
munities. In  1331  the  Parliament  of  Paris  condemned  the  town  of  Toulouse 
to  the  loss  of  its  right  of  being  a  body  and  a  community,  together  with  a 
confiscation  of  its  inheritance,  because  of  the  case  of  a  student,  Aimery  Be- 

898 


Topic  3]  LEGAL  PERSONS  [§  589 

they  had  a  right  to  the  same  privileges;  in  return  for  this  they 
were  subjected  to  a  very  strict  administrative  guardianship, 
whose  form  varied,  but  whose  principle  was  always  the  same,  be- 
ginning in  this  way  to  be  connected  with  the  State.^  They  could 
not  alienate  their  immovables  excepting  by  virtue  of  a  decree 
of  a  judge,^  nor  could  they  acquire  money  invested  in  an  an- 
nuity, under  penalty  of  confiscation,  as  a  consequence  of  royal 
decrees  during  the  monarchic  period.  Under  the  feudal  system 
the  lords  compelled  them  to  give  up  within  a  year  the  fiefs  and 
copyholds  which  they  had  acquired;^  we  have  seen  by  what 
processes  this  prohibition  was  evaded  and  how  there  arose  from 
this  the  theory  of  amortization.'*  The  celebrated  Edict  of  Au- 
gust, 1749,^  made  them  incapable  of  receiving  inheritances,  rent- 
charges  on  specific  lands,  or  rights  in  land.  Their  disability  was 
absolute  with  respect  to  testamentary  gifts.  On  the  other  hand, 
gifts  "inter  vivos,"  or  acquisitions  for  a  consideration,  could  be 
authorized  for  just  and  necessary  causes,  —  that  is  to  say,  as 
an  exception;  ^  they  were  only  allowed  freely  to  acquire  mova- 

renger,  condemned  to  death  by  the  Capitouls  in  violation  of  the  privileges 
conferred  upon  members  of  the  universities:  Ordinance  of  1670,  21,  1. 

1  For  example,  rescission  of  unfair  contracts,  turning  over  of  actions  deal- 
ing with  land  to  the  Public  Ministry,  prescription  of  forty  years,  etc.:  Per- 
tile,  III,  272.  These  privileges  have  disappeared  from  modern  law,  which 
is  disposed  to  lavish  upon  corporations  disabihties  rather  than  favors. 

2  Edict  of  Dec,  1606,  Art.  15;  G.  Forget,  "Personnes,"  "Choses  ecclgs.," 
1611,  p.  60. 

^  The  disability  of  acquisition  of  persons  in  mortmain  is  not  owing  to  the 
fact  that  they  are  for  the  most  part  religious  establishments;  it  exists  in  the 
same  way  for  all  "corpora  mortua."  If  the  first  laws  on  amortizement  were 
directed  against  religious  communities,  and  if  at  all  times  anxiety  has  been 
displayed  as  to  the  accumulation  of  immovable  possessions  in  their  hands, 
this  has  been  owing  to  their  great  prosperity;  lay  communities,  on  the  other 
hand,  have  often  found  themselves  in  embarrassing  circumstances. 

*  Before  the  Edict  of  1749,  the  lords,  in  their  own  interests,  compelled 
the  communities  to  give  up  within  a  year  any  inheritances  which  they  might 
have  acquired,  but  the  king's  attorney  could  do  the  same  thing  in  the  interests 
of  the  public,  says  Pothier,  no.  216,  because  the  possessions  of  communities 
were  taken  out  of  trade.  Cf.  on  this  Lamoignon's  "Arr.,"  16.  In  the  States 
General  of  1614  the  Third  Estate  expressed  the  wish  that  persons  in  mort- 
main should  not  be  able  to  acquire  immovables:  Picot,  "Hist,  des  Et.  gen.," 
Ill,  482.     Cf.  II,  246;  Mourmant,  "These,"  23. 

6  Tardif,  "R.  de  16g.,"  II,  492;  P.  Bernard,  "R.  h.  Dr.,"  X,  37;  Mourmant, 
"These,"  1900  (precedents  for  the  Edict  of  1749);  other  theses:  Coulondre, 
1886;  Pitois,  1890;  A.  Lot,  1895;  Epi7iay,  1896;  Garein,  "La  Mainmorte  1749 
k  1789,"  1903,  etc.  —  Other  countries  also  have  their  legislation  on  posses- 
sions in  mortmain:  Adami,  "Legg.  s.  1.  manimorte,"  1834;  Kahl,  "Deutsche 
Amortisationsgesetze,"  1880;  Gierke,  "D.  Privatr.,"  I,  516;  Pollock,  "Land 
Laws,"  91;  Pollock  and  Maitland,  I,  314,  639. 

8  Letters  patent  registered  in  Parliament  and  only  granted  after  an  in- 
vestigation, for  just  and  necessary  cause:  Civil  Code,  910,  937.  —  Letters 
patent  were  not  necessary  for  mere  pious  or  charitable  foundations,  such 

899 


§  589]         STATUS  AND  CAPACITY  OF  PERSONS      [Chap.  VI 

bles  and  rent-charges  on  the  king  or  other  communities.  In  this 
manner  progress  was  made  towards  the  Revolutionary  legisla- 
tion. The  latter,  which  was  frankly  hostile  to  all  corporate 
ownership,  converted  into  national  possessions  the  possessions  of 
religious  ^  or  secular  communities,  such  as  those  of  the  secular 
clergy.^  At  the  same  time,  it  changed  into  administrative  ser- 
vices that  which  it  left  in  existence  of  the  organizations  of  the 
Old  Regime;  the  change  was  hardly  noticeable,  because  they 
had  already  been  submitted  to  the  administrative  guardianship 
and  were  half  incorporated  in  the  State.  In  this  way  was  ruined, 
after  political  feudalism,  that  which  has  been  called  "corporate 
feudahsm";^  thus  perished  "the  spirit  of  the  corporation,  which 
was  so  dangerous,"  says  Condorcet,  "but  which  was  so  natural  at 

as  masses  or  obituals,  the  sustenance  of  students  or  the  poor,  etc.;  it  was 
sufficient  if  they  were  ratified  by  Parliament. 

1  On  the  suppression  of  religious  communities  and  the  Decree  of  Feb. 
13-19,  1790,  c/.  Avril,  p.  134  (bibl.  and  discussion):  the  real  idea  of  the 
Constituent  Assembly  was  to  reform  the  regular  clergy  rather  than  to  de- 
stroy them;  it  proceeded  in  the  same  manner  with  regard  to  the  secular  clergy. 

2  The  antipathy  felt  by  the  Revolution  towards  corporations  is  still  shown 
in  the  Civil  Code  from  the  lack  of  a  special  title  on  legal  persons.  The 
more  recent  Codes,  such  as  the  German  Code,  do  not  show  this  hiatus.  Cj. 
law  on  associations,  of  July  1,  1901. 

*' There  are  no  longer  any  classes  or  orders  of  corporations,  but  a  gigantic 
administration  which  has  inherited  their  privileges  and  which  fulfills  their 
functions.  During  the  debate  upon  the  question  of  the  possessions  of  the 
Church,  Thouret  declared  amidst  the  plaudits  of  the  Constituent  Assembly, 
that:  "Bodies  are  but  instruments  created  by  the  law  in  order  that  some 
public  good  may  be  derived  therefrom;  what  does  the  workman  do  when  his 
tool  is  not  suited  for  the  work  for  which  he  had  intended  it?  He  breaks  it; 
he  changes  it."  From  a  historical  point  of  view  there  is  nothing  more  in- 
accurate than  this  pretended  creation  of  fictitious  bodies.  The  spirit  of 
the  Revolution  is  very  clearly  shown  in  the  Decree  of  Aug.  18,  1792,  which 
abohshed  religious  and  lay  corporations;  even  those  devoted  to  the  hospital 
service  and  to  the  rehef  of  the  sick.  "Considering,"  says  the  preamble, 
"that  a  State  which  is  truly  free  should  not  allow  in  its  midst  any  corpora- 
tion, not  even  those  which,  devoted  to  the  public  education,  have  deserved 
well  at  the  hands  of  the  fatherland."  With  these  ideas  as  a  basis,  worship 
became  a  pubhc  service,  the  Church  a  special  administration  with  its  budget; 
the  manufactories,  seminaries  and  religious  chapters  re-established  by  the 
Concordat,  are  administrative  persons;  all  other  ecclesiastical  establishments 
(especially  the  religious  communities)  were  done  away  with  by  Article  11  of 
the  "Articles  organiques."  Relief,  the  services  of  the  almshouses,  education 
also,  have  a  tendency  towards  being  changed  into  services  of  the  State.  Cf. 
the  Constitution  of  year  III,  Art.  300.  The  Decree  of  August  8,  1793,  had 
done  away  with  the  Academies  and  literary  societies  patented  or  endowed 
by  the  State.  On  the  15th  of  September,  1793,  the  Convention  also  did  away 
with  the  Faculty  of  Law  and  other  Faculties;  although  this  decree  was  sus- 
pended the  day  following  that  on  which  it  had  been  enacted,  the  Univer- 
sities ceased  to  exist:  Liard,  "L'enseign.  supdr.  en  France,"  I,  p.  217.  The 
Law  of  23  Mess.,  year  II,  united  with  the  national  property  and  debts  the 
assets  and  liabilities  of  the  charitable  institutions.  Details  as  to  the  carrj-- 
ing  out  of  this  scheme  in  Avril,  "Thdse,"  p.  113  et  seq.  Cf.  Italian  Law  of 
the  17th  July,  1890,  on  "opere  pie." 

900 


Topic  S]  LEGAL  PERSONS  [§  590 

a  time  when  everything  was  privileged."  ^  It  is  true  that  it  only 
perished  to  be  born  again.  Modern  law  did  not  feel  the  same 
distrust  of  it  as  did  the  Revolution.^ 

§  590.  Foundations"  Pise  Causae,"  works  of  piety  or  of  public 
utility  (such  as  an  almshouse,  masses,  etc.)  ^  for  which  are  appro- 
priated a  group  of  properties  ("universitas  rerum").  Founda- 
tions are  presented  under  two  principal  forms:  sometimes  it  is  a 
service  imposed  upon  a  legal  person  already  in  existence,  as  when 
a  dying  man  disposes  of  his  property  for  the  benefit  of  a  church 
or  a  monastery,  charging  them  to  pray  for  the  repose  of  his  soul; 
sometimes  it  is  a  gift  for  the  benefit  of  an  organization  to  be  cre- 
ated; thus  an  individual  establishes  and  endows  a  charity  school 
by  will.  In  the  first  case  the  foundation  is  effected  through  an 
intermediary;  ^  and  it  is  natural  that  the  intermediary  chosen 
should  be  a  legal  person,  —  that  is  to  say,  a  person  who  does  not 
die,  —  for  the  foundation  is  in  its  very  nature  perpetual.  In  the 
second  case  the  founder  has  himself  been  able  to  organize  his 
work,  and  thus  to  allow  it  to  continue  after  his  death  (or  even 
during  his  lifetime) ;  ^  if  he  has  not  done  so,  the  Church  or  the 
State  can  serve  as  intermediaries.^  The  persons  who  carry  out 
the  wishes  of  the  founder,  or  the  managers  provided  for  it,^ 

1  "Rapport  sur  I'organ.  de  I'instr.  publ.,"  in  the  "Proc6s-verb.  du  Comity 
d'instr.  publ.  de  I'Assemblee  legisl.,"  published  by  Guillaume,  p.  188.  More- 
over Condorcet  did  not  claim  that  a  monopoly  of  education  should  exist  for 
the  benefit  of  the  State. 

2  Cf.  as  to  Germany,  Gierke,  "D.  Priv.,"  I,  488.  The  modern  English 
system:  corporations  are  formed  without  any  intervention  on  the  part  of  the 
administration,  upon  condition  of  complying  with  a  few  very  simple  formal- 
ities, such  as  the  registration  of  their  by-laws. 

*  German  law:  "Stiftung"  (private  foundation)  and  "Anstalt"  (public 
establishment). 

^  In  this  case  the  foundation  is  in  the  form  of  a  charge;  the  ownership  of 
the  possessions  is  in  the  intermediary,  but  it  is  hmited  by  the  object  for  which 
these  possessions  are  intended.  Cf.  foundations  carried  out  by  persons  in 
being,  for  example  the  will  of  Nicole:  Denisart,  see  " fidcicommis " ;  Lambert, 
"Stipul.  pour  autrui." 

*  Examples  in  the  past:  will  of  the  Countess  Mahaut  ("Cartul.  de  I'hop. 
Saint-Jean  d'Arras,"  p.  27),  of  Giraud  Aymeric  at  Marseilles,  etc.  More 
recently,  the  Staedel  foundation  at  Frankfort  (1828),  the  Bluntschli  founda- 
tion (competition  in  international  law):  Savigny,  "Stiftung,"  etc.  German 
law  places  every  facility  at  the  disposal  of  the  founders,  whereas  French  legis- 
lation seems  to  undertake  to  discourage  them;  a  direct  foundation,  by  last 
will  cannot  be  made  under  it.  The  old  French  law,  on  the  other  hand,  held 
them  to  be  lawful:  Furgole,  "Test.,"  6,  1,  37,  and  84:  validity  of  gifts  for  the 
foundation  of  a  college,  etc.;  they  contain  the  implied  condition:  "Provided 
the  college,  the  almshouse,  etc.,  be  founded,  and  authorized."  The  Edict 
of  1749  forbade  the  creating  of  foundations  by  last  will. 

"  Cf.  under  the  Lower  Empire  rights  of  the  Bishop,  and  even  of  ordinary 
individuals:  C.  J.,  1,  2,  15;  1,  3,  38.     See  ante,  Testamentary  Executors. 
^  Domat,  "Dr.  publ.,"  I,  18,  states  that  the  founders  of  an  almshouse 

901 


§  590]  STATUS   AND   CAPACITY   OF   PERSONS  [Chap.  VI 

are  not  the  owners  of  the  possessions  which  have  been  appro- 
priated for  the  foundation;  ^  these  possessions  are  destined  for  a 
certain  purpose  and  cannot  be  used  for  anything  else;  if  they 
belong  to  anyone,^  it  is  said,  in  the  earlier  instances,  that  they 
belong  to  the  saint  under  the  patronage  of  whom  the  organization 
is  placed;  ^  it  is  upon  his  shrine  that  the  founder  places  the  charter 
containing  the  expression  of  his  will.  This  mystical  person  acts 
by  means  of  miracles  and  creates  for  himself  rights  upon  the 
gratitude  of  the  faithful;  it  is  not  astonishing  that  he  should  be 
looked  upon  as  the  owner.  After  the  barbarian  period  and  follow- 
ing the  Roman  renaissance  we  see  rather  a  sort  of  moral  entity, 
but  as  he  was  more  abstract  than  that  of  bodies  and  commu- 
nities,^ our  old  authors  scarcely  mention  foundations  among 
legal  persons;  however,  their  properties  were  true  estates  in  mort- 
main. When  they  came  to  an  end,  —  which  rarely  happened, 
because  foundations  are  ordinarily  perpetual,  —  the  lands  were 
freed,  but  remained  in  the  hands  of  the  organization  which 
already  possessed  them,  or,  if  this  were  not  so,  passed  to  the 
State  as  possessions  without  an  owner.  ^ 

Foundations  were  not  unknown  in  heathen  antiquity;  ^  thus 

could  establish  within  it  an  administration  which  suited  themselves;  this 
is  no  longer  possible  to-day,  an  administrative  commission  being  appointed 
in  conformity  with  the  law  and  bound  to  follow  the  rules  laid  down  by  the 
law  in  their  management. 

1  Nor  do  these  possessions  belong  to  the  beneficiaries  (which  is  obvious 
in  a  case  where  they  are  animals,  such  as  the  bears  of  Berne).  C/.,  however, 
G.  de  Lapradelle,  p.  418.  The  texts  are  not  very  definite;  thus  it  is  not  a 
rare  thing  for  legacies  to  be  left  to  the  poor.  Thomas  de  Vio  looked  upon 
the  "universitas  pauperum"  as  the  legal  object  of  the  "Mont-de-Piete." 

2  The  o-wnership  was  given  to  the  king  or  the  lord  who  was  the  protector 
of  the  estabUshment,  church  or  almshouse.  See  a  criticism  of  this  opinion 
(which  is  the  one  held  by  Ficker)  in  Heusler,  §  64  et  seq.;  Senn,  "Avoueries 
eccles.,"  1903. 

*  This  idea  is  once  more  found  in  very  old  times:  Cicero,  "in  Caecil.," 
17:  "se  et  omnia  sua  Veneris  esse." 

*  Since  the  time  of  Savigny  and  those  who  followed  him,  a  distinction  is 
drawn  between  two  classes  of  legal  persons,  associations  or  "universitates 
personarum"  and  foundations  or  "universitates  rerum."  Cf.  theory  of 
Brim,  "Pandekt.,"  §  61,  according  to  which  there  are  no  legal  persons,  but 
inheritances  created  in  view  of  a  certain  object  ("Zweckvermogen").  Was 
the  duality  of  legal  persons  admitted  by  our  old  authors?  It  is  certain  that 
the  Edict  of  1749  contrasts  foundations  with  bodies  and  communities.  Cf. 
G.  de  Lapradelle,  pp.  406,  412  et  seq.  Domat,  "Dr.  publ.,"  I,  18,  considers  a 
hospital  a  sort  of  community;  Pothier,  "Don.  entre  vifs,"  I,  4. 

^  Is  the  State  held  bound  to  use  the  property  of  the  foundation  for  some 
similar  purpose?  No,  if  it  takes  it  as  being  goods  without  an  owner;  yes, 
if  one  consider  the  State  as  the  ultimate  grantee  of  this  property  in  the  intent 
of  the  founder:    Gierke,  "D.  Privatr.,"  I,  6.59. 

«  Benuchet,  "Hist,  du  dr.  priv6  Ath^n.,"  Ill,  706.  Foundations  by  Pliny, 
"Ep.,"  VII,  18;   by  Trajan,  Pernice,  "Labeo,'*  III,  150.     On  the  law  of  the 

902 


Topic  3]  LEGAL  PERSONS  [§  590 

Theophrastus  appropriates  his  gardens  for  a  school  of  philosophy, 
and  Phny  the  younger  creates  foundations  for  sustenance  at 
Como,  his  native  place.  But  they  increased  so  greatly  under  the 
influence  of  Christianity,  became  so  extensive  and  took  on  so 
characteristic  a  physiognomy,  that  it  is  not  incorrect  to  look  upon 
them  as  a  Christian  institution.  Under  the  Lower  Empire  and 
during  the  first  part  of  om*  old  law  their  development  was  favored 
through  a  system  of  freedom.^  The  Church  encouraged  them; 
people  were  often  satisfied  with  its  implied  approval.  At  the 
same  time,  the  classical  canon  law  demanded  the  authorization  of 
the  bishop  for  their  validity.^  If  for  a  long  time  they  depended 
upon  ecclesiastical  authority,  the  civil  powers  tended  more  and 
more  to  place  their  hands  upon  them.^  The  same  evolution  took 
place:  from  the  old  system  of  implied  approval  they  passed  in 
1749  to  that  of  an  expressed  authorization.  It  is  the  charter  that 
establishes  the  foundation  and  that  organizes  its  administi'ation 
for  the  future;  if  this  were  lacking,  formerly  the  Church  inter- 
vened, and  later  on  the  State.  The  State  also  intervened  in  the 
matter  of  the  control  and  supervision  of  foundations,  whereas  the 
Church  alone  had  been  charged  with  this  care  in  the  past.'^    The 

Lower  Empire,  C.  J.,  1,  2,  and  1,  3;  "  NoveUa,"  VII,  120,  123,  131.  Gifts 
for  the  benefit  of  the  poor  were  also  declared  to  be  valid  during  tliis  period. 

1  During  the  Frankish  period  foundations  were  frequent.  Sometimes  the 
founder  makes  a  gift  to  the  Virgin  or  to  a  saint  {Thevenin,  "Textes,"  p.  2.54; 
Italy,  "patrimonium  Crucifixi,"  Fertile,  III,  268;  England,  Pollock  and 
Maitland,  I,  481;  cf.  ancient  Customs,  Guiraud,  "Propr.  en  Grece,"  p.  238), 
and  sometimes  he  makes  a  gift  for  the  benefit  of  an  abbey,  or  a  church  {Par- 
dessus,  "Dipl.,"  I,  81,  138,  etc.;  Loening,  "Deutsch.  Kirchenr.,"  I,  250;  II, 
37  et  seq.;  Gierke,  II,  962;  III,  198  et  seq.).  The  monastery  of  Lorsch  was 
founded  by  Count  Cancor  and  his  mother,  and  delivered  by  them  to  the 
Bishop  of  Metz,  whom  they  charged  to  deliver  it  to  another  person  whom  he 
should  choose.  The  Capitularies  seem  to  recognize  the  independence  of 
foundations  of  almshouses  ("xenodochia"):  "Capit.,"  I,  189,  194,  200,  etc. 
G.  de  Lapradelle,  p.  41,  maintains,  on  the  other  hand,  that  they  all  belong 
to  some  one,  a  church,  a  monastery  or  the  king:  Windscheid,  "Pand.,"  57. 
At  the  beginning  of  the  feudal  period  their  independent  existence  is  the  result 
of  gifts  made  for  their  benefit  ("hospitaU  lego,"  etc):  Richard,  "Cartul.  de 
I'hop.  Saint-Jean  d 'Arras,"  1888,  p.  xxvii. 

2  Dig.  X,  3,  36,  4;  Tiraqueau,  "De  privil.  pia?  causa,"  5,  4.  In  the  same 
way  in  order  to  create  a  monastery  it  is  necessary  to  have  the  authority  of 
the  pope  and  of  the  bishop,  besides  letters  patent  from  the  king  registered  in 
Parliament. 

3  Edict  of  1543  conferring  upon  the  royal  judges  the  surveillance  over 
foundations  having  a  charitable  object  (it  had  been  complained  that  the 
regular  clergy  which  had  the  administration  of  them  were  making  use  of 
their  revenues  for  their  own  benefit).  Cf.  Edicts  of  1629,  1639,  16.59,  1666 
and  1749.  In  England,  from  the  sixteenth  century  on,  the  king,  who  is  the 
visitant  of  all  foundations,  has  them  inspected  by  commissioners  of  charity. 

*  Its  role  also  became  more  important  in  charitable  matters.  One  sees  an 
example  of  this  in  the  development  of  the  part  played  by  the  bureaus  of 
charity.    They  were  formed  under  the  Revolution  to  distribute  to  the  poor, 

903 


§  590]  STATUS    AND    CAPACITY   OF   PERSONS  [CllAP.  VI 

Church  often  took  these  responsibiUties  easily,  paying  Httle  heed 
to  the  intentions  of  the  founders;  ^  this  was  a  good  pretext  for 
royal  authority,  which  was  always  eager  to  extend  itself,  and  it 
looked  into  and  ratified  the  titles  of  the  foundations,  the  result 
being  a  very  restrictive  legislation,^  almost  entirely  summed  up 
in  the  Edict  of  1749,  Arts.  2  and  5.^  The  Revolutionary  legisla- 
tion did  not  show  itself  any  more  favorable  to  foundations  than  it 
had  to  corporations.  The  Law  of  May  6,  1791,  Art.  25,  abolished 
them  entirely,  taking  as  its  basis  the  ideas  advanced  by  Tur- 
got  in  his  article  in  the  Encyclopedia:  "If  every  man  who  has 
lived  had  a  tomb  for  himself,  and  there  remained  no  more  land  to 
be  cultivated,  it  would  indeed  be  necessary  to  destroy  these  useless 
monuments  and  scatter  the  ashes  of  the  dead.  Thus  there  comes 
a  time  when  a  foundation  can  no  longer  keep  its  character;  other- 
wise, lands  would  no  longer  belong  t-o  the  living,  but  to  the  dead."  ^ 

funds  accruing  from  a  tax  upon  public  entertainments  (poor  tax):  Law  of 
7  Frim.,  year  V.  The  Order  of  27  Prair.,  year  IX,  gave  them  the  property 
which  had  been  devoted  to  charitable  foundations.  It  is  perhaps  using  this 
as  a  basis  that  the  charity  bureaus  have  been  made  the  necessary  represen- 
tatives of  the  poor,  the  only  ones  which  are  qualified  to  receive  and  manage 
gifts  made  to  the  poor. 

1  Appeals  against  the  abuse  of  power,  protests  of  the  jurisconsults:  Chopin, 
"De  sacra  politia,"  1,  4,  20;  Feuret,  "Abus,"  I,  p.  206,  ed.  1736.  By  the  Edict 
of  Jan.,  1780,  the  State  made  itself  the  cashier  of  Establishments  in  mortmain; 
they  must  pay  over  to  it  all  sums  arising  from  the  sale  of  immovables  or  from 
gifts  yielding  interest  at  the  rate  of  5  per  cent.  This  law  illustrates  the  fact 
that  there  might  be  occasion  to  sell  the  real  estate  of  the  almshouses.  "When 
the  guardian  contemplates  converting  the  inheritance  of  his  wards  into  per- 
sonal property,  he  is  quite  ready  to  appropriate  it  for  himself  at  the  first 
opportunity." 

2  In  former  times,  on  the  other  hand,  the  "causa  pia"  enjoyed  numerous 
favors  in  the  same  way  as  the  Church,  the  Treasurer  and  minors  did  (allowed 
to  dispense  with  the  forms  required  for  wills,  an  implied  mortgage  over  the 
possessions  of  the  administrators,  preferred  liens  on  those  of  its  debtors,  etc.); 
Dig.  X,  3,  26,  10.  Tiraqueau  tells  us  of  no  less  than  167  preferred  liens  for  its 
benefit:  Stobbe,  I,  517;  Gierke,  III,  760. 

'  Edict  of  Aug.,  1749,  Art.  5 :  ratification  of  the  deeds  granting  foundations  by 
the  Parliaments,  whereas  the  establishment  of  bodies  and  communities  could 
only  take  place  by  virtue  of  letters  patent  of  the  king;  Art.  2:  prohibition 
of  testamentary  foundations  with  the  object  of  creating  bodies  and  commu- 
nities or  for  the  benefit  of  persons  charged  with  their  creation.  Cf.  Spanish 
Placards  in  Flanders:  Patou,  on  "Lille,"  I,  200;  Ferriere,  on  "Paris,"  13,  2, 56. 

*  The  Decree  of  Nov.  4,  1789,  which  placed  all  the  possessions  of  the  Church 
at  the  disposal  of  the  nation,  did  not  take  into  account  foundations.  Cf. 
Decree  of  Nov.  18,  1789;  of  Oct.  23,  1790;  of  May  6,  1791;  the  Decrees  of  23 
Mess.,  year  II,  and  13  Brum.,  year  II,  added  the  possessions  of  the  alms- 
houses and  foundations  to  those  already  belonging  to  the  nation.  The  Decree 
of  16  Vent.,  year  III  (Feb.  21,  1795),  Art.  9,  held  that  "no  perpetual  gift  or 
gift  for  life  can  be  made."  —  Afterwards  there  was  a  reaction;  thus  the  Law 
of  9  Fruct.,  year  III,  suspended  the  sale  of  possessions  of  the  almshouses; 
the  Law  of  28  Germ.,  year  IV,  and  16  Vend.,  year  V,  restored  their  posses- 
sions to  the  civic  almshouses,  etc.;  Concordat,  Art.  15,  etc.  These  provisions 
inaugurated  the  new  law. 

904 


Topic  3]  LEGAL  PERSONS  [§  590 

The  liberal  tendencies  of  the  English  legislation  are  in  contrast 
with  this  restrictive  law;  since  the  reign  of  Elizabeth  foundations 
can  be  established  with  the  greatest  facility,  and  they  have  in- 
creased to  such  a  point  as  often  to  relieve  the  State  of  its  duty  of 
education;  thus  the  great  universities  and  their  colleges  are  kept 
up  with  the  income  of  private  foundations;  the  Catholic  Church 
has  no  other  income.^ 

1  The  new  German  Civil  Code,  II,  2,  sanctions  the  principle  of  the  freedom 
of  foundations,  but  the  State  must  authorize  their  operation.  Cf.  the  Swiss 
Federal  Code  of  Obligations,  Art.  716. 


905 


INDEX 


INDEX 


[References  are  to  pages.] 


A. 

Abandonment,  350. 
Abdication  of  possessions,  722, 
Abduction,    11;  imitation   of,  12;  by 
violence,  113;  with  seduction,  114. 
Absence,  658,  839,  n.  3. 
Acceptance,  and  rejection  of  succes- 
sion,  668;  of  succession  pure  and 
simple,  668;  right  of  wife  to  choose 
between,  and  renunciation  of  com- 
munity, 844. 
Accessories  (of  immovables),  271,  n.  5. 
"Accipiens,"  289. 
"Accusatio,"  132. 
"  Achasius,"  153. 

Acknowledgment  of  mortgage,  619. 
Acquests,    267,   273;   partnership    of, 
808;  community    of,   823;  commu- 
nity of,  and  movables,  823;  commu- 
nity reduced  to,  829. 
Acquisition,  of  ownership  of  immov- 
ables,   350;   principal   methods   of, 
"inter vivos,"  350;  of  heirship,  658; 
of  title  by  inheritance,  664. 
Act  of  August  10,  1882,  786. 
Action,  penal,  295;  for  a  lost  thing, 
298;  of  theft,  298;  possessory,  302, 
329,   337;  real   and  personal,   306; 
and  plea  "spolii,"   319;  of  simple 
seisin,  348;  at  law  for  repurchase, 
446;  "de  transgressione,"  of  tres- 
pass, 506. 
"  Acts  of  law,"  382. 
Administration,    of   the  community, 
833;  of  wife's  personal  belongings, 
837. 
Adoption,  217. 
Adultery,  17,  136;  penalties  for,  137; 

of  the  husband,  189. 
Advancement  of  inheritance,  676. 
"  Affatomie,"  685,  686. 
Affiliation,  or  foster-brotherhood,  219. 
"  Affinitas,"  125. 

Agency  (and  representation),  539. 
Agnates,  proprietary  guardianship  by, 
233. 


Agnation,  18. 

Agreements,  freedom  of  matrimonial, 
,823. 

Alemanni,  32. 

Alienation,  for  a  consideration,  52; 
"inter  vivos,"  274;  by  will,  276. 

Aliens,  868;  disability  of,  876. 

Alliance,  61. 

"Allmend,"35,  36,  45. 

Ancestor  worship,  20. 

"Anefang,"  293. 

"  Anerbe,"  53. 

"  Anerbenrecht,"  637,  n.  4. 

Anglo-American  townships,  38. 

Anglo-Norman  law  on  possessory' 
actions,  329. 

Apprehension,  or  taking  possession. 
See  Possession. 

Arms,  taking  up,  183,  n.  5. 

'' Arramitio,"  477. 

Arrest,  order  of  arbitrary,  188,  n,  4; 
privilege  of,  589. 

Ascendants,  641,644;  competition  be- 
tween, and  brothers  and  sisters,  649, 
n.  3;  partition  by,  725. 

Assemblies  of  relatives,  252.  See 
Popular  Assembly. 

Assets,  separation  of,  682;  community, 
826. 

Assignment,  533. 

Assignment  of  claims,  early  inaliena- 
bility, 531;  indirect  means  of,  532; 
novation  by  changing  creditors,  532; 
simultaneous  undertaking  of  debtor 
towards  creditor  and  third  party, 
532;  payment  with  subrogation, 
534. 

Assize,  of  "  Mort  d' Ancestor,"  333;  of 
"novel  disseisin,"  330. 

Attorneys,  544. 

Attornment,  404.  n.  1. 

"  Auflassung,"  389. 

Authentic,  "  Sed  Hodie,"  138;  "Si 
qua  Mulier,"  804;  "Omnes  Peri- 
grini,"  872. 

Authorization,  letter  of,  508,  n.  2.  See 
Husband. 


909 


INDEX 

[Beferences  are  to  pages] 


B. 


Bailiff's  men,  596. 

Banishment,  883. 

Bankruptcy,  563;  fraudulent,  563. 

Banns,  104,  n.  1. 

Barbarian  law  on,  second  marriages, 
1.52;  reclaiming,  289;  pledge,  dis- 
traint, 590;  primogeniture,  634; 
gifts  "inter  vivos,"  703;  reserva- 
tion and  legal  share,  734;  curtesy, 
768. 

Bastards,  condition  of,  207;  succes- 
sion to  estate  of  intestate.  See  Suc- 
cession. 

Beaumanoir  on,  system  of  husband's 
authorization,  176;  paternal  power, 
194;  immovables,  270;  disseisin, 
339;  repurchase,  439;  killing  ani- 
mals causing  damage,  462;  agree- 
ments, 503;  obligation  by  writing, 
507;  nullity  of  contracts,  513;  com- 
panies or  secret  communities,  553; 
communities,  816;  suretyship,  578; 
customary  dower,"  769;  administra- 
tion of  community,  833;  judicial 
separate  estate,  842. 

"  Beilager,"  102. 

Betrothals,  93;  essential,  95. 

Bids.    See  Land  distraint. 

Bills,  to  bearer  and  to  order,  535;  of 
exchange,  538. 

Birth,  of  a  child,  759,  n.  2;  proof  of, 
862. 

Blow  with  the  palm  of  the  hand,  495. 

"Bocland,"  401,  n.  3. 

Bodies  and  communities,  893. 

Bond,  603,  607;  general,  608;  special, 
609;  comparison  of  general  and 
special,  609. 

Brothers  and  sisters,  competition  be- 
tween, and  ascendants,  649,  n.  3. 

Boundaries,  marking,  310. 

Bourjon,  on  title,  303. 


"Cagots,"  888. 

Canon  law,  97;  previous  to  Council 
of  Trent,  101;  of  divorce,  143;  on 
second  marriages,  154;  on  posses- 
sion, 317. 

Capacity  of  persons,  862,  867. 

"Cap.  Extravag.,"  34.  Capitulary  of 
819,  34,  236;  of  789,  144,  521;  of 
829,  144;  of  Worms,  236;  of  803, 
354;  "legi  addita,"  354;  of  809, 
371,  372;  of  818-819,  735;  of  821, 
763. 

Castes,  60. 


"Causa  mortis,"  gifts.  See  Gifts, 
"causa  mortis." 

"Cause,"  515. 

"Census,"  " reservativus,"  529;  "con- 
stitutivus,"  529;  " consignativu.s," 
529. 

Certificates,  of  civil  status,  862,  864; 
secularization  of,  of  civil  status, 
865;  of  religious  status,  863. 

"Cestui  que  use,"  408. 

Charges,  416. 

Charter,  great,  of  Henry  III,  406;  of 
exemption,  545. 

Chattels,  270. 

Chiefs,  76. 

Child,  birth  of  a,  759,  n.  2. 

Children,  position  of,  15;  indepen- 
dence of,  25;  of  first  marriage, 
protection  of,  156;  exposure  of ,  181, 
n.  1;  sales  of,  181,  n.  4;  father's 
right  of  correction  of,  187;  capacity 
of,  under  authority,  192;  adoption 
of,  217;  of  different  marriages,  637, 
n.  5;  remaining  in  family  commun- 
ity, 675;  unexpected  birth  of,  714; 
dower  of,  777.  See  Illegitimate 
Children. 

"  Chrenecruda,"  565. 

Church,  the;  legislation  of,  on  mar- 
riage, 88;  jurisdiction  of,  over 
marriage,  89;  890. 

Cities,  892. 

Civil  Code  on,  power  of  father,  200; 
movables,  288;  market  overt,  300; 
good  faith,  304;  transfer  of  owner- 
ship, 367;  transcription,  385,  3S6; 
short  and  long  term  leases,  413; 
servitudes,  421,  425;  repurchase, 
430;  payment  with  subrogation,  535; 
assignment  of  claims,  535;  mort- 
gages, 619;  primogeniture,  638; 
representation,  641;  reversion,  648; 
devolution,  651;  acquiring  pos- 
session of  inheritance,  667;  joint 
possession  and  partition,  670;  tes- 
tamentary executors,  692;  gifts 
between  spouses,  711;  gifts  "causa 
mortis,"  715;  appointment  of  heir 
by  contract,  719;  abdication  of 
possessions,  725;  entails,  733;  reser- 
vation and  legal  share  and  freedom 
to  dispose  by  will,  745;  dower,  769; 
unity  of  possessions,  794;  para- 
phernalia, 802;  partnership  of  ac- 
quests, 811;  succession  to  estate  of 
deceased  alien,  879;  civil  death,  885. 

Civil  death,  468,  658,  880,  884;  penal, 
883 

Clan,  21,  64;  Celtic,  65. 

Classes,  60;  of  population,  70. 

Clause,  to  order,  535,  536;  to  bearer. 


910 


INDEX 

[References  are  to  pagea] 


535;  value  received,  539;  by  waj- 
of  avoidance,  597,  n.  4. 

"Clearance,"  617. 

"Clientele,"  66. 

Codicil,  701,  n.  2. 

Cognation,  18. 

Collaterals,  641,  648;  nearest  in 
degree,  648;  privilege  of  double  tie, 
650;  representation,  650;  devolu- 
tion, 650. 

"Colonges,"  37. 

Colonies,  62. 

Common  law,  the,  783. 

Common  recovery,  406. 

Commons,  rights  of,  44,  45,  267; 
partition  of,  49. 

Commune  or  "Dessa"  of  Java,  41. 

Community,  312,  893;  family,  20,  22, 
750;  of  possessions,  28,  812;  village, 
in  India,  39;  secret,  553;  systems 
without,  750,  783;  systems  with, 
783;  comparison  between,  and 
marriage  portion  system,  807;  sys- 
tem, 812;  origin  of,  of  possessions 
between  spouses  —  distinctive  char- 
acteristics, 812;  juridical  nature  of, 
812,  n.  1;  date  of,  815;  causes 
which  produced,  and  directed  evo- 
lution of,  817;  forms  of,  822;  gen- 
eral, 822,  829;  partial,  823;  of 
acquests,  823;  of  movables  and 
acquests,  823;  Customary,  823;  by 
agreement,  823;  what  it  consists  of, 
826;  personal  belongings,  827; 
reduced  to  acquests,  829 ;  liabilities, 
829;  administration  of,  833;  dis- 
solution of,  839;  continuation  after 
death,  839;  recompenses  due  from, 
851;  of  inhabitants,  892. 

Companies,  553. 

Competition  between  ascendants  and 
brothers  and  sisters,  649,  n.  3. 

Complaint  in  cases  of  seisin  and  tres- 
pass, 342;  procedure  of,  344. 

Composition,  pecuniary,  462. 

Compulsory  satisfaction.  See  Satis- 
faction. 

Concubinage,  159. 

Condition  of  women,  221;  in  public 
law,  223;  changes  in,  225;  German 
and  Italian  law,  226;  in  France, 
227;  Velleianum  Decree  of  the 
Senate  on,  227. 

Conditions,  theory  of  implied,  500. 

Conferred  fifth,  740,  ?i.  1. 

Confession  of  judgment,  597. 

Confinement  expenses,  210. 

Confiscation,  282,  653. 

Conjunctive  wills,  702. 

Connection  of  characteristics,  63. 

Consanguinity,  622. 


Consent,  mere,  does  not  bind,  471. 

Consuls,  878,  n.  1. 

Continuation  of  community  after 
death,  839. 

Contracts,  471;  between  spouses,  175, 
n.  6;  Prankish  period,  471;  real 
and  formal,  472;  real,  475;  judicial, 
474;  extra-judicial,  474;  formal, 
477;  formation  of,  by  writings,  487; 
feudal  period,  491;  "in  re,"  491; 
English  law,  505;  proof  of,  505,  n. 
1;  nullity  of,  513;  rescission  of,  514, 
517;  "cause,"  515;  particular  kinds 
of,  519;  pignorative,  602;  appoint- 
ment of  an  heir  by,  718;  of  marriage, 
gift  by,  720,  n.  3. 

Contribution  to  debts,  860. 

Conversion,  into  money,  828;  of 
realty  into  personalty,  829. 

Conveyances,  gratuitous,  621,  624. 

Copyholds,  375;  English,  407. 

Corporations,  893. 

Corpse,  attachment  of,  561. 

Correction,  right  of,  over  wife,  167; 
over  children,  187. 

Costs,  true,  in  action  for  repurchase, 
448. 

Council  of  Lateran,  1215,  125. 

Council  of  Trent,  105,  131,  864. 

Counter-increase,  781. 

Countries  of  Customs  on,  legal  rever- 
sion, 647;  surviving  spouse,  652; 
appointment  by  will,  698;  marriage 
portion  system  and  community,  807. 

Countries  of  Written  Law  on,  suc- 
cession, 623;  legal  reversion,  647; 
surviving  spouse,  652;  appoint- 
ment by  will,  698. 

"Couvade,"  17. 

Covenants,  pertaining  to  succession, 
689;  relating  to  inheritance,  716; 
"de  hereditate  tertii  viventis,"  717, 
n.  4;  upon  future  succession,  716. 

Criminal  intent,  457. 

Crops,  605. 

Cross-action,  558;  ibid.,  n.  2. 

Cumulative  gift  of  present  and  future 
possessions,  722,  n.  1. 

Curtesy  of  England,  768. 

Custodian,  guardian  and,  are  but  one, 
266. 

Custody,  232;  nobleman's,  245;  ple- 
beian, 246;  citizen's,  247. 

"Customary  common  law,"  611. 

Customary  dower,  seat  of,  772. 

Customary  law  on,  prescription,  363; 
servitudes.  423.  424;  suretyship, 
572;  pledge,  distraint,  591;  dis- 
traint upon  immovables,  595;  bond, 
607;  "universal"  heir,  663;  ac- 
quiring  possession   of   inlieritance, 


911 


INDEX 
[Reterences  are  to  pages] 


666;  partition,  672;  appointment 
of  heir  and  wills,  685 ;  gifts  between 
spouses,  711;  abdication  of  posses- 
sions, 723;  reservation  and  legal 
share,  738;  legal  share,  742;  in- 
crease of  marriage-portion,  780; 
mourning  and  residence,  781;  in- 
alienability of  marriage  portion, 
791;  unity  of  possessions,  794; 
entering  religious  orders,  882. 

Customary  reservation,  738. 

Customary  third,  779,  n.  1. 

Customs  relating  to  the  stock,  277, 
443,  649;  of  side  and  line,  277,  443, 
649;  of  side  alone,  277,  443,  650; 
of  absolute  equality,  677;  of  simple 
equality,  677;  of  reference-legacy, 
677. 

Customs,  countries  of.  See  Coun- 
tries OF  Customs. 


D. 


Damage,  caused  by  animals  or  inani- 
mate things,  460. 

Damages,  465,  559;  compensatory, 
559;  for  delay,  559. 

Daughters,  excluding  from  inheri- 
tance, endowed  in  marriage,  633. 

Dead,  the,  enfeoffs  the  living,  665; 
share  of  the,  691;  civilly,  880. 

Death,  proof  of,  862;  civil,  468,  658, 
880,  884;  penal  civil,  883;  for 
debts.  See  Compulsory  Satis- 
faction. 

Debts,  payment  of,  678;  hereditary, 
719,  n.  6;  previous  to  marriage,  829; 
of  inheritances,  830;  of  the  spouses, 
831;  contribution  to,  860. 

Declaration  of,  June  23,  1772,  384; 
April,  1664,  805;  AprU  9,  1736,  865; 
the  Rights  of  Man,  282,  655;  recent 
work,  349. 

Decree  of,  March  15  to  28,  1790,  240, 
654;  9  Mess.,  year  III,  387;  April 
8-15,  1791,  640,  655;   17  Niv.,  year 

II,  641,  655;  5-12  Brum.,  year  II, 
655;  9  Fruct.,  year  II,  661;  25 
Oct.-14  Nov.,  1792,  732;  October 
1685,  865. 

Decree,  voluntary,  617. 
Decretal,  "Saepe  contingit,"  320;    of 
Alexander   III,    359;     of   Innocent 

III,  359;  of  Gregory  IV,  887. 
Deed,  notarial,  708. 

Default,  566. 

Delay,  571,  n.  1. 

Delivery,  367;  symbolical,  369;  in 
court,  371;  "per  cartam,"  374;  of 
the  deed,  379;  pretended,  392;  con- 


ditions and  effects  of  pretended, 
397;  estimate  of  pretended,  398. 

Demand  for  a  stolen  thing,  298. 

"Denier,  sou  et,"  94. 

Descendants,  lawful,  627. 

"Dessa,"41. 

Devise,  725.  ' 

Devolution,  651. 

Disability,  persons  under  a,  867;  of 
aliens,  876. 

Disbursements,  in  action  of  repur- 
chase, 448. 

Disinheritance,  660;  officious,  661. 

Dismemberment,  62. 

Dispensations,  130. 

Disposal  of  share  brought  by  wife, 
761. 

Dispossession,  voluntary,  289. 

Disqualification,  661. 

Disseisin,  375. 

Disseisin-seisin,  375. 

Dissolution,  of  marriage,  141,  758; 
of  the  community,  839. 

Distinctions,  social,  60. 

Distraint,  private,  upon  movables, 
586;  -pledge,  589;  on  domestic 
animals  damage-feasant,  590;  -writ, 
591,  n.  6;  upon  distraint  invalid, 
593,  n.  1,  601;  origin  of,  upon 
immovables,  594;  land,  596;  land, 
documentary  right,  597;  proper, 
600;  feudal,  600,  n.  2;  land, 
public  announcements  and  award, 
60i;  land,  objections,  601;  land, 
bids,  601;  land,  preferences,  602; 
land,  later  law,  602. 

Distribution  by  shares,  593. 

Divesting,  375;  vesting  and,  375. 

Division,  622;  right  of,  47. 

Divorce,  141;  Germanic  law,  142; 
Canon  law,  143;  Revolutionary 
law,  148. 

Domanial  right  over  aliens,  873. 

Domicile,  658,  n.  8. 

Dominion,  53. 

"Dos,"  755. 

Double  tie,  privilege  of,  650. 

Dower,  765;  conditions  requisite  for 
existence  of,  769;  kinds  of,  769; 
by  agreement  (or  prearranged),  769, 
771;  Customary,  769;  amount  of 
legal,  771;  seat  of  Customary,  772; 
wife  obtains,  on  going  to  bed,  773; 
forfeiture  of,  774;  rights  of  wife 
over,  774-776;  of  children,  777. 

Druids,  71. 

Dumoulin  on,  movables,  302;  pre- 
scription, 363;  gifts  between  spouses, 
711;  debts  of  spouses,  831;  rights  of 
wife,  835,  836;  right  of  wife  to 
renounce  the  community,  845. 


912 


INDEX 

[References  are  to  pages] 


E. 


Earnest  money,  492. 

Ecclesiastical  superior,  intervention 
of,  500. 

Ecclesiastical  judge,  intervention  of, 
500. 

Edict  of,  Nantes,  revocation  of,  108, 
865;  Henry  II,  Feb.  1556,  116; 
July  1560,  156;  Rotharis,  168,  221; 
Aug.  1606,  229;  1664,  229;  June 
1771,  384,  618;  Aug.  1626,  386; 
May  3,  1553,  401;  Dec.  1703,  401; 
Oct.  1705,  401;  1771,611;  Mothers, 
1567,  643;  1606,  805;  Nov.  28, 
1757,  865;  Aug.  1749,  899,  904. 

Emancipating  majority,  198. 

Emancipation,  of  woman,  26;  of  chil- 
dren, expressed,  195,  196. 

Eminent  domain,  53. 

Emolument,  benefit  of,  859. 

Enclose,  freedom  to,  310. 

Encumbered  marriage,  writ  of,  792. 

Encumbrances  upon  land,  411. 

Endogamy,  8. 

Enfeoffs  the  dead,  the  living,  665. 

Enforcement,  means  of,  on  tne  person, 
558. 

English  law  on,  theft,  298,  n.  4;  own- 
ership, 311;  transfer,  381;  delivery 
and  transfer,  401  et  seq.;  contracts, 
505;  mortgages,  606,  n.  1;  sub- 
stitutions or  entails,  726,  n.  6;  free- 
dom to  dispose  by  will,  748,  n.  2; 
property  of  spouses,  system  with- 
out community,  783;  foundations, 
905. 

Entails,  726;  perpetual,  731;  secret, 
731;  allowed,  733,  n.  2. 

Entry  of  a  deed  of  gift,  708,  ibid., 
n.  4. 

Equality,  Customs  of  absolute,  677; 
Customs  of  simple,  677. 

"Equites,"  71. 

Equity,  courts  of,  786. 

"Erbtochter,"  629. 

Estates,  in  tail,  733,  n.  2;  separate, 
807;  separate  judicial,  842. 

"Estovers,"  417. 

Estrays,  284. 

"Evelganc,"  624. 

Excluding  from  inheritance  daughters 
endowed  in  marriage,  633. 

Excommunication,  561,  884. 

Execution,  upon  the  person,  564;  upon 
possessions,  582;  upon  immovables, 
594;  by  creditors,  859. 

Executors,  testamentary,  691;  names 
for,  692,  n.  1;  legal,  692,  n.  5;  ap- 
pointed, 692,  n.  5. 

Exogamy,  8. 


Exposure  of  children,  181,  n.  1. 
Expropriation,  282. 
Extrajudicial  acts  of  wife,  172. 


Factors  of  social  evolution,  62. 

"Faderfium,"  755. 

Failure,  562. 

Faith-pledging,  495,  497. 

Family,  origin  of,  1;   82;    institutions 

in  our  period,  53;  Le  Play's  "stock," 

53;  change  of,  167;  solidarity,  463; 

interest  of,  636. 
Fasting,  562. 
Father,  power  of,  has  no  existence,  186; 

rights  over  person  of  children,  187; 

intention    on    part    of,    to    create 

servitudes,  424. 
"Faustpfand,"  583. 
Feoffment  with  livery  of  seisin,  402. 
Ferriere,  on  movables,  303. 
"Festuca,"  370,  482. 
Feudal    law,    on    guardianship,    237; 

majority,     259;      reservation     and 

legal    share,     738;     foreigners    or 

aliens,  870. 
Feudal    period,    relinquishment    and 

loss  of  property,   296;    possession, 

322;    transformation  of  system  of 

ownership  of  land  delivery,  374. 
Feudal    system,    of    succession,    632; 

of  primogeniture,  635. 
Feudists,  theory  of,  47. 
"Fidejussio,"  571,  575. 
"Fides  facta,"  477,  480. 
Fiefs,  268,  375;    lease  of,  240;    lease 

of,  to  whom  does  it  belong?,  241; 

lease    of,    ceases,    244;     masculine, 

632;  feminine,  632;  do  not  ascend, 

644. 
Fifth,  conferred,  740,  n.  1. 
Filiation,  proof  of  natural,  209. 
Fine,  or  recognizance  at  law,  404. 
"Flurzwang,"  44. 
"Folcland,"  401,  n.  3. 
Following,  the  Germanic,  68. 
Foreigners,  868. 
Forests,  prerogative  of,  285. 
Forfeiture  of  dower,  774. 
"Forisfamiliatio,"  196. 
Formal  act,  478,  n.  2. 
Formalism,  consequences  of,  486. 
Formal  will,  701. 

Foster-brotherhood,  or  affiliation,  219. 
Foundations  "piae  causae,"  901. 
Four-fifths,  reservation  of,  27(i,  740. 
Fourth,  poor  man's,  652;    heir's,  741, 

n.  3. 
Frankish    law    on,    possession,    321; 


913 


transfer  of  property,  367;  sale  with 

redemption,  603. 
Fraternization,  219. 
Freedom,   to  enclose,   310;    to  grant 

"inter  vivos,"  426. 
Freehold.     See  Tenure. 
French  practice  on  pretended  delivery, 

396. 
Fund,  movables  invested  as  a,  851. 


G. 

"Ganerbschaften,"  624. 

"Genossenschaft,"  312. 

"Gens,"  21,  64;  maternal,  64;  Roman, 
65. 

"Gerade,"  623,  628,  n.  4. 

Germanic  law  on,  divorce,  142;  illegit- 
imate children,  202 ;  condition  of 
women,  221;  waifs  and  estrays,  284; 
transfer  of  property,  389;  contracts, 
472;  intestate  succession,  621;  priv- 
ilege of  male  line,  628;  representa- 
tion, 639;  acquiring  possession  of 
inheritance,  667;  entails,  728,  n.  5. 

Germanic  marriage  portion,  750. 

"Gewere,"  315;  "  rechte,"  355. 

Gifts,  675;  "inter  vivos,"  52,  703; 
"causa  mortis,"  684,  703,  715; 
"pro  anima,"  691;  during  bar- 
barian period,  703;  irrevocability 
of,  707;  formalities  of,  708;  be- 
tween spouses,  710,  713,  n.  2,  793; 
mutual,  712,  713,  n.  2;  revocation 
of,  713;  by  contract  of  marriage, 
720,  n.  3;  cumulative,  of  present  and 
future  possessions,  722,  n.  1 ;  by  way 
of  reference-legacy,  739,  n.  2;  of 
the  morning,  754;  of  movables,  793. 

God's  pence,  494. 

Good  faith,  in  prescription,  358. 

Government,  55;  personal,  59. 

Gratuitous  conveyances.  See  Con- 
veyances. 

"Grundbucher,"  391. 

Guardian,  does  not  represent  minor, 
235;  rights  of,  242;  obligations  of, 
243;  powers  of,  250;  subrogated, 
252;  and  custodian  are  but  one,  266. 

Guardianship,  232;  perpetual,  14; 
of  minors  during  barbarian  period, 
232;  maternal,  233,  n.  1;  proprie- 
tary, by  agnates,  233;  over  the 
person  of  the  minor,  233;  inter- 
vention of  the  State  in,  237;  Feu- 
dal law,  237;  by  appointment,  238; 
lease,  238;  plurality  of,  238;  seign- 
iorial protection,  238;  modem,  247; 
appointive,  in  France,  248;  testa- 
mentary, 249;   guarantees  in  inter- 


INDEX 

[Referencea  are  to  pages] 


est  of  minor,  251 ;  of  mother,  250, 
71.  1;  council  of,  253,  n..  2;  emanci- 
pation of  minors  under,  260. 

"Giitereinheit,"  793. 

"Guterverbindung,"  793. 

H. 

Hair,  cutting  of,  183,  n.  5. 

' '  Handlungsf ahigkeit, ' '  867. 

"Hantgemal,"  623. 

"Haro,"  334. 

"Heergewate,"  623,  628,  n.  4. 

Heir,  of  the  body,  626;  role  of,  662; 
"universal,"  663;  one  cannot  be, 
and  legatee  at  the  same  time,  678; 
ceremony  of  appointing  an,  685; 
appointing  an,  by  contract,  718; 
fourth,  741,  n.  3. 

Heirship,  acquisition  of,  658. 

Hereditary,  seisin,  665;  debts,  719, 
n.  6. 

Holographic  will,  700. 

Homestead,  53. 

Hostage,  574. 

House,  627;  and  lineage,  626. 

Hue  and  cry,  raising  the,  334. 

Husband,  power  of,  163;  authority 
of,  170;  authorization  of,  how  given, 
173;  authorization  of,  special,  173; 
supplementary  authorization  given 
by  law,  174;  absence  or  illness  of, 
174;  minority  of,  174;  effects  of 
authorization  of,  176;  lack  of  au- 
thorization of  176;  in  sixteenth 
century,  176;  rights  of  third  parties 
towards,  177;  system  of  "mundium" 
of,  749;  rights  of,  during  marriage, 
756;  limitations  on  power  of,  834. 

Hypothec,  603,  615;  mortgage,  610; 
judicial,  614. 


Illegitimate  children,  202;  bom  of  a 
free  woman,  203;  of  a  mother 
who  was  not  noble,  204;  termi- 
nology, 204,  n.  6;  Christian  ideas  on, 
204;  law  of,  monarchic  period,  207; 
legitimation  of,  213. 

Immovables,  268,  271 ;  execution  upon, 
594;  origin  of  distraint  upon,  594; 
administration  of,  of  wife,  790;  of 
marriage  portion  inalienable,  803. 

Impediments  to  marriage.  111;  classi- 
fication of,  112;  invalidating,  112; 
incapacity,  119;  resulting  from 
relationship,  121;  previous  mar- 
riage, 126;  entering  religious  orders, 
126;  monastic  vows,  126;  diversity 


914 


INDEX 
[Relerences  are  to  pages] 


of  religion,  126;  prohibitive  impedi- 
ments, 128. 

Impotence,  119. 

Imprisonnaent  for  debt,  567. 

Impuberty,  119. 

Inalienability,  of  marriage  portion, 
791;  of  immovables  of  marriage 
portion,  803. 

Incapacity,  to  succeed,  659;  to  give 
and  to  receive,  710. 

Incest,  6. 

Incompatibility  of  marriage  with 
other  conditions,  126. 

Incorporeal  property,  314. 

Increase  of  marriage  portion,  779. 

Indemnity  due  by  person  repurchas- 
ing, 447. 

Indissolubility,  reaction  against,  147. 

Infamous,  the,  885. 

Infanticide  of  girls,  8. 

Influence,  undue,  742,  n.  4. 

Ingratitude  of  donee,  713. 

Inhabitants,  communities  of,  892. 

Inheritance,  271;    by  way  of  escheat, 
281;      excluding    from,     daughters 
endowed    in    marriage,    633;     ad 
vancement  of,  676;    covenants  re- 
lating to,  716;  debts  of,  830. 

Innkeeper.     See  Rights. 

Insane,  system  of  caring  for,  263. 

Intent,  criminal,  457. 

"Inter  vivos."     See  Gifts. 

Interest.     See  Loan  with  Interest. 

Intestate  succession.  See  Succes- 
sion. 

Inventory,  time  to  make,  and  deliber- 
ate, 669;  privilege  of,  670. 

Investiture,  375,  387;  real,  368; 
public,  see  Public  Investiture. 

Irregular  succession,  653. 

Irrevocabihty  of  the  gift,  707. 

Issues,  605;  acquirement  of,  309,  n.  4. 


Jerusalem,  Assizes  of,  192,  580. 

Jewels,  781. 

Joint  ownership,  conception  of  family, 

185.    See  Ownership. 
Jointly  acquired  property,  827. 
Judicial  acts  of  wife,  173. 
Judicial  council,  265. 
Judicial  sale,  616. 
Judicial  separation,  145. 
"Jus  ad  rem,"  307. 
"Jus  in  personam,"  308. 
"Jus  in  re,"  308. 
"Jus  sanguinis,"  874. 
"Jus  soli,"  874. 
"Juveigneurie,"  19. 


K. 


Kindred,  641. 
Kings,  76. 
Krokis,  6. 
Kumites,  6. 
"Kunkelmagen,"  67,  643. 


Labor,  division  of,  63. 

Land-distraint,  596;  documentary 
right,  597;  or  judicial  sale,  616. 
See  Distraint. 

Land-gage,  602,  604. 

Lateran,  Council  of,  125. 

"Launegild,"  705. 

Law,  putting  outside  the,  73,  466; 
"acts  of,"  382. 

Law  of,  Aug.  14,  1792,  49;  June  10, 
1793,  49;  Aug.  28,  1792,  199;  11th 
Brum,  year  II,  211;  Sept.  20,  1792, 
IV,  2,  260;  Aug.  13,  1791,  281; 
Apr.  21,  1810,  283;  July  12-19, 
1791,  283;  Apr.  13-30,  1791,  285; 
Oct.  6,  1791,  300;  Jan.  3,  1791, 
314;  Sept.  19-27,  1790,  385;  11 
Brum,  year  VII,  385,  401,  414,  619; 
Mar.  23, 1855,385;  1704,410;  1735, 
410;  Oct.  1,  1845,  410;  Dec.  18, 
1790,  414;  9  Mess,  year  III,  414, 
619;  Sept.  7,  1790,  515;  Sept.  3, 
1807,  525;  Aug.  11,  1789,  528;  24 
Vent,  year  V,  569;  15  Germ,  year 
VI,  569;  Mar.  23,  1855,  619;  17 
Niv.  year  III,  648,  651;  Nov.  22- 
Dec.  1,  1790,  652,  654;  June  4, 
1793,  656;  5-12  Brum,  year  II,  656, 
711;  15  Therm,  year  IV,  656; 
3  Vend,  year  IV,  656;  17  Niv.  year 
II,  677,  711,  769;  4  Germ,  year 
VIII,  677,  747;  7  Niv.  year  V,  694; 
Aug.  10, 1882,  786;  "  Assiduis,"  807; 
28  Pluv.  year  VII,  866;  May  6, 1791, 
904. 

Lease,  of  fiefs,  240;  and  release,  403; 
for  a  long  and  short  term,  412; 
for  possession  at  will,  414. 

Legal  persons,  889. 

Legal  reversion,  645. 

Legal  share,  624,  633,  734,  741;  by 
what  right  did  one  collect?  744. 

Legatee,  one  cannot  be  heir  and, 
at  the  same  time,  678. 

Legitimation,  213;  by  rescript  of  the 
prince,  215. 

"Legitime,"  734,  741. 

Lepers,  886. 

Letters  of,  authorization,  508,  n.  2; 
claim,  597,  n.  3;    "pareatis,"  599; 


915 


INDEX 

fReJerences  are  to  pages] 


ratification,  618;  naturalization, 
875. 

Levirate,  16. 

"Lex  Julia,"  229. 

Liabilities,  community^  829. 

Lien,  specific,  611;  judgment,  614; 
general  mortgage,  614;  implied,  615; 
on  hereditary  possessions,  682. 

Limitations  upon  powers  of  husband, 
834. 

Lineage,  82,  641;  house  and,  626; 
ascendants  and  collaterals,  641. 

Loan  with  interest,  519;  forbidden, 
519;  sanction  of  prohibition  of,  521; 
legal  effect  of  prohibition  of,  from 
civil  point  of  view,  522;  legal  effect 
of  prohibition  of,  from  penal  point 
of  view,  522;  reaction  against  the 
prohibition  of,  523. 

Lord,  interest  of  the,  635. 

Loss,  292,  297. 

Loysel  on,  treasures,  284;  waters  and 
ways,  286;  possession,  317;  trans- 
fer of  ownership,  392 ;  on  pretended 
delivery,  399;  negligence,  457; 
accomplices,  459,  460;  damages,  465; 
putting  outside  the  law,  467;  con- 
tracts, 505;  warranty,  550;  com- 
panies, 554;  suretyship,  574;  pledge 
of  movables,  586;  land  distraint,  597; 
' '  pagani ' '  and  ' '  milites, ' '  623 ;  devo- 
lution, 651;  gifts  "inter  vivos," 
703;  mutual  gifts,  712;  dower,  776; 
administration  of  wife's  personal 
belongings,  838;  right  of  wife  to 
renounce  the  community,  845;  re- 
strictions upon  persons  in  mortmain, 
corporations,  etc.,  895. 


M. 


Macedonian  Decree  of  the  Senate, 
193,  193,  n.  6. 

"Malnete,"  19. 

"Mainpl^vie,"  794. 

Maintenance,  separate,  29,  749,  750. 

"Majorat,"  726. 

Majority,  emancipating,  198;  bar- 
barian, 258;  full,  260;  persons 
who  have  attained,  and  are  under  a 
disability,  262. 

Male  line,  privilege  of,  628. 

Manorial  svstem,  43. 

Manors,  268. 

March,  the  Germanic,  35,  37. 

"Maritagium,"  755. 

Market  overt,  300. 

"Marrenage,"  417. 

Marriage,  87,  101;  formation  of,  11; 
by   servitude,    13;    effects   of,    14,  | 


136;  system  of  Gauls,  14,  ji.  2; 
religious,  15,  88;  after  the  inva- 
sions, 87;  civil,  89;  legislation,  88; 
jurisdiction  of,  89;  promises  of,  98; 
through  an  agent,  103,  n.  5;  civil 
legislation  of,  107;  of  Protestants, 
107;  impediments  to,  111;  invali- 
dating impediments  to,  112;  con- 
sent to,  lack  or  defects  in,  112;  con- 
sent of  relatives  to,  114;  monarchic 
law  of,  116;  consent  of  the  king  to, 
118;  consent  of  lords  to,  118;  inca- 
pacity for,  119;  impediments  to, 
resulting  from  relationship,  121; 
relationship  by,  125;  incompati- 
bility of,  with  other  conditions,  126; 
prohibitive  impediments  to,  128; 
preventing,  129;  nullity  of,  132; 
rehabihtation  of,  134;  repudiated, 
134;  dissolution  of,  141,  758; 
second,  152;  union  other  than,  158; 
morganatic,  161;  "in  conformity," 
633;  rights  of  wife  over  dower 
during,  774;  property  brought  by 
wife  or,  788;  fitting,  788;  writ 
of  encumbered,  792;  obligations 
contracted  by  wife  during,  804; 
debts  previous  to,  829;  proof  of, 
862. 

Mairiage  portion,  28;  Germanic,  750; 
Roman,  755,  801;  increase  of,  779; 
inalienability  of,  791 ;  owTiership  of, 
803;  immovables  of,  innlienable, 
803 ;  movables  of,  805 ;  movables  of, 
inalienability  of,  805;  comparison 
of  system  of,  and  community,  807. 

Married  woman,  incapacity  of,  787. 

Married  Woman's  Property  Act,  29. 

Marry,  obligation  to,  99. 

Maternal  family,  10. 

Matriarchate,  5. 

"Melioratio,"  737. 

Merging  of  movables  of  spouses,  828. 

"Mesnie,"  84. 

Minority,  of  husband,  174;  renuncia- 
tions of  benefit  of,  257. 

Minors,  guardianship  of,  232;  posses- 
sions of,  234;  not  represented  by 
guardian,  235;  suspension  of  ac- 
tions by  or  against,  235;  interven- 
tion of  the  State  for,  237;  guaran- 
tees in  interest  of,  251 ;  capacity  of, 
254;  emancipation  of,  under  guar- 
dianship, 260. 

"Mir,"  38. 

Monarchic  law,  legislation  and  juris- 
prudence on  marriage,  91;  on  mar- 
riage, consent,  116;  on  illegitimate 
children,  207;  on  transfer  of  prop- 
erty, 380;  on  constitution  of  com- 
munities, 897. 


916 


INDEX 

[References  are  to  pages] 


Monastic  vows,  126. 

Money,  conversion  into,  828;  earnest, 
492. 

Monogamy,  23,  24. 

Morganatic  marriages,  161. 

"Morgengabe,"  754,  760. 

"Mort-gage,"  605,  606,  ?i.  1. 

Mortgage,  realty,  602;  creatable  bj' 
notarial  deed,  611;  is  result  of 
notarial  deed,  611,  612;  conse- 
quences of,  616;  acknowledgment 
of,  619;  German  system  of,  619; 
given  during  joint  possession,  674; 
guaranteeing  restitution  of  mar- 
riage portion,  806;  married  woman's, 
860. 

Mortmain,  persons  in,  893. 

Mother,  rights  of,  194;  guardianship 
of,  2.50,  n.  1. 

Mourning,  781. 

Movables,  268;  and  chattels,  270; 
ownership  of,  288;  cannot  be  fol- 
lowed, 288;  cannot  be  followed  by 
way  of  mortgage,  301;  judicial  law 
of  eighteenth  century  of,  302;  the 
seat  of  debts,  582;  pledging  of, 
based  on  agreement,  583;  private 
distraint  upon,  586;  of  wife,  789; 
of  marriage  portion,  805;  inalien- 
ability of,  of  marriage  portion,  805; 
community  of,  and  acquests,  823; 
merging  of,  of  spouses,  828;  in- 
vested as  a  fund,  851. 

"Mundium,"  163,  167,  179,  183; 
limited  duration  of,  183;  trans- 
formation of,  185;  of  husband, 
749. 

Mutual  gifts,  712,  713,  n.  2. 

Mystic  will,  701. 


N. 


Nams.     See  Public  Nams. 

Nationality,  874. 

Naturalization,  letters  of,  875. 

Niyoga,  16. 

Norman  system  of  property  of  spouses, 

787. 
Notarial  deed,  611,  614,  708. 
Notes  in  blank,  536. 
Notice,  public.     See  Public  Notice. 
"Novella,"  134, 10, 138;  118,  623,  641, 

642,  655. 
Nullity  of,  marriage,  132;   contracts, 

513;   contracts  and  rescission,  514; 

contracts,  absolute,  515;  contracts, 

relative,  517. 
Nuncupative      will,      700;      written, 

701. 
Nuptial  benediction,  102. 


O. 


Oath,  effects  of,  498;  conditions  for 
regularity,  498;  promissory,  498; 
confirmatory,  4^,  499. 

Objections.     *See  Land-distu.\int. 

Obligations,  number  and  importance 
of  contractual,  in  modern  law,  450 
characteristics  of,  in  old  law,  451 
in  modern  law,  452;  by  writing,  507 
to  support,  743,  n.  4;  contracted  by 
wife  during  marriage,  804. 

Occupation,  351. 

Offense,  454;  flagrant,  292;  public 
and  private,  454;  by  one  family 
against  another,  455;  character- 
istics of,  455;  special  kinds  of,  469; 
wife's,  831,  n.  4. 

Offer  to  next  of  kin.  See  Repur- 
chase. 

Orders,  Regulating,  of  Parliament  of 
Paris,  of  Mar.  18,  1614  and  Dec. 
23,  1621,  264;  of  1529,  792. 

Ordinance  of,  1639,  98;  Blois,  107, 
117,  157,  522,  864;  Feb.  1556,  210; 
Aug.  1539,  256,  599;  Villers- 
Cotterets,  400,  613,  864;  Moulins, 
511,613,614,732;  1510,518;  1667, 
552,  568,  571,  592,  599,  845,  865, 
877;  1673,  556,  563,  570;  1551 
(Public  Announcements),  597;  Or- 
leans 1560,  599,  732;  1579,  599; 
1629,  599;  1735,  699,  702;  1731,  709, 
715;  1747,  730,  732;  1214,  771, 
772;  "Relating  to  People  Subject 
to  Mortmain,  Aliens  and  Bastards," 
873 

"Ordinarium,"  346,  n.  2.  • 

Outcasts,   886,  888. 

Ownership,  1,  30,  267;  collective,  31, 
41,  43;  of  movables,  30,  288;  of 
land,  30,  305,  308;  of  soil  among 
Gauls,  31,  n.  2;  of  land  among 
Alemanni,  32;  in  Rome,  32,  n.  1; 
family  joint,  50,  51;  beneficial,  53; 
individual,  54;  domain,  309;  bene- 
ficial, 309;  restrictions  on  right  of, 
309;  hmited,  311;  joint,  311; 
party,  311,  312;  of  immovables, 
acquisition  of,  350;  transfer  of, 
by  agreement,  367;  of  marriage 
portion,  803, 


"Palmata,"  495. 
"Pannage,"  417. 
Paraphernalia,  802. 
"Pareatis,"  letters  of,  599. 
Parents,  duties  of,  189. 


917 


INDEX 

[References  are  to  pages] 


Partition,  857;  between  co-heirs,  670; 
forms  of,  671;  in  fact,  671;  of 
right,  671;  thirty  days  after  the 
death,  670,  n.  §;  effects  of,  672; 
declaratory  effect  of,  675;  by 
ascendants,  725;  transactions  pre- 
vious to,  849;  of  assets,  851;  of 
liabiHties,  859. 

Partnership,  civil  and  commercial,  553; 
commercial,  555;  in  its  collective 
name,  555;  limited,  556;  anony- 
mous, 557;  with  shares  of  stock,  557; 
of  acquests,  807. 

Party  walls,  312;  ownership,  see 
Ownership. 

Pasture  on  waste  land,  44. 

"Paterna  paternis,  materna  maternis," 
52,  277,  643,  645,  649. 

Paternity,  recognition  of,  16;  inves- 
tigation of,  209. 

"Patria  potestas,"  183;  perpetuity  of, 
183. 

Patriarchate,  11. 

Pawn  shops,  525,  n.  1. 

Payment  of  debts,  678. 

"Peculium  castrans"  or  "quasi  cas- 
trans,"  192. 

Penal,  action,  295;  clauses,  489. 

"Per  capita,"  639,  n.  3. 

Period  for  repurchase,  445. 

Person,  rights  over,  correction,  187; 
status  and  capacity  of,  862,  867; 
legal,  889;  in  mortmain,  893. 

Personal  belongings,  267,  273;  inherit- 
ance of,  276;  do  not  ascend,  277, 
644;  jointly  held,  277;  real,  277; 
by  agreement,  277;  past  and  present, 
278;  fictitious,  or  received  by  repre- 
sentation, 278;  community,  827; 
of  wife,  837. 

Personal  government,  59. 

Personal  rights,  305. 

Philosophers  of  eighteenth  century, 
147. 

"Pigneratio,"  586. 

Pignorative  contracts,  602,  604. 

Plea  of  seizure  and  sale,  616. 

"Plobs,"  71. 

Pledge,  passes  to  condition  of  acces- 
sor}^ security,  585;  distraint-,  589; 
by  legal  process,  590. 

Pledging  of  movables,  based  on  agree- 
ment, 583. 

"P16gerie,"  571,  575. 

"Plenarium,"  346,  n.  2. 

"Plcvine,"  571. 

Political  bodies,  889. 

Political  forms,  58. 

Political  function,  72. 

Political  organs,  73. 

Polyandry,  7. 


Polygamy,  22. 

Poor  man's  fourth,  652. 

Popular  Assembly,  73. 

Possession,  315;  voluntary  relin- 
quishment of,  296;  joint,  311; 
Canon  law,  317;  yearly,  328; 
recovery  of,  340;  provisional,  345; 
confirmed,  346;  immemorial,  360; 
apprehension,  or  taking  of,  368; 
putting  in,  in  fact,  372;  resort  to 
the  origin  of,  649;  putting  in  legal, 
665,  n.  4. 

Possessions,  community  of,  28,  750; 
rights  of  parents  over,  190;  of  the 
minor,  234;  without  an  owner,  281; 
abdication  of,  722;  cumulative  gift 
of  present  and  future,  722,  ?i.  1; 
German  system  of  unity  of,  793; 
between  spouses,  origin  of  com- 
munity of,  812;  nobleman's,  838, 
n.  2. 

Pothier  on,  movables,  303;  refunding 
of  debts,  676;  rights  of  wife,  836. 

Poverty,  sworn,  438. 

Power,  of  the  husband,  163;  paternal, 
178;  sources  of  paternal,  178; 
origin  of  paternal,  179;  of  the  father 
has  no  existence,  186;  limitations 
upon  the,  of  the  husband,  834. 

Pre-emption,  43,  426. 

Preference,  of  first  to  distrain,  593; 
between  mortgage  creditors,  617. 
See  Land-distraint. 

Prerogatives,  royal,  279;  over  the 
ground,  281;  of  mines,  283;  of 
forests,  285;  over  waters,  286; 
over  public  ways,  286. 

Prescription,  short  and  long,  353; 
Roman,  361 ;  of  ten  to  twenty  years, 
361;  of  thirty  years,  361;  Custom- 
ary law,  363;  of  serv'itudes,  424; 
which  extinguishes  or  liberates,  558. 

"Pretium  nuptiale,"  750,  760. 

Privilege,  of  the  male  hne,  628;  of  the 
double  tie,  650. 

Primogeniture,  19,  634. 

Probatory  force,  509,  n.  6. 

Procedure  of  repurchase,  445. 

Profits,  legal,  191;  upon  alienation, 
673. 

Promiscuity,  3. 

Promise  to  sell,  547. 

Promises  and  stipulations  on  behalf 
of  another,  541,  n.  2. 

Proofs,  as  to  kinds  of  property,  278; 
of  contracts,  505,  n.  1;  written,  507; 
early  methods  of,  of  civil  status,  862. 

Property,  classification  of  immovable, 
into  personal  belongings  and  ac- 
quests, 52;  divisions  of,  267;  of  the 
enemy,  282;  incorporeal,  314;  sub- 


918 


INDEX 

[References  are  to  pages] 


ject  to  repurchase,  441;  system  of, 

between     spouses,    749;     acquired 

jointly,  827.  _ 
Propriet}',  public,  125. 
Prosecution,  system  of  individual,  562. 
Protestants,  marriage  of,  107. 
Provisions,  testamentary,  684. 
Puberty,  118. 

Public  authority,  appeal  to,  188. 
Public  investiture,   Breton,   381;    by 

proclamation,  385. 
Publicity,  611. 
Public  nams,  countries  of,  380,  610; 

Customs  of,  381,  384;  effects  of,  384. 
Public  notice,  giving  of,  at  Metz,  387. 
Putting  outside  the  law,  73,  466. 


Q. 

'Querela  novae  dissaisin.T,"  330. 


R. 

Rankj  617. 

Real  mvestiture.     See  Investiture. 

Real  rights,  267,  305. 

Real  securities,  582. 

Real  servitudes,  420. 

Realty-mortgage,  602. 

Recalling  to  succession,  640,  718,  n.  1. 

"Rechte  gewere."     See  "Gewere." 

"Rechtsfiihigkeit,"  808. 

Reclaiming,  not  admitted,  296,  n.  4; 
procedure  on,  of  immovables,  306, 
n.  3. 

Recompenses,  849,  850,  852;  due  from 
community,  851;  due  from  spouses 
to  community,  8.56. 

Recovery  of  possession.  See  Posses- 
sion. 

Reference-legacy,  Customs  of,  677; 
gifts  by  way  of,  739,  n.  2. 

Refunding,  675;  of  debts,  676;  of 
immovables  in  kind,  678;  of  im- 
movables by  taking  less,  678. 

Reinvestment,  849,  852;  agreements 
for,  852;  independent  of  agree- 
ment, 853. 

"Reipus,"  152. 

Rejection,  acceptance  and,  of  succes- 
sion, 668. 

Relationship,  82;  as  an  impediment  to 
marriage,  121;  method  of  comput- 
ing, 12.3;  by  marriage,  125;  civil, 
124;  spiritual,  124. 

Relatives,  assemblies  of,  252;  consent 
of,  sec  Repurchase. 

Releases,  560. 

Religion,  diversity  of,  126. 

Religious  orders,  entering,  120,  880. 


Relinquishment,  voluntary',  of  pos- 
session, 296. 

"Remedium  spolii,"  origin  of,  318. 

Rent-charge,  527. 

Rents,  416;  origin  of  establishment  of, 
526;  constituted,  528;  personal, 
530;   life,  531. 

Renunciation,  of  succession,  633;  to 
future  succession,  669;  of  a  future 
inheritance,  716;  right  of  wife  to 
choose  between  acceptance  and,  of 
community,  844. 

Representation,  lack  of,  639;  in 
collateral  line,  650. 

Representative  of  the  person,  681. 

Repurchase,  43,  426,  439;  Ijy  neigh- 
bors, 427;  by  a  community,  427;  for 
convenience,  428;  of  a  joint  posses- 
sion, 428,  431;  seigniorial,  428; 
by  a  person  of  same  lineage,  428, 
433;  by  agreement,  428;  disad- 
vantages of,  429;  suppression  of, 
429;  in  Civil  Code,  4.30;  of  a  con- 
tested right,  430;  of  an  inheritance, 
431,  672;  consent  of  relatives  for, 
435;  offer  to  next  of  kin  for,  435; 
conditions  of,  441;  property  subject 
to,  441;  acts  which  give  rise  to,  442; 
who  has  the  right  to,  443;  against 
whom,  is  allowed,  445;  of  "half 
funds,"  445;  procedure,  445;  effects 
of,  448. 

Rescission,  of  contracts,  514,  517;  of 
sale,  552. 

Reservation,  624,  734;  of  four-fifths, 
276,  740;  Customary,  738. 

Residence,  781. 

Respites,  571,  ibid.,  n.  1. 

Responsibility  for  the  act  of  another, 
460. 

Restriction,  right  of,  47. 

Reversion,  legal,  645;  of  the  inherit- 
ance, 713. 

Revocation,  of  wills,  701;  of  gifts,  713. 

Revolutionary  law,  on,  rights  of  com- 
mons, 48;  marriage,  92,  109;  pu- 
berty, 118;  divorce,  148;  power  of 
father,  199;  proof  of  paternity,  211; 
condition  of  women,  230;  guardi- 
anship, 253;  repurchase,  440;  loan 
with  interest,  525;  rents,  528;  im- 
prisonment for  debt,  569;  mort- 
gages, 618;  succession,  623,  654; 
primogeniture,  638;  gifts  between 
spouses,  711;  renunciation  of  a 
future  inheritance,  716;  appoint- 
ment of  an  heir  by  contract,  719; 
abdication  of  possessions,  724;  en- 
tails, 732;  reservation  and  legal 
share  and  freedom  to  dispo.se  by 
will,  745;    dower,  769;    succession 


919 


INDEX 

[References  are  to  pages] 


to  estate  of  deceased  alien,  879; 
civil  death,  885;  suppression  of 
clergy,  and  confiscation  of  church 
property,  891,  900;  communities 
of  inhabitants,  893;  confiscation  of 
community  property,  900,  904. 

"Rhedo,"  623. 

Rights,  real  and  personal,  305;  in 
land,  411;  of  profits,  417;  of  bene- 
ficiary over  ecclesiastical  benefice, 
419;  of  innkeeper,  589;  to  mainte- 
nance, 743;  of  husband  during 
marriage,  756;  of  wife  over  prop- 
erty jointly  acquired,  762;  of  wife 
over  dower,  774;  of  wife  over  dower 
during  marriage,  774;  of  wife  over 
dower  at  death  of  husband,  776; 
of  wife  to  choose  between  accept- 
ance and  renunciation,  844;  seign- 
iorial and  domanial,  over  aliens,  873; 
of  succession  to  estate  of  deceased 
aliens,  876. 

Ripuarian  law,  354. 

Rings,  781. 

Romanists,  theory  of  the,  48. 

Roman  law,  on,  transfer  of  ownership, 
393;  servitudes,  421;  contract  in 
writing,  487;  nullity  of  contracts, 
514;  rescission  of  sale,  552;  execu- 
tion on  person,  564;  mortgages,  610; 
lineage,  642;  "universal  heir,"  663; 
acquiring  possession  of  inheritance, 
666;  partition,  672;  responsibility 
of  heir  for  debts,  678;  gifts  between 
spouses,  710;  covenants  upon  future 
succession,  716;  legal  share,  741; 
marriage  portion,  755,  801,  802; 
legal  persons,  889. 

Roman  marriage  portion,  755,  801. 

Royal  prerogatives,  279. 


"  Sachsenspiegel "  on,  repurchase,  con- 
sent of  relatives,  436;  self-defense, 
456;  unity  of  possessions,  796. 

"Saisine,"  315. 

Sale,  547;  of  new-born  children,  181, 
n.  4;  formation  of,  547;  promise 
of,  547;  effects  of,  548;  warranty 
because  of  eviction,  549;  rescis- 
sion of,  552;  with  redemption,  602, 
603. 

Salic  law,  11,  34;  on  marriage  of 
widows,  1.52;  "de  migrantibus," 
354;  on  offense  committed  by  a 
band,  459;  on  family  composition, 
464;  on  formal  contracts,  477;  on 
debtor  of  "Wergeld,"  565;  on 
pledge-distraint,    590;     on   inierit- 


ance  of  women,  629;  on  appointing 
an  heir,  687. 

"Salmann,"  542. 

Satisfaction,  compulsory,  560;  com- 
pulsory, intervention  of  the  law,  565 ; 
compulsory,  procedure  based  on 
hearing  of  both  parties,  565;  com- 
pulsory, death  or  slaverj'  for  debts, 
565. 

"Schwabenspiegel,"  164,  796. 

"Schwertmagen,"  67,  643. 

Second  marriages,  152;  in  countries 
of  written  law,  155. 

Secularization  of  certificates  of  civil 
status,  865. 

Securitj^,  485;  on  community  posses- 
sions and  on  those  of  the  husband, 
853. 

Seigniorial  protection,  238. 

Seigniorial  right  over  aUens,  873. 

Seisin,  324;  acquired,  325;  under 
law,  326;  giving  of,  375;  hereditarj^, 
665. 

Self-help,  564. 

Senate,  75. 

Separate  estate,  807;  judicial,  842. 

Separate  maintenance,  29,  749,  750. 

Separation,  judicial,  145;  demand  for, 
in  cases  of  distraint,  593,  n.  1;  of 
assets,  682. 

Servitudes,  real,  420;  natural  and 
legal,  422;  of  public  utility,  422; 
of  private  interests,  45^2 ;  established 
by  act  of  man,  423;  intention  on  part 
of  father  to  create,  424. 

Set-off,  558,  ibid.,  n.  2. 

Share.     See  Legal  Share. 

Share  of  the  dead,  691. 

"Sippe,"  21,  67,  622. 

Sisters,  competition  between  brothers 
and,  and  ascendants,  649,  n.  3. 

Slavery  for  debts.    See  Satisfaction. 

Slaves,  72._ 

Social  distinctions,  60. 

Social  evolution,  factors  of,  62. 

Social  laws,  62. 

Society,  55;  how  formed,  61;  ele- 
mentary and  composite,  63,  77; 
primitive,  63. 

Solidarity,  486,  n.  1 ;  family,  463. 

"Solus  consensus  obligat,"  501. 

"Sondergut,"  798. 

"Sou  et  denier,"  94. 

"Speermagen,"  67,  643. 

"SpUlmagen,"  67,  643. 

"Splitting,"  643. 

Spouse,  surviving,  652. 

Spouses,  contracts  between,  175,  n.  6; 
gifts  between,  793;  system  of 
property  between,  749;  debts  of, 
831. 


920 


INDEX 

(References  are  to  page3l 


State,  the,  origin  of,  55;  organic 
theory  of,  5G;  intervention  of,  in 
matters  of  guardianship,  237. 

States,  confederation  of,  61;  Federal, 
61. 

Status  of  persons,  862,  867;  certifi- 
cates of  civil,  862;  certificates  of 
rehgious,  863;  secularization  of 
certificates  of  civil,  865. 

Statute,  "De  Donis,"  311;  of  Ed- 
ward III,  405;  "De  Religiosis," 
406;  of  Westminster  II,  406;  of 
Uses,  409. 

Stipulation,  497. 

Stock  family  of  Le  Play,  53. 

Stocks,  by  ("per  stirpes"),  639, 
n.  3. 

Sub-rank,  617. 

Subrogation,  593,  n.  1;  actual,  278; 
action  of,  430. 

Substitutions  in  trust.     See  Entails. 

Succession,  systems  of,  19;  rules  of, 
51;  intestate,  621,  626;  preference 
for  intestate,  621;  various  kinds  of, 
622;  plurality  of,  622;  to  estates  of 
intestate  bastards,  627,  n.  6,  653; 
calling  back  to  the,  632,  640;  feudal 
system  of,  633;  renunciation  of, 
633,  668;  recalling  to,  640,  718,  n.  1; 
to  movables  and  acquests,  642; 
to  personal  belongings,  642;  irregu- 
lar, 653;  to  estate  of  deceased 
aliens,  653,  876,  878;  confiscation 
of,  653;  vesting  of,  658;  incapacity 
to,  659;  acceptance  and  rejection 
of,  668;  acceptance  of,  pure  and 
simple,  668;  renunciation  to  future, 
669;  time  to  make  an  inventory 
and  deliberate  for,  669;  covenants 
pertaining  to,  689. 

Suggestion,  742,  n.  4. 

"Suiheredes,"626,  n.  2. 

"Summariissimum,"  346,  n.  2. 

"Summarium,"  346,  n.  2. 

Support,  obligation  to,  743,  n.  4. 

Surety,  personal,  558. 

Suretyship,  571;  modern,  579. 

Surrender,  350,  368;  of  possessions, 
569;  debtor's,  616. 

Surviving  spouse.     See  Spouse. 

Sworn  faith,  497. 

Symbolical  delivery.     See  Delivery. 

System,  of  property  between  spouses, 
749;  of  husband's  "mundium," 
749;  without  community,  750,  783; 
with  community,  783;  English,  of 
property  of  spouses,  783;  Norman, 
of  property  of  spouses,  787;  Ger- 
man, of  unity  of  possessions,  793; 
Roman,  of  marriage  portion,  801; 
of  community,  812. 


Taking  by  proclamation  at  Metz,  381. 

Taking  up  arms,  183,  n.  b. 

Tanistry,  19,  639. 

Tenement,  of  five  years,  358;  dom- 
inant, 420;   servient,  420. 

Tenure,  53;  servile,  268;  allodial,  268; 
of  a  year  and  a  day,  356;  freehold, 
379,  402;  free  urban,  414. 

"Terra  salica,  631. 

"Terra  aviatica,"  631. 

Testamentary  executors,  691. 

Testamentary  provisions,  684. 

Theft,  292,  298. 

"Theilrecht,"  800. 

"Thinx,"  685. 

Third  parties,  authorization  of  hus- 
band, 177. 

Title,  acquirement  of,  by  inheritance, 
664. 

"To  give  and  to  withhold  is  not  valid," 
705. 

Torrens  Act,  366. 

Town,  Gallic,  69;  Germanic,  69;  the 
ancient,  78. 

Township,  Anglo-American,  38. 

Trade,  things  which  do  not  come  with- 
in, 279. 

Tradeswoman,  wife  as,  171. 

Transactions,  previous  to  partition, 
849. 

Transcription,  385. 

Transfer  of  claims,  533. 

Transfer  of  ownership  by  agreement, 
367. 

Treasure,  284. 

Trent,  Council  of,  105,  131,  864. 

"Triage,"  47. 

Tribe,  68. 

U. 

Unity,  German  sysem  of,  of  posses- 
sions, 793. 

Ultimogeniture,  636,  n.  1. 

Undue  influence.     Sec  Influence. 

Unexpected  birth  of  children.  See 
Children. 

Union,  personal,  61;  actual,  61. 

"Universal"  heir.     See  Heir. 

Uses,  408. 

Usucaption,  301. 

Usufruct,  418. 

Usury,  521. 


Vclleianum  Decree  of  the  Senate,  165, 

171,  228,  499,  573,  787,  804. 
"Verfangenschaft,"  799. 


921 


INDEX 

[References  are  to  pages] 


"Venvaltungsgomeinschaft,"  793. 
"Vestigium  minare,"  292. 
Vesting,  and  divesting,  375;    of  suc- 
cession, 059. 
"Vestitura,"  315. 
"Vif-gage,"  605. 
Voluntary  decree,  617. 
Vows,  190,  n.  4;  monastic,  126. 

W. 

"Wadiatio,"  477,  586. 

"Wadium,"  484. 

Waifs,  284. 

Warrantor,  does  appear  in  court,  551; 
does  not  appear  in  court,  5.50. 

Warranty,  because  of  eviction,  549; 
formal,  551;  simple,  551. 

"Wergeld,"  67;   of  women,  223,  n.  1. 

Wife,  status  of,  14;  general  incapa- 
city of,  171;  as  tradeswoman,  171; 
extrajudicial  acts  of,  172,  173; 
judicial  acts  of,  173;  separate  proji- 
erty  of,  175;  authorization  of, 
by  husband,  170;  authorization  of, 
by  husband  how  given,  173;  supple- 
mentary authorization  of,  by  hus- 
band, 174;  effects  of  authorization 
of,  by  husband,  176;  lack  of  author- 
ization of,  by  husband,  176;  au- 
thorization of,  third  parties,  177; 
husband's  right  of  correction  of, 
167;  disposal  of  share  brought  by, 
761;  rights  of,  over  property  jointly 
acquired,  762;  obtains  dower  on 
going  to  bed,  773;  rights  of,  over 
dower,  774;  rights  of,  over  dower 
during  marriage,  774;  rights  of, 
over  dower  at  death  of  husband,  776 ; 
movables  of,  790;  immovables  of, 
790;  obligations  contracted  by,  dur- 
ing marriage,  804;  offenses  of,  831; 


71.  4;  part  played  by,  835;  personal 
belongings  of,  837;  right  to  choose 
between  acceptance  and  renuncia- 
tion, 844. 

Will,  52,  684,  696;  alienation  by,  276; 
jurisdiction  over,  697;  capacity  to 
make  or  to  receive  by,  G97;  differ- 
ent forms  of,  699;  canon,  699;  mod- 
ern law  of,  700;  holographic,  700; 
nuncupative,  700;  by  public  deed, 
701;  ,  written  nuncupative,  701; 
formal,  701;  mystic,  701;  revoca- 
tion of,  701;  express,  701;  implied, 
701;  clauses  in  derogation,  702;  con- 
junctive, 702. 

Wine  to  seal  the  bargain,  494. 

Witnesses,  511. 

Woman,  emancipation  of,  26;  condi- 
tion of,  221;  in  public  law,  223; 
"wergeld"  of,  223,  n.  1;  changes 
in  condition  of,  225;  German  and 
Italian  law  on  status  of,  226; 
status  of,  in  France,  227;  Velleia- 
num  Decree  of  Senate  on,  227; 
married,  incapacity  of,  787. 

Writing,  obligation  by  means  of,  507; 
proof  by,  507;  public,  509;  private, 
510. 

Writs,  of  entry,  333;  of  arrest,  588, 
n.  4;  of  distraint,  591,  7i.  6;  of  en- 
cumbered marriage,  792. 

Written    law.     See    Countries    of 
Written  Law. 

Y. 

Year  and  a  day,  prescription  of,  354; 
repurchase  of,  445.     See  Tenure. 


"Zadruga,"  21. 


922 


H 


<? 


S  ^'^^ 


Date  Due 


-fr^ 


'^^^^ 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    001  142  619    4 


Library  Bureau  Cat.  No.  1137 


IDE  UBPAPX 


3  1210  01255  7185 


■^1 


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